Jones v. Satterfield Development Co.

• Decision Date: 20 September 1972
• Docket Number: No. 7221SC576,7221SC576
• Citation: 16 N.C.App. 80,191 S.E.2d 435
• Court: North Carolina Court of Appeals
• Parties: Allen D. JONES v. SATTERFIELD DEVELOPMENT COMPANY and Billy R. Satterfield.

Page 435

191 S.E.2d 435

16 N.C.App. 80

Allen D. JONES v. SATTERFIELD DEVELOPMENT COMPANY and Billy R. Satterfield.

No. 7221SC576.

Court of Appeals of North Carolina.

Sept. 20, 1972 Certiorari Denied by Supreme Court Nov. 8, 1972.

White & Crumpler, by James G. White and Michael J. Lewis, Winston-Salem, for plaintiff appellee.

BRITT, Judge.

Defendant's first assignment of error is addressed to the pleadings. Defendant contends that since the original complaint served in this action named only Satterfield Development Company as defendant and no new complaint or amendment was filed after Billy R. Satterfield was made a party defendant, that the complaint as originally filed fails to state a claim upon which relief can be granted against the individual defendant and since the trial court dismissed the action as to the corporate defendant, the entire action should now be dismissed. Defendant moves this court to dismiss the action under G.S. § 1A--1, Rule 12(b)(6), for failure to state a claim upon which relief can be granted. The record does not show that a Rule 12(b)(6) motion was made by the individual defendant at trial.

The question of whether a motion to dismiss an action for failure to state a claim upon which relief can be granted can for the first time be raised on appeal was answered in the negative by Morris, Judge, speaking for this court in the recent case of Dale v. Lattimore, 12 N.C.App. 348, 183 S.E.2d 417 (1971), cert. den. 279 N.C. 619, 184 S.E.2d 113. No useful purpose would be served by repeating what was said there. The assignment of error is overruled.

Defendant next assigns as error the failure of the trial judge to direct a verdict for defendant at the conclusion of all the evidence for that plaintiff failed to show actionable negligence, and failure to enter judgment for the defendant notwithstanding the verdict or to set the verdict aside.

In deciding whether a plaintiff's evidence is sufficient to withstand a defendant's motion for a directed verdict in a jury case, both the trial and appellate courts must adhere to the same principles that governed under our former procedure with regard to sufficiency of evidence to withstand a motion for nonsuit under former G.S. § 1--183. Pergerson v. Williams, 9 N.C.App. 512, 176 S..E.2d 885 (1970); Sawyer v. Shackleford, 8 N.C.App. 631, 175 S.E.2d 305 (1970); Musgrave v. Mutual Savings & Loan Assoc., 8 N.C.App. 385, 174 S.E.2d 820 (1970). All of plaintiff's evidence must be taken as true and considered in the light most favorable to him giving to plaintiff the benefit of all reasonable inferences and resolving all inconsistencies in his favor. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969); Pergerson v. Williams, Supra.

The issue submitted by this assignment of error is whether plaintiff's evidence in this case, when considered in the light most favorable to plaintiff, is sufficient to support the jury finding. We agree with the trial judge that it is.

Plaintiff introduced evidence which, if believed, tended to show that a foreign substance, oil, was present on the approach area of the lane on which plaintiff tried to bowl, that the presence of this foreign substance was reported to defendant's manager prior to the time plaintiff arrived to bowl, and that plaintiff without knowledge of its presence slipped and fell on this slippery substance sustaining personal injury. Considered in the light most favorable to plaintiff, the evidence tended to establish negligence on the part of the defendant with injury to plaintiff proximately resulting therefrom. 'Where the slippery substance is placed on or negligently applied to the floor by the proprietor of his servants or employees, the proprietor is liable if injury to an invitee proximately results.' Forrest v. S. H. Kress & Co., 1 N.C.App. 305, 308, 161 S.E.2d 225, 227 (1968). Further, defendant denied the presence of a foreign substance on the approach area and said that if the presence of oil was reported, it was removed immediately. The facts were in dispute and as Sharp, Justice said in Cutts v. Casey, 278 N.C. 390, 418, 180 S.E.2d 297, 312 (1971): "A verdict may never be directed when the facts are in dispute. The judge may direct a verdict only when the issue submitted presents a question of law based on admitted facts."

We hold that the trial court did not err in denying defendant's motions for directed verdict, for judgment n.o.v., and to set the verdict aside. G.S. § 1A--1, Rule 50.

Defendant's third assignment of error relates to that portion of the trial judge's instruction to the jury that charged as follows:

'So now, members of the jury, as to this first issue, I instruct you that if you find from the evidence and by its greater weight that the defendant, Billy Saterfield, or his agent or employee, negligently created a dangerous condition on the player approach to bowling alley lane No. 10 by putting oil or Some other slippery substance there when he knew, or should have known, a bowler was likely to go there and to slip on it, or if you find by the greater weight of the evidence that a Foreign substance was on the floor at this place where the plaintiff was injured . . ..' (Emphasis added.)

Defendant contends that the trial court failed to declare and explain the law arising on the evidence in conformity with G.S. § 1A--1, Rule 51(a), by failing to limit the jury determination of negligence to the absence or presence of Oil on the approach.

Here, plaintiff was an invitee of defendant--an invitee being a person who goes upon premises for the mutual benefit of himself and the possessor. 6 Strong, N.C.Index 2d, Negligence, § 52; Pafford v. J. A. Jones Constr. Co., 217 N.C. 730, 9 S.E.2d 408 (1940); Quinn v. P. & Q. Supermarket, Inc., 6 N.C.App. 696, 171 S.E.2d 70 (1969). The fact that plaintiff was an invitee did not make defendant an insurer of his safety while he was a customer on the premises; defendant is liable to plaintiff only for injuries sustained as a result of defendant's actionable negligence. Farmer v. Wellons Village Shopping Center Drug Corp., 7 N.C.App. 538, 173 S.E.2d 64 (1970).

Since plaintiff was an invitee, it was defendant's duty to exercise ordinary care to maintain the premises intended for plaintiff's use in a reasonably safe condition and thus not expose him unnecessarily to danger; and, further, to warn plaintiff of hidden defects and dangers of which defendant had knowledge, or in the exercise of...