Kennett v. Federici

• Decision Date: 12 August 1939
• Docket Number: 27415.
• Citation: 93 P.2d 333,200 Wash. 156
• Parties: KENNETT v. FEDERICI et ux.
• Court: Washington Supreme Court

93 P.2d 333

200 Wash. 156

KENNETT v. FEDERICI et ux.

No. 27415.

Supreme Court of Washington

August 12, 1939

Department 1.

Action by F. A. Kennett against Frank A. Federici and Pearl E Federici, his wife, to recover damages for personal injuries alleged to have been sustained by the plaintiff as the result of slipping on the floor of a cafeteria owned and operated by the defendants. From an order granting a new trial, the defendants appeal.

Order affirmed.

Appeal from Superior Court, King County; Chester A. batchelor, judge.

Ballinger Huston & Boldt, of Seattle, for appellants.

Vanderveer & Bassett, of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought suit to recover damages for personal injuries alleged to have been sustained by him as the result of slipping on the floor of a cafeteria owned and operated by defendants. Trial by jury eventuated in a verdict in defendants' favor. The court granted plaintiff's motion for a new trial specifically on the grounds that certain instructions, although correct in law, were repetitious; that another instruction, though correct, was without the issues; and that still another was misleading. From the order thus disposing of the case, defendants have appealed.

Appellants make two contentions on the appeal: (1) that in any event the evidence was insufficient to support a verdict for respondent, and (2) that there was no prejudicial error attendant upon the giving of the particular instructions. Respondent, having a different theory of the law applicable to the case, presents an additional question under which he contends that the controlling instructions were incorrect constituting prejudicial error.

We will consider first the matter of the alleged insufficiency of the evidence.

Respondent's testimony, summarized and stated in narrative form, was as follows: For several years prior to 1937, Frank A. Federici, who will be referred to as if he were the sole appellant, operated a cafeteria lunchroom in the business section of Seattle. The food was customarily served to patrons from glass partitioned counters arranged along one side of the room. On the opposite side was a row of booths to which the patrons, after being served, carried their trays for the purpose of eating their meals. A center aisle about six feet in width extended the length of the room, at the rear of which was a water dispensary with glasses for use by the patrons. The floor of the room was smooth and had a polished surface.

At about noon April 10, 1937, respondent met his friend of many years, W. H. Woolridge, at the entrance of the cafeteria, and the two men went inside to have lunch together. After selecting their food at the service counter, they carried their trays across the aisle and deposited them on a table in one of the booths. Respondent then started toward the rear of the room to get a glass of water. He had taken but a few steps when his right foot slipped on a greasy spot which he had not previously observed. He at once tried to stop, but his left foot also slipped, whereupon he quickly caught hold of a post, and thus saved himself from falling. In doing so he experienced a stinging sensation in the right groin. However, he continued his course, toward the rear, procured a glass of water, returned to the booth, and sat down. As he did so, he was again seized with a severe pain. On his return to the booth, a woman employee was mopping the floor at the place where, in slipping, he had left several skid marks. Respondent's conversation with the woman is reported in a single paragraph of his testimony, as follows: 'I said something about there being grease on the floor and 'I came near taking a nasty spill.' And she said something to the effect that some customer had spilled it and she hadn't had time yet to clean it up.'

Respondent had been in the lunchroom about five minutes when the accident happened, and during that time nothing had been spilled on the floor.

After eating his lunch respondent left the place with his friend and subsequently went home alone in a street car. He made no complaint or report of the accident to the appellant.

After the pain in respondent's right side had subsided, a soreness developed, and a few months later it was found, upon examination by a physician, that respondent had a small hernia. In the following January, which was nine months subsequent to the accident, respondent, without any previous notice to appellant, filed suit to recover damages for the injuries alleged to have been sustained.

Respondent's testimony concerning the occurrence, including the statement made by the woman employee, was corroborated by the testimony of his companion Woolridge.

Appellant's evidence was confined to the testimony of himself and that of the former woman employee. Appellant testified that he had operated the cafeteria about ten years; that he had twenty-four employees, of whom twelve were on duty during the noon hour; that four of these served the patrons at the counter and one or two girls attended to removing the dishes and food left on the tables or dropped on the floor; that between four hundred and five hundred people usually ate in the cafeteria during the daily noon period, from 11:00 A. M. to 2:00 P. M.; that the place was swept and mopped regularly three times a day, once in the forenoon and twice in the afternoon and evening; that he knew nothing about the accident and had not heard of it until the summons and complaint were served upon him.

The other witness called by appellant was the woman designated by respondent as the person who had mopped the floor after he had slipped thereon. At the time of the trial she was no longer in the employ of appellant. She testified that she had seen respondent in the cafeteria on a number of occasions, but was not acquainted with him. On both direct and cross-examination she stated repeatedly that she had no recollection whatever of the accident and could not recall that she had ever had any conversation with respondent. She testified that the floor was swept regularly three times a day, and that sweeping and cleaning were among her duties while she was on shift; that she, as well as the other employees, had frequent occasion to remove particles of food dropped by customers and that, according to the rule of the house, it was done as quickly as possible.

Appellant's first assignment of error relates to the statement made by the former waitress while mopping the floor. No issue is raised against the competency of the declaration, as evidence, but the argument challenges the sufficiency of such evidence alone to support the burden cast upon respondent of showing appellant's knowledge of the substance on the floor.

Appellant proceeds upon the rule, well established in this state, that evidence of verbal declarations of the adverse party, where there are no corroborating facts or circumstances, is not sufficient to sustain a verdict of a jury upon a vital issue. Ludberg v. Barghoorn, 73 Wash. 476, 131 P. 1165; Jones v. Harris, 122 Wash. 69, 210 P. 22; Low v. Colby, 137 Wash. 476, 243 P. 18, 247 P. 475; Commercial Importing Co. v. Wear, 180 Wash. 669, 41 P.2d 777.

In each of those cases, however, the alleged declarant denied that he had made the statement attributed to him. In this case, the woman declarant did not deny making the statement. She merely testified that she had no recollection whatever concerning it or the transaction with which it was connected.

Evidence of the admission of a material fact by an adverse part...