J. Weingarten, Inc. v. Gauthier

• Decision Date: 12 July 1957
• Docket Number: No. 6105,6105
• Citation: 305 S.W.2d 181
• Parties: J. WEINGARTEN, Inc., Appellant, v. Joseph J. GAUTHIER et ux., Appellees.
• Court: Texas Court of Appeals

Page 181

305 S.W.2d 181

J. WEINGARTEN, Inc., Appellant, v.Joseph J. GAUTHIER et ux., Appellees.

No. 6105.

Court of Civil Appeals of Texas, Beaumont.

July 12, 1957.

Rehearing Denied Sept. 18, 1957.

Remittitur Filed Sept. 24, 1957.

Marcus, Weller & Evans, Beaumont, for appellant.

Keith, Mehaffey, McNicholas & Weber, Beaumont, for appellee.

HIGHTOWER, Justice.

The suit was to recover damages for personal injuries sustained by Helen Gauthier, while a business invitee in a retail grocery store operated by appellant, J. Weingarten Inc., in Port Arthur, Jefferson County, Texas.She was joined by her husband, Joseph Gauthier.Appellees' cause was pitched on the doctrine of res ipsa loquitur.

The petition alleges that on September 19, 1955, the appellee entered appellant's store and made purchases therein and while leaving said store by means of a 'magic eye' door, the same suddenly closed upon her body, striking her with great force and inflicting serious and painful injuries upon her; that the door provided for the public by appellant was a peculiar type of mechanical door for use by the patrons and prospective patrons of said store which said door is activated by some type of electrical impulse when a person crosses a ray of light; that, under ordinary circumstances, said doors open when the ray of light is interrupted by a person crossing its path and said doors stay open until such person has had ample time to go through said door, whereupon the said door automatically closes unless another person immediately interrupts said ray of light; that the type of door and door opener in use in the defendant's said store is not the usual and customary type of door in general use throughout Jefferson County, Texas, but upon the contrary is a type found in only a few places therein; that these plaintiffs are not versed in electricity or electronics and are unable to describe the exact means, method, and manner in which said doors are designed to operate but they do allege that such knowledge is known to the defendant and its agents; further, the plaintiffs allege that the said door and door opener used by the defendant in its said store ordinarily, usually, and but for some negligent act, wrong, or omission of the defendant, works and permits patrons to enter or leave said store without danger of physical injury or harm to their person; that the mechanism of said door and its opener are exclusively within the possession of the defendant and not within the possession of the plaintiffs; that, by reason of the foregoing, the plaintiffs herein are entitled to rely upon the doctrine of res ipsa loquitur in holding the defendant liable for the events hereinafter set forth.

Plaintiffs show that heretofore, and on or about the 19th day of September, 1955, the plaintiff, Helen Gauthier, was a patron of the defendant's said store, having entered the same to make purchases of merchandise therein and having actually made some purchases therein; that, upon said date, as she was leaving the store by means of the exit furnished for patrons, the heavy door which was opened by the electrical impulse as aforesaid, suddenly and without warning closed upon the plaintiff's body striking her with great force and violence and inflicting serious, permanent, and painful injuries upon her as shown more specifically hereinafter.* * *

Prefaced by one untenable exception to the petition, the answer consisted of a general denial, contributory negligence and unavoidable accident.

The following were the liability issues submitted to the jury:

'Special IssueNo. 4

'Do you find from a preponderance of the evidence that the door opening mechanism was under the exclusive control and direction of the defendant, J. Weingarten, Inc., and its agents and employees?

'Answer: 'Yes' or 'No.'

'Answer: Yes.

'If you have answered the preceding special issue by 'Yes' and only in such event, then answer:

'Special IssueNo. 5

'Do you find from a preponderance of the evidence that the defendant failed to use ordinary care in the maintenance of the door mechanism on the occasion in question?

'Answer: 'If failed,' or 'It did not fail.'

'Answer: It failed.

'If you have answered the preceding special issue by 'It did fail', and only in such event, then answer:

'Special IssueNo. 6

'Do you find from a preponderance of the evidence that such failure to use ordinary care, if you have so found, was a proximate cause of the injuries, if any, sustained by Helen Gauthier?

'Answer 'Yes' or 'No.'

'Answer: Yes.'

Appellant timely and in limine moved the trial court for an instructed verdict and judgment non obstante veredicto, by motions embodying substantially the points of error upon which this appeal is predicated, and these motions having been refused it has here grouped and briefed its first five points of error together, and they will be so determined by this court.

As stated by appellant, points 1 to 5 advance the proposition that there was no evidence, or at least insufficient evidence to show any negligence of appellant proximately causing any injury to Mrs. Helen Gauthier, regardless of whether the inference allowed under the res ipsa loquitur rule is indulged; that even if the doctrine of res ipsa loquitur is applicable to the situation shown by this record, there is a lack of proof as to certain vital elements of the doctrine; and that while appellant contends that the res ipsa loquitur doctrine is inapplicable here, nevertheless certain necessary findings of the jury are lacking; that this amounts to the proposition that the judgment is without proper support in either the evidence or jury findings.

The opinion by the Commission of Appeals in Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659, 665, and authorities there cited, has considerably moulded our opinion that appellant's first five points are without merit in the circumstances.There we find the principal hurdles a plaintiff must surmount when resting his case on this doctrine:

* * * 'the thing which cause[s] the injury complained of must be under the management or control of [the]defendant, and the accident must be such as in the ordinary course of things does not happen if those who have the management or control use proper care.'

Before analyzing the evidence in the light of the legal principles relative thereto we should state that it appears undisputed that the appellant had the exclusive control and management of the door in question.The testimony relevant to the latter portion of the foregoing principle follows:

Mrs. Gauthier stated that on the date of her injury she had gone to appellant's store and after making certain purchases, was making her exit through the door in question in the normal and customary manner when the mishap occurred as alleged, suddenly and without warning.We feel that the 'normal manner' is so commonly known as not to require a detailed description of her testimony in such respect.Suffice it to say that her testimony was in substantial accord with the allegations in her petition.

Sam Vacarella, Manager of appellant's store, testified substantially that the appellant kept its own crew of maintenance employees for the repair work ordinarily required on the doors, but that on some occasions mechanics were employed from a firm in Houston, Texas, to make these repairs; that immediately after the accident he had ordered the door in question secured as a precaution against further accidents; that on one day prior to the Saturday immediately following the Monday on which Mrs. Gauthier was injured, one of appellant's repairmen had come over from Houston and fixed the door; that

'Q.But when you are going out the 'out door', there will nothing happen to you if the thing is working right, will it?A.No, sir.

'Q.If anybody gets hurt in it, then there is something wrong with the door, isn't there?A.That's right.

'Q.There is no doubt in your mind about that?A.That's right.

'Q.Nobody else does, or is supposed to do anything with that door but Weingarten's?A.That's right.'

Pressley Huval, appellant's assistant superintendent of maintenance and construction from Houston, stated that work orders were used by the repairmen after work had been done to the electrical and mechanical equipment of appellant's stores and that they were thereafter turned in to him in Houston.It has been noted that this witness made no explanation of what was done in the way of repairs to the door in question immediately following Mrs. Gauthier's injury, nor was there any offer made of the records allegedly evidencing such repairs.

James G. Greer, offered by appellant as a man well versed and experienced in the maintenance and repair of such doors, stated that shortly after the accident he had dispatched one of his maintenance men from Houston to repair the door; that the repair work was done under his orders and directions, and that he had a record of what was done to the door.He offered no explanation of what was found to have been wrong with the door, nor was the record, which he professed to possess offered in evidence.

We are of the opinion that the foregoing testimony established a prima facie case for the jury's consideration under the doctrine of res ipsa loquitur and had the effect of placing the burden of rebutting its effect upon the appellant by introducing evidence to explain or otherwise overcome the presumption or inference that the injury complained of was due to negligence.This they failed to do.Their only effort in such connection being a detailed statement by witness Greer of things that could have caused it--not what actually did cause the malfunction of the door.His testimony to this effect being that there could be a short in the electrical devices operating the door, and that such could cause the door to fail to remain open long enough for a person to pass through; that a cell itself in the electrical mechanism could have failed,...