J. C. Penney Co. v. Barrientez

• Decision Date: 26 October 1965
• Docket Number: No. 40724,40724
• Citation: 411 P.2d 841
• Parties: J. C. PENNEY COMPANY, a Corporation, and Charles Truhitte, Plaintiffs in Error, v. Mary BARRIENTEZ, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 841

411 P.2d 841

1965 OK 166

J. C. PENNEY COMPANY, a Corporation, and Charles Truhitte Plaintiffs in Error, v. Mary BARRIENTEZ, Defendant in Error.

No. 40724.

Supreme Court of Oklahoma.

Oct. 26, 1965.

Rehearing Denied Jan. 4, 1966.

Syllabus by the Court

1. As a general rule, the proprietor of a store who must, or by the exercise of reasonable care, could discover an artificial condition upon his premises which he should foresee exposes his business visitors to an unreasonable risk and who has no basis for believing that they will discover the condition or realize the risk involved, is under a duty of exercising ordinary care either to make the condition reasonably safe for their use or to give warning adequate to enable them to avoid the harm.

2. This duty is not limited to conditions known to be dangerous but extends to those which might have been found dangerous by the exercise of ordinary care.

3. Under the circumstances of this case, evidence that a store's stairway was littered, or strewn, with cigarette butts and papers, as much as 30 minutes before plaintiff slipped and fell on said stairway, was sufficient for submission of the case to the jury on the question of defendants' constructive notice that a dangerous condition existed there.

4. A managing agent of a rretail store is answerable in damages for personal injuries suffered by the store's customers from dangerous conditions on the premises in his possession or under his control, for which he is responsible to the store's owner-proprietor, where the injuries are those for which the proprietor-owner would also be liable.

5. Evidence examined and Held: Sufficient to go to the jury on the question of the defendant store manager's liability for plaintiff's alleged injuries.

6. Generally, any suggestion by plaintiff, plaintiff's counsel or any of plaintiff's witnesses that defendant is covered by liability insurance, whether accomplished inadvertently or intentionally, is improper and prejudicial to defendant.

Appeal from the District Court of Oklahoma County; W. P. Keen, Assigned Judge.

Action by the patron of a department store, as plaintiff, against the store's owner and its manager, as defendants, for damages for personal injuries from her fall on the store's stairway. After the overruling of defendant's motion for a mistrial, a verdict and judgment for plaintiff, and the overruling of defendants' motion for a new trial, the latter appealed. Reversed and remanded with directions.

Monnet, Hayes, Bullis, Grubb & Thompson, by Glen H. Grubb, Oklahoma City, for plaintiffs in error.

Lampkin, Wolfe & Blankenship, by Raymond Burger, Oklahoma City, for defendant in error.

BLACKBIRD, Justice.

This is an appeal in one of a category of cases now commonly called 'slip and fall' cases. The fall in this case occurred about 7:00 P.M., on October 6th, 1960, when defendant in error (hereinafter referred to as plaintiff) while walking down the stairway between the street floor, or 'street-level' floor, and the second floor of the department store then operated by the J. C. Penney Company, and managed by Charles Truhitte (hereinafter referred to by surname and/or as defendants) at 303 West Main Street, in Oklahoma City, slipped and fell, incurring bodily injuries.

At the trial, plaintiff testified, in substance, that the cause of her fall was her left foot slipping out from under her when stepping on a small, hard, round object on one of the stairs. She further testified that she didn't know whether the object was a marble, or a piece of candy, but it felt and looked like a marble; and, that after she slipped, she heard this round, ball-like, object rolling down the remaining steps (6 or 7) to the stairway landing. She further testified that she did not see the object before her fall, but that a man, who came up the steps from the store's street floor, and later took charge of completing her shopping for her (while she was reclining in the store's lounge) picked up the object and said it was brown candy, but wouldn't let her have it. The object was not produced at the trial, but the store's manager, Truhitte, while testifying as a witness for defendants, after identifying himself as the man who completed plaintiff's shopping for her, denied he ever saw, or handled, any object such as the one plaintiff claims to have caused her fall, and, in effect, disclaimed any personal knowledge of the cause of the accident.

While describing what occurred after her fall, plaintiff testified, on cross-examination, concerning a contact she had with a woman, who was identified by other evidence as Wilma Mae Peek, Truhitte's secretary, as follows:

'She took my name and address and she said if I needed to go to a doctor, well, I would, and they would pay for it, that they had insurance for that and they would pay for it, for me to go, and then when my husband came up, well, to told them that he was going to take me and asked them was there any doctor that they--any special doctor, that they wanted him to take me to, and they said, 'No, just take her to any doctor.'' (Emphasis added.)

Defense counsel thereupon moved for a mistrial on the ground that plaintiff had voluntarily injected 'insurance' into the trial, but this motion was overruled and exceptions allowed.

Before the close of plaintiff's testimony, in which it had been established, among other things, that she was a married woman living with her husband, she offered in evidence, in support of her alleged damages, unpaid bills she had received from her doctor, as well as her hospital. Defendants objected on the ground, in substance, that these bills represented obligations of plaintiff's husband, rather than of hers, and therefore were not proper items of damages in an action like this, in which she was the sole plaintiff.

Before all of plaintiff's evidence was in, her counsel read into the record portions of a deposition previously taken from manager Truhitte. Defense counsel moved that this evidence be stricken, maintaining it was not binding on his employer, the Penney Company. When plaintiff's counsel represented that he was offering the deposition portions against both of said defendants, the motion to strike was overruled.

At the close of plaintiff's evidence, defendants separately demurred to it. These demurrers were overruled, and, after both sides and rested, defendants separately moved for directed verdicts. These, likewise, were overruled. After the trial court submitted the case to the jury, a verdict was returned for plaintiff in the sum of $2500.00, and judgment was entered accordingly. After the overruling of defendants' motion for a new trial, they perfected the present appeal.

Defendants' various assignments of error are incorporated in their briefs as 11 propositions but, for the purpose of their argument, they have combined some of them.

Under their Propositions 3, 4, 8, 9, 10, and 2 (in so far as the latter relates to the Penney Company) defense counsel, with apparent reference to the trial court's alleged errors in overruling their motions for directed verdicts, argue that there was no evidence of negligence on the part of either defendant. They call our attention particularly to the absence of any evidence showing how the marble, or candy ball, happened to be on the stairway, or how long it had been there when plaintiff stepped on it.

It was established that the Penney store does not sell marbles or candy; and there was no evidence to suggest that the involved object was placed there by either of the defendants, or any of their associates or employees. When interrogated about the matter, plaintiff testified specifically that she did not see that object when she ascended the stairway to shop on the store's second floor 30 minutes before the accident, but she insisted that she did see cigarette butts and pieces of paper strewn the full length of the stairway. She was positive, however, that it was neither of these that caused her fall. Her testimony, as to the stairway being littered with cigarette butts and paper, was contradicted to the extent hereinafter shown.

Manager Truhitte testified, among other things, in substance, that the day of the accident was Thursday, one of the two days each week when the Penney store stayed open continuously from 9:30 A.M., to 8:30 P.M. As to the Store's 'housekeeping', he deposed that a Penney employee, named Van Blackburn, who the witness referred to as the 'Building Maintenance Manager' was directly responsible to the store's assistant manager, and was in charge of floor cleaning in the store. He further testified that, on the date of the accident, the store's cleaning crew consisted of a maid, Lena Reed, and a janitor named Robert Forney. Truhitte further testified that Forney was no longer in Penney's employ, and was 'said to be in California.' He stated that Lena Reed was still working at the store. (She did not testify). As to cleaning practices in the store, Truhitte testified that prior to its opening each day, the store was cleaned completely '. . . and the maid does detail pickup on the lounges and the stairways about three additional times a day, at about 11:00 o'clock in the morning, about 3:00 o'clock in the afternoon and abut whatever her checkup time is, 4:30 or 5:00 in the evening.' Truhitte further testified that the maid and janitor work independently of each other and that the maid's schedule of work is controlled by the assistant manager, to whom she is directly responsible. He further testified that the maid is the only Penney employee having the direct and individual responsibility of cleaning the subject stairway during the day. As to the two days each week that the store was open until 8:30 P.M., Manager Truhitte's cross examination reads as follows:

'Q What arrangements did you have, or have you made, to have some person take on her responsibility of cleaning those steps when you are open late from five until...