Johnson v. Wagner Provision Co.

• Citation: 141 Ohio St. 584,49 N.E.2d 925
• Decision Date: 09 June 1943
• Docket Number: 29444.
• Parties: JOHNSON v. WAGNER PROVISION CO.
• Court: United States State Supreme Court of Ohio

49 N.E.2d 925

141 Ohio St. 584

JOHNSON v. WAGNER PROVISION CO.

No. 29444.

Supreme Court of Ohio

June 9, 1943

Syllabus by the Court.

1. Those operating mercantile establishments owe the duty to exercise ordinary care toward their customers, but are not insurers of the customers' safety while on the premises.

2. Where a customer in a food market slips on a greasy substance dropped on the floor by another customer a short time Before and sustains injury by falling, there can be no recovery against the market proprietor when the evidence does not disclose a lack of ordinary care on his part or on the part of his employees.

3. In the situation where a store customer is injured as a result of slipping on a greasy substance dropped on the floor by another customer, it must be established as a prerequisite to recovery against the storekeeper (1) that he or one of his employees had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly or (2) that the danger had existed for a sufficient time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care.

4. The doctrine of agency by estoppel, as it might be invoked by a plaintiff in a tort action, rests upon the theory that one has been led to rely upon the appearance of agency to his detriment. It is not applicable where there is no showing of induced reliance upon an ostensible agency.

The Wagner Provision Company, an Ohio corporation, operated a retail food market at 172 South Main street in the city of Akron, and dealt in meats as a part of its business. The room tenanted was some 25 feet wide by 90 feet deep, running in an easterly and westerly direction. The company's refrigerated counters of porcelain and glass, containing meats, extended along the south side of the room for a considerable distance. On the other side were compartments or stalls from which dairy products, bakery goods, vegetables, etc., were sold. Some of these compartments were rented to persons or concerns having no connection with the Wagner Provision Company, but there were no signs or notices to show that businesses independent of the provision company were being conducted. There was an aisle through the middle of the storeroom, the floor of which was of a composition material known as terrazza.

In the late afternoon of February 3, 1941, Mrs. Agnes B. Johnson walked into the market, bought some meat and started to leave. She saw some other meat she wished to purchase and, in returning to the meat counter, slipped on a greasy substance on the floor and fell, injuring her head, left side and particularly her back, left elbow and left hip.

She later commenced an action to recover damages for such personal injuries against the Wagner Provision Company in the Court of Common Pleas of Summit county.

At the trial it developed that another customer had dropped a glass jar of mayonnaise or salad dressing on the floor in defendant's market. It broke and the contents splattered. Felix Garlando, in charge of selling vegetables and an employee of the Mass. Market Company, which rented its space from the defendant, witnessed the incident, promptly secured a broom and dust pan or box from the rear of the storeroom and swept up as much of the mayonnaise as he could. According to his testimony he then retraced his steps to get a mop. It was during this interim that plaintiff slipped on a part of what remained of the mayonnaise.

The only evidence tending to connect the defendant company itself with knowledge that the mayonnaise had been spilled, was given by a Mrs. Bowman, another customer. On direct examination she stated:

'Q. Did the clerks in back of the meat counter--did they look and see what was there? A. Yes.

'Q. Did they see this contents--this salad dressing on the floor?

'Mr. Kelly: I object.

'A. Yes.

'The Court: The objection is sustained.

'Mr. Kelly: I move that the jury be instructed to disregard the answer.

'The Court: It is objectionable. It is the duty of the jury to disregard that question and answer.

'Mr. Finley: Note my exception.

'Q. State whether or not, Mrs. Bowman, you saw any of the glass at the spot or the place where this oil dressing or salad dressing lay?

'Mr. Kelly: I object.

'The Court: She may answer.

'Mr. Kelly: I except.

'A. Well, the clerk back of the counter looked when the salad dressing dropped.

'Q. Is that one of the meat clerks?

'Mr. Kelly: I object.

'Mr. Finley: I will withdraw that.

'Q. What clerk was that, that looked? A. Well, it was the clerk that was waiting on the meat counter.

'Q. Where was he standing at the time that he looked at it? A. Well, almost directly in front of me. He was waiting on the woman beside me.'

Mrs. Bowman further said that the plaintiff slipped and fell two minutes after the mayonnaise had been swept up.

The plaintiff testified that to the best of her knowledge it was three to five minutes from the time she entered the store until she fell. Garlando estimated it was two and one-half minutes after the jar of mayonnaise was dropped when the plaintiff suffered her mishap.

Plaintiff called as her witnesses two of the defendant's several clerks who were on duty behind the meat counter on the afternoon of February 3, 1941. Both of them denied having seen the jar dropped or the mayonnaise on the floor.

At the conclusion of plaintiff's evidence, counsel for the defendant moved that the evidence be withdrawn from the jury and the jury instructed to return a verdict for the defendant. This motion was overruled. The defendant then rested and renewed its motion for a directed verdict, which was likewise overruled.

A verdict in the sum of $5,000 was returned in favor of the plaintiff by ten of the jurors. This was followed by a timely motion for a new trial and also by a motion for judgment notwithstanding the verdict. The court sustained the latter motion, entered judgment for the defendant and overruled the other motion without consideration on its merits.

Thereupon, plaintiff took an appeal on questions of law to the Court of Appeals, where, by a divided vote, the judgment of the Court of Common Pleas was reversed for error in rendering judgment for the defendant notwithstanding the verdict for the plaintiff, and the cause was remanded for a trial de novo. The appellate court refused to grant the request of the plaintiff to enter judgment for her on the jury's verdict.

Finding the judgment it had announced in conflict with one pronounced by the Court of Appeals of the Eighth Appellate District, in the case of Morgan v. American Meat Co., Inc., 46 N.E.2d 669, 7 Negligence Cases 1007, in which a motion to require a certification was overruled, the record was certified to the Supreme Court for review and final determination.

Plaintiff has filed in this court a cross-assignment of error in which it is asked 'that the judgment of the Court of Appeals be affirmed insofar as it reverses the action of the trial court in rendering judgment non obstante veredicto, and reversed insofar as the Court of Appeals failed and refused to enter judgment in favor of this appellee and cross-appellant on the verdict of the jury in the trial court and in remanding the cause to the trial court for a retrial * * *.'

Wise, Roetzel & Maxon and William A. Kelly, all of Akron, for appellant.

Raymond J. Finley, of Akron, for appellee.

ZIMMERMAN Judge.

In considering this case, four propositions suggest themselves:

1. The defendant had nothing to do with creating the hazard encountered by plaintiff.

2. A very brief period elapsed between the dropping of the jar of mayonnaise by a customer and the fall of the plaintiff.

3. Except for the dubious conclusion of one witness, there is no evidence that the employees of the defendant knew of the mayonnaise on the floor.

4. If upon any theory defendant may be charged with the knowledge possessed by Felix Garlando, actually employed by another, Garlando took immediate steps to remedy the situation in an ordinary and usual way.

The rule which is recognized generally is thus stated in the first paragraph of the syllabus in the case of S. S Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132, as follows: 'Owners or lessees of stores owe a duty to the patrons of the store to exercise...