Kitts v. Shop Rite Foods, Inc.
| Decision Date | 20 March 1958 |
| Docket Number | No. 6281,6281 |
| Parties | Pauline KITTS and Willard F. Kitts, Plaintiffs-Appellants, v. SHOP RITE FOODS, Inc., a New Mexico Corporation, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
Willard F. Kitts, James T. Paulantis, Albuquerque, for appellants.
Gilbert, White & Gilbert, Santa Fe, for appellees.
This was an action in the district court of Santa Fe County, instituted by plaintiffs-appellants against defendant-appellee. Pauline Kitts seeks to recover damages for personal injuries sustained when she slipped and fell in one of defendant's food markets. He husband, Willard Kitts, seeks to recover damages for loss of consortium and for medical and hospital expenses occasioned by the injuries which Pauline Kitts suffered. Plaintiff alleges that she slipped and fell by reason of the slick, unsafe and dangerous condition of the floor in defendant's store. At the close of plaintiffs' case, on motion made by defendant, the trial court directed a verdict in favor of defendant.
The floor in question was made of concrete and had been washed and waxed some two weeks prior to the accident. The aisles had probably been swept in the intervening two weeks. There was uncontradicted testimony that the floor was traversed by some one thousand persons daily. There was no evidence that a foreign substance, such as grease or oil, was on the floor when and where plaintiff fell. Nor was there any evidence that there were any skid marks at this spot. No evidence was introduced that anyone else had fallen in the store.
Plaintiff testified that the condition of the floor where she fell was 'terribly slick and slippery'. She also testified that shortly after the accident, which occurred about 11 o'clock a.m., the store's assistant manager, Mr. Richardson, stated that he had just examined the place where plaintiff had slipped and that it was 'slick as ice'. Mr. Richardson, called as an adverse witness by the plaintiff, testified that he made no such statement and that he did not examine the spot where plaintiff had fallen until that afternoon.
Plaintiff did not notice the condition of ther floor in other parts of the store as compared with the spot where she fell. The floor at the place of the fall was examined shortly after the accident by several of the store employees and they testified that the place was no different or unusual than any other part of the floor.
It is necessary at this point to answer defendant's contention that the assistant manager's alleged declaration that the place where plaintiff fell was 'slick as ice' is not substantive evidence that the facts described are true. As defendant points out, plaintiff's testimony concerning the statement by the assistant manager was hearsay and was not competent as an admission of the defendant-principal. The rule regarding representative admissions is that testimony as to an agent's purported statements used to prove the facts asserted therein is limited to statements concerning matters upon which the agent is authorized to speak. Restatement, Agency Secs. 286, 288. There is no evidence in this case that the assistant manager had the required 'speaking authority'. Seal v. Safeway Stores, 48 N.M. 200, 147 P.2d 359. See McMurdo v. Southern Union Gas Co., 56 N.M. 672, 248 P.2d 668. When the manager of the store was in town, as he was at the time of the accident in question, Mr. Richardson was 'just a stocker'.
Nor could testimony as to the statement come in as an exception to the hearsay rule as part of the res gestae. The assistant manager was not even present in the store at the time of the accident.
Since testimony as to the statement could not come in as an admission, upon proper objection the testimony would not have been received as substantive evidence. It would have been received only for the limited purpose of impeaching the credibility of the assistant manager, and, upon request the defendant would have been entitled to an instruction to that effect. Since no objection was made to plaintiff's testimony as to the statement, this hearsay evidence did come in as substantive evidence even though it could not be treated as an admission of the defendant-principal. The statement, as testified to by the plaintiff, was entitled to the same treatment as would be testimony by the plaintiff, received without objection, that a third party had stated the floor was slick as ice. In this jurisdiction hearsay evidence received without objection is to be considered in the same manner as other relevant evidence and has sufficient probative worth to support a finding or verdict. State v. Trujillo, 60 N.M. 277, 291 P.2d 315; Ferret v. Ferret, 55 N.M. 565, 237 P.2d 594; Chiordi v. Jernigan, 46 N.M. 396, 129 P.2d 640.
Considering the evidence in the light most favorable to the plaintiff, as we must do in determining the propriety of the directed verdict, it must be taken as proved that the floor at the place where plaintiff fell was very slippery. The sole question to be answered then is whether plaintiff, by proving only that the floor was very slippery at the place where she fell, made out a prima facie case which should have been submitted to the jury. We think not.
We are not prepared to say that proof of a slippery spot on a floor, standing alone, will support an inference that it resulted from the proprietor's negligence. De Baca v. Kahn, 49 N.M. 225, 161...
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...Inc. (1963) 71 N.M. 377, 378 P.2d 613, 617; Mahoney v. J.C. Penney Co. (1962) 71 N.M. 244, 377 P.2d 663, 669; Kitts v. Shop Rite Foods, Inc. (1958) 64 N.M. 24, 323 P.2d 282, 284; Haynes v. Horton (1964) 261 N.C. 615, 135 S.E.2d 582, 583; Prame v. Ames Department Stores, Inc. (1991) 176 A.D.......
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