John Gerber Co. v. Smith

• Decision Date: 18 July 1924
• Citation: 263 S.W. 974,150 Tenn. 255
• Parties: JOHN GERBER CO. v. SMITH (TWO CASES).
• Court: Tennessee Supreme Court

263 S.W. 974

150 Tenn. 255

JOHN GERBER CO. v. SMITH (TWO CASES).

Supreme Court of Tennessee.

July 18, 1924

Certiorari to Court of Civil Appeals.

Two actions, one by Mrs. L. D. Smith, the other by L. D. Smith against the John Gerber Company. Consolidated and tried together. Judgment for plaintiffs was reversed and remanded by the Court of Civil Appeals, and both plaintiffs and defendant bring certiorari. Judgment modified, and as modified affirmed.

Ewing King & King and H. P. Posert, all of Memphis, for plaintiffs.

Wilson Gates & Armstrong and Frank H. Gailor, all of Memphis, for defendant.

HALL J.

These two suits for damages were instituted in the circuit court of Shelby county against the John Gerber Company, who will hereinafter be referred to as the defendant.

One of the suits was instituted by Mrs. L. D. Smith to recover for personal injuries sustained by her in slipping and falling while walking across a polished hardwood floor of the building in which defendant operates a public café in the city of Memphis; the accident occurring on or about the 15th of September, 1922.

In her declaration Mrs. Smith alleges that she was a patron of defendant's café, and had gone in there for the purpose of purchasing a meal, and she further alleges that the defendant carelessly, negligently, and recklessly maintained the floor of its café in a very dangerous condition in that it was polished so highly, greased and oiled, that it was not safe for persons to walk upon.

Mrs Smith's declaration further alleges that defendant had, or could have had, knowledge of this dangerous condition, and that as a consequence of defendant's negligence she slipped and fell violently upon said floor, sustaining serious injuries, for which she sued in the sum of $5,000.

The other suit was instituted by her husband, L. D. Smith, to recover $1,000 for the loss of the services of his wife, and surgical and medical bills expended in an effort to have her cured of her injuries.

To both declarations defendant files pleas of the general issue and contributory negligence on the part of the plaintiff, Mrs. Smith.

By agreement both cases were tried together in the circuit court before the court and a jury and resulted in verdicts and judgments in favor of both plaintiffs; Mrs. L. D. Smith was awarded a recovery for $1,750 and her husband, L. D. Smith, was awarded $250.

Motions for new trials having been overruled in both cases, defendant appealed to the Court of Civil Appeals and assigned errors. That court sustained two of defendant's assignments of error and reversed the cases and remanded them for new trials. Other errors assigned by the defendant were overruled. Both plaintiffs and defendant have filed petitions for writs of certiorari, and the cases are now before this court for review.

Defendant, by its first assignment of error, insists that the Court of Civil Appeals erred in overruling its first assignment of error in that court to the effect that the trial judge committed error in not sustaining its motion for a directed verdict at the conclusion of the plaintiffs' proof, and at the conclusion of all the proof; and in failing to strike, on defendant's motion, all evidence of previous falls by other persons visiting said café.

Defendant did move for a directed verdict at the close of plaintiff's proof. This motion was overruled by the court, after which defendant introduced evidence in its own behalf. This amounted to a waiver of the motion for a directed verdict. Railway & Light Co. v. Henderson, 118 Tenn. 284, 99 S.W. 700. It was, therefore, necessary for defendant to renew its motion at the close of all the evidence. This it did not do. On this point the following occurred in the trial court:

"Mr. King: If your honor please, I want to first move the court to strike out all of the evidence and so instruct the jury with reference to the slipping or other falling on the floor of the building, for the reason that for that evidence to be admissible it must be affirmatively shown that the conditions were practically or actually the same, and the element of time also enters the equation, and it must be some time near the time of the accident.

I further want to move your honor, for the benefit of the record, and I very earnestly say that there has not been any evidence of negligence shown in this record. We put on every available witness, and they have all testified that the floor was treated as good as possible, and in accord with the best knowledge on the subject, and that the floor was not slippery. They testified they kept the floor up to the best standard of the art as they knew it, and that there was no particular condition in the floor at the time to cause the slipping, and I have been searching my mind to find what evidence the plaintiff had in the case of negligence.

The Court: Now, as to the testimony that has been admitted about other accidents, as to whether that is competent to prove negligence on the part of the defendant. Have you any authorities on that subject?

Mr. Armstrong: I can get them; Mr. Gailor is in the library right now.

The Court: I am not sure that that testimony should have been admitted to the jury, and I would like to hear your authorities.

The Court: I don't see, Mr. King, how I can exclude that testimony under the authority of this case. I have listened very much to your position in the matter, and I thought very probably that testimony was incompetent; but it seems to me that under that authority that testimony is competent and ought to be admitted, and that raises the question of negligence of the defendant in maintaining this floor, and I shall refuse the motion for a directed verdict.

Mr. King: Note an exception. Mr. Armstrong, will you agree to a jury of view?

Mr. Armstrong: No."

The foregoing nowhere shows that defendant moved the court to direct a verdict in its favor. It is true that the court, in making its ruling, used the following language:

"I don't see, Mr. King, how I can exclude that testimony under the authority of this case. I have listened very much to your position in the matter, and I thought very probably that testimony was incompetent, but it seems to me that under that authority that testimony is competent and ought to be admitted, and that raises the question of negligence of the defendant in maintaining this floor, and I shall refuse the motion for a directed verdict."

The record shows that the motion which was actually made by defendant was to have withdrawn from the jury the evidence of other falls by persons visiting defendant's café. This motion was seasonably made, having been made after the plaintiffs had introduced all of their evidence with respect to other falls, and after they had cross-examined defendant's witnesses on the subject. This was a matter which was a part of plaintiffs' proof in chief, and could not again be gone into in any rebuttal testimony that might be offered. It was therefore proper for defendant to make such motion at this time, and in the argument of the motion it was quite natural for counsel for defendant, in order to press upon the court the importance of the motion, by way of argument, to insist that there was no evidence of negligence. The statement of the court that with such evidence in the record "I shall refuse the motion for a directed verdict," was not responsive to the motion, and was doubtless inadvertently made.

Since defendant is seeking to put the trial judge in error because of his refusal to sustain its motion for a directed verdict in its favor, the burden is on defendant to show affirmatively that such a motion was made at the proper time, and refused by the court. This the record fails to show.

Furthermore, the record discloses that plaintiffs offered some rebuttal proof after defendant claims that it made its motion for a directed verdict, after which the alleged motion was not renewed. Such failure would have amounted to a waiver of the motion even if one had been made in the first instance.

We have carefully examined the remaining assignments of error urged by defendant in this court, and, without elaborating upon them, we have reached the conclusion that none of them are well grounded, and all of them are overruled. We do not mean, however, to be understood as passing upon the question of whether or not there was sufficient evidence to carry the case to the jury. No assignment of error was made in the Court of Civil Appeals, and none is made in this court, to the effect that there is no evidence to support the verdict of the jury. And, there being no motion for a directed verdict in defendant's favor, we have not undertaken to pass upon the facts.

We now come to a consideration of the assignments of error...