J. Weingarten, Inc. v. Reagan
| Decision Date | 04 April 1963 |
| Docket Number | No. 4098,4098 |
| Parties | J. WEINGARTEN, INC., Appellant, v. Joseph E. REAGAN et ux., Appellees. |
| Court | Texas Court of Appeals |
Vinson, Elkins, Weems & Searls, B. Jeff Crane, Jr., and W. H. Drushel, Jr., Houston, for appellant.
Talbert, Giessel, Cutherell & Barnett, Robert C. Barnett, Houston, for appellees.
This is an appeal from a judgment for plaintiff in a slip and fall case. Plaintiffs instituted suit against defendant for injuries sustained by Mrs. Reagan when she slipped and fell on a 'bean' lying on the floor in defendant's store. Trial was to a jury which found:
1) Plaintiff slipped and fell on a green bean in defendant's store.
2) Defendant or its employees had actual knowledge of the presence of the bean on the floor, prior to plaintiff's fall.
3) Following such actual knowledge of the presence of the bean on the floor, defendant, (or its employees) was negligent in failing to remove the bean from the floor.
4) Such negligence was a proximate cause of plaintiff's injuries.
5) Plaintiff did not fail to maintain a proper lookout for objects on the floor.
7) The occurrence was not an unavoidable accident.
8) Plaintiffs' damages are $3750.
The Trial Court rendered judgment for plaintiffs on the verdict.
Defendant appeals, contending:
1) There was no evidence that defendant or any employee of defendant had any knowledge of the presence of the bean on the floor.
2) There was no evidence that defendant or any employee of defendant other than a Mrs. Myrick, had any opportunity to remove the bean from the floor prior to the accident.
3) Plaintiff was guilty of contributory negligence, in failing to keep a proper lookout, as a matter of law, and such negligence was a proximate cause of her injuries.
We revert to Contentions 1 and 2. It is undisputed that Mrs. Reagan slipped and fell on a green bean in defendant's store. Mrs. Reagan testified that after she was picked up they found a green bean on the heel of her shoe. She then testified:
'They took me to the produce girl to call someone to held me. The produce girl said, 'I told the boy to remove those beans."
Counsel for defendant objected on the ground that the evidence was hearsay; such objection was overruled by the court.
Mrs. Reagan then testified:
Q. 'What did she say?'
A. 'She said, 'I told the boy to get those beans off the floor, but I see he didn't do it."
Defendant contends the foregoing was hearsay; was not res gestae; and should have been excluded.
Unless the foregoing was admissible, there is no evidence to support the jury's finding to Issue 2.
Such testimony is admissible as an admission. Admissions are received as exceptions to the hearsay rule. Prior declarations or statements of a person are admissible against him to show he had knowledge of existing facts. 24 Tex.Jur.2d p. 227; Galveston, H. & S. A. R. Co. v. Fitzpatrick, Tex.Civ.App., Er.Ref., 91...
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