May-Bilt, Inc. v. Deese
| Decision Date | 21 December 1967 |
| Docket Number | INC,MAY-BIL,6 Div. 283 |
| Citation | 206 So.2d 590,281 Ala. 579 |
| Parties | v. Mrs. Harry O. DEESE et al. , 283--A. |
| Court | Alabama Supreme Court |
Davies, Williams & Wallace, Birmingham, for appellant.
Higgins, Windham, Perdue & Johnson, Birmingham, for appellees.
Mrs. Harry O. Deese, appellee in 6 Div. 283, brought suit against May-Bilt, Inc., to recover damages for personal injuries suffered when she slipped and fell in May-Bilt's self-service grocery store while there as a customer. Mrs. Deese's husband, Harry O. Deese, appellee in 6 Div. 283--A, brought a derivative suit against the same defendant in the same court to recover damages for loss of 'the society, consortium and services of his wife' and for expenses incurred by him, and which he will incur in the future, 'for hospitalization, medical attention and services in and about the treatment' of his wife's injuries.
Mrs. Deese's complaint alleges that while she was in May-Bilt's store at its invitation, 'and while walking along one of the aisles, passageways or floors of said store,' she 'slipped and fell to the floor and as a proximate consequence thereof she was injured and damaged * * * as a proximate consequence of the negligence of the defendant in this: Defendant negligently maintained said aisle, passageway or floor at the place where' she 'fell in an unsafe condition for the use of customers in said store'. Mr. Deese's complaint contains substantially the same allegations.
Both cases were tried together before a jury. There was a separate verdict, and judgment thereon, in favor of each plaintiff. Defendant's motion for a new trial in each case was overruled. Defendant brings these appeals from the judgments rendered on the jury verdicts. By agreement, both cases were submitted here on one record.
The accident occurred on Saturday, about 2:30 P.M., in defendant's grocery store in Birmingham. Mrs. Deese was in the store as a customer, shopping for groceries. While walking down the aisle in the produce section, she slipped and fell to the floor. Before falling, she 'had been all through the store shopping' and 'was going to the produce counter, to the lettuce,' when she fell, where lettuce and other items of produce were stored in open counters. To a question as to how far she 'slid or slipped,' she answered, 'it felt like it was about four or five feet.' She ended up under the cart being used by O. C. Powers, another customer. After falling, she saw pieces of a bean on the sole and heel of her shoe and a piece of a bean on the floor. She did not see 'any foreign object or item on the floor' before she slipped. While still on the floor, she heard defendant's stockroom boy say: 'Oh my Gosh, she has slipped and fell on a bean.' The stockroom boy, Wayne McCary, was approximately five feet from Mrs. Deese when she fell, but did not see her fall.
Witness O. C. Powers was standing near Mrs. Deese but did not see her fall. He saw the part of the bean, described by him as a 'string bean', on the floor and the part on the bottom of Mrs. Deese's shoe and described it as being 'a green hard, hard bean, green,' appearing 'to have a fresh green color about it' and to have 'the same appearance as those beans that were in the display bin.' After the accident, he saw 'a few more pieces of beans and vegetables up against the wall * * * on the floor.' He further testified that there was nothing to obstruct the view of the scene by defendant's stockroom boy, who was standing 'four feet' from Mrs. Deese, and that the weighing-station was 'five or six feet from where I was stopped' but didn't know if the weighing-station girl 'was there at that particular time the lady fell.'
The manager of the store testified that the store had been swept thoroughly after its closing the previous Friday evening, that the entire floor is swept three or four times a day, and in between these sweepings, the produce department is swept every 15 to 30 minutes by produce department personnel. The manager stated that he had inspected the produce section approximately 30 minutes prior to the accident and that he saw nothing on the floor at that time.
The beans were displayed loosely in an open, refrigerated bin. In purchasing beans, customers make selections, then place them in paper bags and carry the bags several feet to a weighing station for weighing and pricing by one of defendant's employees.
The stockroom boy, Wayne McCary, was a high school student working part-time in the store. He testified that he recalled the accident but was unable to make a positive identification of Mrs. Deese at the trial when asked to do so by plaintiffs' attorney. He stated that he did not see the accident, that he was approximately five feet away and had his back to the scene when he heard a noise, turned around and saw the lady on the floor. After the accident, he saw the bean on the floor and described it as being fresh, green, and of the same color and freshness as the beans in the display bin. He picked up the bean and threw it away. He further testified that he did not see any other beans on the floor at that time, and that the floor in the produce section was swept many times during the day. The weighing-station girl did not testify.
There is no dispute that Mrs. Deese was in May-Bilt's store as its invitee. As invitor, May-Bilt owed to her, as invitee, the duty of exercising ordinary or reasonable care to keep its premises, at the place where Mrs. Deese was injured, in a reasonably safe condition. See: Southern Minerals Co. v. Barrett, 281 Ala. 76, 199 So.2d 87, 90--91; Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177; S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171; Great Atlantic & Pacific Tea Co. v. Weems, 266 Ala. 415, 96 So.2d 741; Great Atlantic & Pacific Company v. Popkins, 260 Ala. 97, 99, 69 So.2d 274; Kittrell v. Alabama Power Co., 258 Ala 381, 63 So.2d 363; Ten Ball Novelty & Mfg. Co. v. Allen, 255 Ala. 418, 51 So.2d 690; Britling Cafeteria Co. v. Naylor, 254 Ala. 84, 47 So.2d 187; F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667.
It has been held also that, in cases of this type, the invitor is not an...
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Foodtown Stores, Inc. v. Patterson
...of res ipsa loquitur apply. No presumption of negligence arises from the mere fact of injury to an invitee. See: Maybilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590; Southern Minerals Co. v. Barrett, 281 Ala. 76, 199 So.2d 87, 90--91; Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 53......
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...substance was on the floor at the time of the inspection." Thompson, at 570, 103 So.2d 177. The evidence in May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590 (1968), was that the green bean on which the plaintiff slipped was green, hard, and fresh--evidence of a "nature and condition" wh......
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...care to keep the premises in a reasonably safe condition. Winn-Dixie v. Godwin, 349 So.2d 37 (Ala.1977); May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590 (1967). The owner of a premises in such cases is not an insurer of the safety of his invitees, and the principle of res ipsa loquitur......
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Foster v. Kwik Chek Super Markets, Inc., 3 Div. 390
...ordinary or reasonable care to keep its premises, where likely to be used by invitees, in a reasonably safe condition. May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590, and cases there We have held, in slip and fall cases, that the invitor is not an insurer of the safety of his invitees......