M & P Stores, Inc. v. Taylor, No. 37651
| Court | Supreme Court of Oklahoma |
| Writing for the Court | CORN |
| Citation | 326 P.2d 804,1958 OK 123 |
| Decision Date | 13 May 1958 |
| Docket Number | No. 37651 |
| Parties | M & P STORES, Inc., a Corporation, Plaintiff in Error, v. Hazel TAYLOR, Defendant in Error. |
Page 804
v.
Hazel TAYLOR, Defendant in Error.
Page 805
1. Although the storekeeper is not an insurer of the safety of his customer while in the store, he does owe the customer the duty of maintaining the premises, such as
Page 806
the aisles and other portions thereof usually used by the customer, in a reasonably safe condition for such use, and to warn such customer of the dangerous conditions existing in such areas so used, said invitee having the right to assume that it is safe to walk in the aisles near the counters for the purpose of making a selection of that which he or she intends to buy.2. It is proper to permit a witness to testify and/or pictures to be introduced as to the place of the accident where the evidence indicates that the floor and surroundings were in substantially the same condition both before and after the accident.
3. Whether testimony is prejudicial and effectually informs the jury that this defendant is protected against a judgment by insurance depends essentially upon the facts and circumstances of each case, and where the statement was voluntarily made by defendant's witness in answer to a proper question on cross-examination, with no further allusion thereto, such reference is not prejudicial.
4. After the acceptance of the verdict and discharge of the jury, the court is without authority to change the verdict.
Appeal from Superior Court of Seminole County; Bob Aubrey, Judge.
Action for damages resulting from personal injuries. From a judgment for plaintiff, defendant appeals. Reversed and remanded with directions to enter judgment in conformity with this opinion.
Abernathy & Abernathy, Kenneth Abernathy, Charles C. Baker, Shawnee, for plaintiff in error.
Buck Cartwright, Wewoka, Bishops & Samples, Seminole, for defendant in error.
CORN, Vice Chief Justice.
On February 25, 1954, while a customer in the store of M & P Stores, Inc., a Corporation at Wewoka, Oklahoma, Hazel Taylor stepped in a hole in the floor, which extended several inches out from a counter and into the aisle of said store, causing her to turn her body sharply sideways, resulting in permanent injury to her back.
Thereafter Hazel Taylor brought this action for damages resulting from such injuries against the M & P Stores, Inc., alleging that the proximate cause thereof was its negligence in failing to keep floors therein in a safe condition, and in not warning her of the unsafe condition.
The trial resulted in a jury verdict in favor of the plaintiff. From the judgment rendered thereon defendant appeals. The parties will be referred to herein by their trial court designation.
At the outset it should be noted that no question is here presented as to the nature and extent of plaintiff's injuries. Nor is there any contention made that the verdict of the jury is excessive.
It is first contended that the record is devoid of any evidence of negligence on the part of the defendant or that it violated any duty toward the plaintiff, and that by reason thereof the failure to sustain the demurrer to the evidence or motion for directed verdict constituted reversible error.
The evidence on behalf of the plaintiff is directed to the condition of the floor as particularly related to the hole therein extending out from the counter and into the aisle, its existence long prior to, at the time of, and subsequent to plaintiff's injury. In this connection it discloses that wood flooring had deteriorated away from the concrete slab, which together constituted the floor, that the concrete adjacent to such wood floor had crumbled away, leaving a hole several inches long and approximately four inches wide, extending approximately four or five inches out from the counter and into the aisle. The evidence adduced indicates the existence of this condition several months prior to, at the time of, and subsequent to the time plaintiff stepped therein, and that the defendant, through its employees, had knowledge thereof. It further discloses that while making a selection at the counter, plaintiff stepped into such hole, which she had not theretofore seen, even though the store was well
Page 807
lighted and the hole could have been seen had one looked directly at it.Although the storekeeper is not an insurer of his customer's safety while in the store, he does owe the customer the duty of maintaining the premises, such as the aisle and other portions thereof usually used by the customer, in a reasonably safe condition for such use, and to warn such customer of the dangerous conditions existing in those areas so used, such invitee having the right to assume that it is safe to walk in the aisle near the counter for the purpose of making a selection of that which he or she intends to buy. S. H. Kress & Co. v. Maddox, 201 Okl. 190, 203 P.2d 706; Safeway Stores, Inc., v. Whitehead, 190 Okl. 464, 465, 125 P.2d 194; Romney v....
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Barry v. Arrow Transp. Co., 8852
...merely re-emphasizes the damage already done, citing: Bratten v. White, 181 Okl. 543, 75 P.2d 474; M. & P. Stores v. Taylor, Okl., 326 P.2d 804; Dolliver v. Lathion, 183 Okl. 329, 82 P.2d 675; Hankins v. Hall, 176 Okl. 79, 54 P.2d 609; Beatrice Creamery Co. v. Goldman, 175 Okl. 300, 52 P.2d......
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Million v. Rahhal, 41147
...New Cordell v. Lowe, supra; Pratt v. Womack, Okl., 359 P.2d 223; Redman v. McDaniel, Okl., 333 P.2d 500; M. & P. Stores v. Taylor, Okl., 326 P.2d 804. In J. C. Penney v. Barrientez, supra, our most recent case involving the mentioning of insurance, the plaintiff, during her cross-examinatio......
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Matchen v. McGahey, 41755
...Under the circumstances of this case, the rule announced in Penney, supra, is applicable here. See also M & P Stores v. Taylor, Okl., 326 P.2d 804; Redman v. McDaniel, Okl., 333 P.2d 500; Pratt v. Womack, Okl., 359 P.2d 223; and Smith v. Hanewinckel, Okl., 405 P.2d 99. The overruling of the......
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Cooper v. Woodruff, 38644
...must be timely interposed before the jury is discharged, and unless so made, it is deemed waived. M. & P. Stores, Inc. v. Taylor, Okl., 326 P.2d 804; Lyons v. McKay, Okl., 313 P.2d 527; Shamblin v. Shamblin, 206 Okl. 133, 241 P.2d 941; Bunch v. Perkins, 198 Okl. 517, 180 P.2d 664. J. S. Hof......
-
Barry v. Arrow Transp. Co., 8852
...merely re-emphasizes the damage already done, citing: Bratten v. White, 181 Okl. 543, 75 P.2d 474; M. & P. Stores v. Taylor, Okl., 326 P.2d 804; Dolliver v. Lathion, 183 Okl. 329, 82 P.2d 675; Hankins v. Hall, 176 Okl. 79, 54 P.2d 609; Beatrice Creamery Co. v. Goldman, 175 Okl. 300, 52 P.2d......
-
Million v. Rahhal, 41147
...New Cordell v. Lowe, supra; Pratt v. Womack, Okl., 359 P.2d 223; Redman v. McDaniel, Okl., 333 P.2d 500; M. & P. Stores v. Taylor, Okl., 326 P.2d 804. In J. C. Penney v. Barrientez, supra, our most recent case involving the mentioning of insurance, the plaintiff, during her cross-examinatio......
-
Matchen v. McGahey, 41755
...Under the circumstances of this case, the rule announced in Penney, supra, is applicable here. See also M & P Stores v. Taylor, Okl., 326 P.2d 804; Redman v. McDaniel, Okl., 333 P.2d 500; Pratt v. Womack, Okl., 359 P.2d 223; and Smith v. Hanewinckel, Okl., 405 P.2d 99. The overruling of the......
-
Cooper v. Woodruff, 38644
...must be timely interposed before the jury is discharged, and unless so made, it is deemed waived. M. & P. Stores, Inc. v. Taylor, Okl., 326 P.2d 804; Lyons v. McKay, Okl., 313 P.2d 527; Shamblin v. Shamblin, 206 Okl. 133, 241 P.2d 941; Bunch v. Perkins, 198 Okl. 517, 180 P.2d 664. J. S. Hof......