J. Weingarten, Inc. v. Moore

• Decision Date: 08 May 1969
• Docket Number: No. 15474,15474
• Citation: 441 S.W.2d 223
• Parties: J. WEINGARTEN, INC., et al., Appellants, v. Herma Lee MOORE, Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 223

441 S.W.2d 223

J. WEINGARTEN, INC., et al., Appellants, v. Herma Lee MOORE, Appellee.

No. 15474.

Court of Civil Appeals of Texas Houston (1st Dist.).

May 8, 1969.

Rehearing Denied May 29, 1969.

Vinson, Elkins, Searls & Connally, B. Jeff Crane, Jr., Raybourne Thompson, Jr., Houston, for appellants.

Helm, Jones & Pletcher, George E. Pletcher, Houston, for appellee.

COLEMAN, Justice.

This is a suit for damages brought by an employee against a managerial employee and her employer, a non-subscriber under the Workmen's Compensation law of the State of Texas. The trial court entered a judgment for the plaintiff pursuant to a jury verdict. It is appellants' primary contention that there is no evidence of negligence on the part of the appellants, and that the trial court should have instructed a verdict in favor of them.

Herma Lee Moore had been employed by J. Weingarten, Inc. as a grocery checker for more than a year at the time she sustained the injury for which she seeks damages. Some days or weeks prior to the accident a new check-out counter was installed in the store where she worked. A cash register was on a stand to the side of the counter. Appellee stood behind this cash register. On the counter at her side the customers placed the groceries they desired to purchase. The counter extended back past the cash register and the groceries were moved within reach of the checker by a conveyor belt. At the side of the checker a two-foot section of the counter was cut out, and sacks were placed in this 'well'. After the checker rang up the price of an article on the cash register, she would place it in one of the sacks. If an article was too bulky to be placed in the sacks, the checker had to lift it over the opening to the counter behind the well. When a large number of people were in line waiting to get their groceries checked, a porter would be assigned to place the groceries in the sacks. At these times the opening in the counter would be covered. The cover could not be placed over the opening without the express permission of the manager. There was not enough room behind the cash register for a helper so that if the checker needed help in lifting groceries the porter would have to work from the area used by customers. After the groceries were checked, the checker would lift the sacks up to the back counter.

On October 16, 1963, a customer purchased a 25-pound sack of sugar. While 25-pound sacks of sugar were regularly stocked, they were sold rather infrequently. Mrs. Moore did not remember ever having handled one before. The sugar was never sacked, but had to be lifted across the opening in the counter. Mrs. Moore had complained to the manager that it was to hard to lift heavy sacks from the sack well and across the opening. On this occasion she bent over and lifted the sack and then twisted around and tossed it across the opening onto the back part of the counter. In the course of this movement she injured her back.

In response to the special issues submitted the jury found: (1) Mrs. Moore's job required her to lift a 25-pound sack of sugar across the opening in the check-out counter; that this job requirement was negligence and a proximate cause of the injuries suffered by Mrs. Moore; (2) the designing of the check-out counter by J. Weingarten, Inc. in such a manner as to have a 'sack well' was such as to subject Mrs. Moore to excessive strain in the performance of her duties, which was negligence and a proximate cause of her injury; and (3) J. Weingarten, Inc. and its agents failed to give Mrs. Moore proper instructions as to the manner of lifting required of her in the method of checking employed by J. Weingarten, Inc., which failure was negligent and a proximate cause of the injury suffered by Mrs. Moore.

Appellant J. Weingarten, Inc. contends that there is no evidence to sustain the jury's answers to these issues and that the trial court erred in submitting them to the jury and in failing to sustain its motion for an instructed verdict for the reason that there is no evidence that J. Weingarten, Inc. was negligent in any respect. Appellant Paul W. Jones contends that there is no basis under the jury verdict for the rendition of a judgment against him.

Appellants' points are 'no evidence' points, and in passing on such points this Court must consider only the evidence supporting the verdict and the undisputed facts. Mr. Falcone, who occupied a managerial position with J. Weingarten, Inc., testified that the checkers were instructed to sack the groceries unless he gave them specific instructions to the contrary. The checkers were not permitted to place the cover over the sack wells without direct instructions to do so. Heavy, bulky objects such as 25-pound sacks of sugar, cartons or cases of soft drinks, or sacks of charcoal were not sacked, but had to be lifted over the sack well to the rear portion of the check-out counter. Mr. Jones was administrator and director of the customer Employee Insurance Service division of J. Weingarten, Inc., and acted as safety man at the time of the accident. He testified that the checkers were instructed to call for a porter anytime they had any items they felt they couldn't handle, but that he did not feel that a 25-pound sack of sugar was too much of a load for a lady checker. There were no porters specifically assigned to assist with the handling of groceries at the check-out counters. At times there would be no more than one porter in the store. The sack well would usually be covered and porters assigned to assist the checkers when the store was very busy. It was necessary to ask the lady at the bottle booth to get a porter if help was needed. There is evidence from which an inference could be drawn that the lifting of the 25-pound sack of sugar over the sack well was a job requirement as found by the jury.

The evidence is that the counter was waist high. The checker customarily faced the cash register and was required to bend from the waist and reach forward to pick up an item. She then would either twist around or shift her feet in order to move the item over the sack well to the back part of the counter. Appellee was lifting and twisting around in an effort to pitch the sack of sugar over the sack well when she sustained injuries to her back. There is evidence that most of the employees receiving injuries were injured while lifting. The evidence is sufficient to raise the negligence and proximate cause issues. There is no direct testimony that lifting a 25-pound sack of sugar while bent over and 'twist(ing) around to throw it', subjects one to an excessive strain. However, the probability that excessive strain will result from the handling of relatively heavy objects in the manner related is known to persons of ordinary experience. The testimony shows the store had previously operated with a different type of check-out counter having no sack well, which eliminated lifting and twisting from an awkward position. The evidence is sufficient to raise the issues of fact relating to the design of the check-out counter.

Appellants argue that appellee was the best judge of her physical capabilities and that no negligence is shown merely because a portion of her duties required that she lift a grocery item across the sack well since if she felt that the sack of sugar was too heavy, she could have requested and obtained assistance. They rely on the rule stated in Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977 (1947): 'The employer is not liable when he has provided help and injury results from the act of the employee in voluntarily proceeding to do the work without assistance. The same is true when sufficient help is nearby and available and the employee does the work alone without seeking or asking for assistance.'

This rule has been applied in a number of cases. Jackson v. Marshall, 243 S.W.2d 205 (Dallas, Tex.Civ.App.1951); Shumake v. Great Atlantic & Pacific Tea Company, 255 S.W.2d 949 (Dallas, Tex.Civ.App.1953, writ ref., n.r.e.). In each of these cases the employee voluntarily proceeded to do the work causing the injury alone when help was available. In this case the jury might reasonably have believed that Mrs. Moore was expected to handle 25-pound sacks of sugar alone, and that help was not available with reference to such an article.

Appellants also point to Great Atlantic & Pacific Tea Company v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943), holding that an employee cannot complain if an employer merely requires an employee to do the usual and customary work required of persons in his line of employment, or required by the character of the business in which he was...