Langford v. Mercurio

Decision Date14 February 1966
Docket NumberNo. 43766,43766
PartiesJack LANGFORD v. Mrs. Grace Duncan MERCURIO.
CourtMississippi Supreme Court

Burgin & Gholson, Columbus, for appellant.

Ben Owen, Threadgill & Hicks, Columbus, for appellee.

BRADY, Justice:

Suit was instituted in the Circuit Court of Lowndes County by Mrs. Grace Mercurio, the appellee, against Jack Langford and Nelson Myers, d/b/a Fluff-Dry Laundercenter, and also d/b/a the Myers Furniture and Appliance Company. A peremptory instruction was granted to Nelson Myers, individually, and to Jack Langford and Nelson Myers, d/b/a Myers Furniture and Appliance Company. The cause was submitted to the jury as to Jack Langford, the operator of Fluff-Dry Laundercenter, and a verdict was returned in the sum of $10,000 for alleged personal injuries received by the appellee. From this judgment the appellant, Jack Langford, appeals and the appellee, Mrs. Mercurio, cross-appeals from the granting of the peremptory instruction for Nelson Myers and the Myers Furniture and Appliance Company, a copartnership.

The essential facts are these: On Sunday afternoon, August 6, 1961, between six and six-thirty, Mrs. Grace Mercurio, who owned and operated a beauty parlor, entered the Fluff-Dry Laundercenter for the purpose of inspecting the washers, contemplating the washing of a quilt which appellee claims her mother had given her. The building which houses the Fluff-Dry Laundercenter was owned by Mr. William Sanders and had been leased by the appellant from him. One-third of this building, at the back, was a storeroom, separated from the laundry by a concrete block wall. There was a weighted, heavy door in the wall which could be raised vertically at the back of the laundercenter. This storeroom was subleased by the appellant to the partnership of Myers Furniture and Appliance Company for storage space. Nelson Myers in turn had leased to Myers Furniture and Appliance Company some storage space located at his lumber company. There was no consideration other than this mutual exchange.

At the time, appellant and Nelson Myers were engaged in a partnership retail furniture and appliance sales business operated under the trade name of Myers Furniture and Appliance Company. This business was located in a building several blocks distant from appellant's laundry. The storeroom was used by Myers Furniture and Appliance Company to store old, and also uncrated, furniture, and used appliances. The record discloses that this storage area was never open to the public by the furniture partnership and was used solely for storage purposes. The laundercenter had no interest in, or control over, this storage space.

Mrs. Luth Langford, wife of appellant, was employed by Myers Furniture and Appliance Company in the capacity of a bookkeeper and secretary. Her duties were those generally performed by such an employee. The record fails to establish any employment of Mrs. Ruth Langford as a general agent of the copartnership, her duties being largely clerical. The record fails to disclose that she had anything whatsoever to do with the advertising, sale, or the storage of the furniture or appliances owned by the Myers Furniture and Appliance Company.

Wearing dark glasses, on the afternoon of August 6, the appellee entered the laundercenter of appellant, and approximately thirty minutes later she fell and was injured. She entered the laundry through the only public door, which was well lighted and designated in large block letters as the customers' entrance. The record discloses that the appellee testified she had lived across the street from the back of this building for about ten years prior to the time that she first entered it. She stated that she entered the building to look at the machines and check the prices, but that she had never used and did not use the machines or do any laundry work on that occasion. She testified that she had a conversation with another customer who was in the building, and that after she had been in the laundry about fifteen or twenty minutes Mrs. Ruth Langford the wife of the appellant, came into the laundry for the purpose of laundering some of her own clothes. Mrs. Langford did so by depositing coins in the machines just as any other customer would do. Mrs. Langford was subsequently followed into the laundercenter by her husband.

While Mrs. Ruth Langford was folding her clothes which she had dried, appellee's husband suddenly appeared outside the window of the laundry and peered in. The appellee saw her husband and made some statements to Mrs. Langford about running Langford if there was a rear exit from Langford if there was a rear exist from the laundry. What transpired immediately thereafter is in dispute. Mrs. Langford testified she replied that there was no such exist and that she turned around in time and saw the appellee in the act of lifting the heavy, weighted door sufficiently, so that she could leave by 'ducking' under it. She further testified that she called out to the appellee to be careful and that the appellee peplied that she knew all about the place; that she had lived across from it for about ten years.

On the other hand, the appellee testified that Mrs. Langford, in response to her request, opened this door for her, but admits that Mrs. Langford in substance told her to be careful, and asked her if she knew her way and she stated that she did. On direct testimony, the appellee testified as follows:

A. Well, I said to her, I said, 'Can I go out the back?'

THE COURT: All right, go ahead now.

A. All right, thank you. And so she says, 'Do you know the way back there?' I said, 'I should, I live in the house across the street,' so she goes on to the raft and I go on up with her and she opens up this door and lets me out of this light room into this dark out on this concrete walkway out there and I went over and I thought I was going to hit the ground so I went on over, you know, out in this dark.

According to appellee's own testimony, she ran 'lickety-split' through the storeroom and ran off a truck loading ramp, falling about thirty inches or three feet to the ground.

Subsequently, on cross-examination, the appellee testified that she just nonchalantly walked through the door and onto the concrete walk where she fell to the ground. Appellee admitted that she knew the ramp was there. She recalled that during the time she lived there she had seen soft drink trucks pull into the back where the ramp was and unload the trucks.

Although the reasons are vague as to why Mrs. Mercurio desired to hide from her husband when she saw him peering in the window, she contends that the reason she said to Mrs. Langford, 'There is my husband, I ought to hide from him,' is that she was saying it playfully; that she loved her husband dearly and there was no real reason why she should hide from him.

The record further discloses that when the appellee went into the laundercenter she had never been Mr. or Mrs. Langford before and as far as she could tell Mrs. Langford was just like any other customer in the laundercenter.

There are numerous errors assigned, which relate to the trial of the case, including the granting of an erroneous instruction, the making of inflammatory arguments by appellee's counsel, and the failure of the court to admonish the jury with reference thereto. The disposition of this case does not require our attention to these additional errors.

The basic error urged is that the lower court erred in failing to grant appellant's requested peremptory instruction or to direct a verdict for the appellant. Whether this assignment of error is well taken depends upon whether there was any evidence from which the jury could make a factual determination, giving rise to legal liability on the part of the appellant, Jack Langford, d/b/a Fluff-Dry Laundercenter.

The second question for consideration is that raised by the appellee and cross appellant, namely: Was the copartnership of Nelson Myers and Jack Langford in the operation of Myers Furniture and Appliance Company, and Nelson Myers, individually, liable for the plaintiff's injuries on the partnership property? Stating the second matter for consideration more explicitly: Did Myers or Myers Furniture and Appliance Company breach any duty which it owed the appellee on account of which she sustained the injuries complained of?

Initially we will consider the second proposition. The record discloses that the appellee testified that she knew the way; that she was familiar with the area; that she had lived across from this laundercenter and behind it for approximately ten years. The record reveals that the exit which she took was not for use by the public. In fact, the record fails to disclose that anyone had ever used this exit prior to the time she voluntarily chose to use it. She knew the condition of the ramp and she knew that the ramp had been used by trucks to unload soft drinks. The record fails to disclose that there was any defect in the premises. It follows, therefore, that when she took the route which she took in leaving the building, she assumed all risks of injury by so doing.

The record further discloses she testified that she either nonchalantly walked out upon the ramp and fell therefrom or she ran 'lickety-split' on the ramp and fell therefrom. The proof is conclusive that it was her negligence, and her negligence alone, which caused her to fall and incur the resultant injuries. Selby v. McWilliams Realty Corp., 246 Miss. 568, 151 So.2d 596 (1963).

Since there was no inherent latent defect in the premises, it follows that neither the appellant, Myers Furniture and Appliance Company, a copartnership, nor Nelson Myers, individually, was required to anticipate the unusual and improbable results of the appellee's acts. It would be imposing an unreasonable burden on a defendant to expect him to anticipate that a woman, in dark glasses, on Sunday afternoon would engage in...

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