J. C. Penney Co. v. Campbell, 37038
| Decision Date | 06 May 1958 |
| Docket Number | No. 37038,37038 |
| Parties | J. C. PENNEY COMPANY, a Corporation, Plaintiff in Error, v. Delilah CAMPBELL, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. In an action of legal cognizance tried to a jury, the verdict and judgment of the trial court based thereon will not be disturbed on appeal because of insufficiency of the evidence, if there is any evidence reasonably tending to support such judgment.
2. A storekeeper owes customers the duty to exercise ordinary care to keep aisles, passageways and such other parts of the premises as are ordinarily used by customers in a reasonably safe condition, and to warn customers of dangerous conditions upon premises which are known or which reasonably should be known to the storekeeper, but not customers; that storekeeper is not an insurer; and that the question of whether, in a given case, the storekeeper has been negligent in respect to his duty is usually a question of fact for the jury.
3. There is no reversible error where an examination of the instructions given, and ones refused, demonstrates that the trial court had performed its functions in giving instructions which reasonably covered defendant's theory of the case and fairly and amply presented the case to the jury.
4. Record examined and held, that the verdict of the jury and judgment of the trial court based thereon is amply sustained by the evidence, and that the instructions given fairly and amply presented the cause to the jury.
Appeal from the District Court of Okfuskee County; Jess I. Miracle, District Judge.
Action for damages for personal injuries. Jury verdict and judgment based thereon in favor of plaintiff. Defendant appeals. Affirmed.
Horsley, Epton & Culp, Wewoka, Dwight Tolle, Okemah, for plaintiff in error.
J. C. Daugherty, Hugh M. Sandlin, Holdenville, for defendant in error.
This is an appeal by J. C. Penney Co., a corporation, from a judgment rendered against it in the District Court of Okfuskee County in favor of Delilah Campbell for personal injuries received in falling on the floor in defendant's store, which injury is alleged to have been caused by the negligence of defendant.
The plaintiff alleged in her petition that while shopping in defendant's store she slipped and fell to the floor, causing her serious and permanent injury, which was caused by the negligence of defendant in that the floor where she fell was slick with oil or waxy substances which caused the floor to be slick, resulting in her slipping and falling; that the substances applied on the floor were not applied in the proper manner, but were left in large quantities at the place where plaintiff fell, all of which was known to the defendant or its employees, or could have been known with the exercise of reasonable care; that as a result of the fall she suffered a fracture of her shoulder and forearm and incurred hospital and doctor bills, suffered pain and permanent injury and prayed judgment for the sum of $3,000.
The defendant answered, admitting that it was a corporation licensed to transact business in this state, and that it operated a store in Henryetta; that plaintiff had an accident, but denied that it was caused by its negligence.
The trial resulted in a jury verdict in favor of the plaintiff which was approved by the trial court, and judgment rendered accordingly.
The defendant for reversal contends that there was no evidence of primary negligence on the part of the defendant; that the court erred in the admission of incompetent evidence over defendant's objections; and that the court erred in giving Instructions 9 and 10 and in refusing defendant's requested Instructions numbers 1 and 2, and in failing to instruct the jury on the defendant's theory of the case.
In considering defendant's first contention, we are governed by the long-established rule that in an action of legal cognizance tried to a jury, the verdict and judgment of the trial court will not be disturbed on appeal because of insufficiency of the evidence, if there is any evidence reasonably tending to support such judgment. Dippel v. Murr, Okl., 296 P.2d 169.
Defendant to sustain its contention that there was no showing of primary negligence cites and relies upon numerous cases, among which are: Whitehead v. Erle P. Halliburton, Inc., 190 Okl. 120, 121 P.2d 581; Tweed v. First Nat. Bldg. Corporation, 203 Okl. 31, 218 P.2d 356; Sears, Roebuck & Co. v. Johnson, 10 Cir., 91 F.2d 332; F. W. Woolworth Co. v. Williams, 59 App.D.C. 347, 41 F.2d 970, and Owen v. Kitterman, 178 Okl. 483, 62 P.2d 1193.
The plaintiff contends that none of the cases cited by the defendant are applicable to the facts in the instant case, and contends that the factual situation herein is so nearly parallel with the facts in the case of Safeway Stores v. Whitehead, 190 Okl. 464, 125 P.2d 194, that the rule announced therein is controlling in the instant case.
After a careful consideration of the numerous cases cited by the defendant, we conclude that the contention of the plaintiff has merit, and that the Safeway Stores v. Whitehead case, supra, is controlling authority under the facts and factual circumstances in the case at bar. This conclusion requires a narration of and an appraisal of the evidence on the issue of primary negligence; keeping in mind the rule announced in Safeway Stores v. Whitehead, supra, that a storekeeper owes customers the duty to exercise ordinary care to keep aisles, passageways and such other parts of the premises as are ordinarily used by customers in a reasonably safe condition, and to warn customers of dangerous conditions upon premises which are known or which reasonably should be known to the storekeeper, but not to customers; that a storekeeper is not an insurer; and that the question of whether, in a given case, the storekeepr has been negligent in respect to his duty is usually a question of fact for the jury.
The evidence in this case reveals that the plaintiff went into the defendant's place of business; while there in one of their main aisles slipped on a slick place in the floor and fell. There is no question but what the floor was slick, and on the main aisle in defendant's place of business, as is shown by the following questions propounded to plaintiff:
The companion of the plaintiff who was present at the time the plaintiff slipped and fell testified that the floor was slick. The following questions were asked and answered by her:
'
A Mrs....
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...court and find that they reasonably covered defendant's theory of the case and fairly presented the case to the jury. J. C. Penney Company v. Campbell, Okl., 325 P.2d 1056. Nevertheless we do feel that it is necessary to single out one of defendant's requested instructions for special menti......
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...63 A.L.R.2d at 603--604. Apart from illuminating case law elsewhere, plaintiff urges this case is governed by J. C. Penney Company v. Campbell, Okl., 325 P.2d 1056, which affirmed plaintiff's judgment, following Safeway Stores v. Whitehead, 190 Okl. 464, 125 P.2d In considering the above ca......
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