Mississippi Winn-Dixie Supermarkets v. Hughes

• Decision Date: 14 October 1963
• Docket Number: No. 42752,WINN-DIXIE,42752
• Parties: MISSISSIPPISUPERMARKETS et al. v. Mrs. Fred J. HUGHES.
• Court: Mississippi Supreme Court

Page 734

156 So.2d 734

247 Miss. 575

MISSISSIPPI WINN-DIXIE SUPERMARKETS et al. v. Mrs. Fred J. HUGHES.

No. 42752.

Supreme Court of Mississippi.

Oct. 14, 1963.

Snow, Covington, Shows & Watts, Meridian, for appellants.

Ethridge, Minniece & Bourdeaux, Thomas R. Jones, Meridian, for appellee.

ETHRIDGE, Justice.

Mrs. Fred J. Hughes, appellee, was injured on June 7, 1961, in a fall when she slipped on some dry vermicelli (edible paste smaller than spaghetti) in a self-service grocery store owned by appellant, Mississippi Winn-Dixie Supermarkets, Inc. She sued Winn-Dixie and its store manager, J. R. Glass, in a tort action, and received a jury verdict and judgment in the Circuit Court of Lauderdale County, awarding $40,000 damages. This appeal involves particularly the sufficiency of the evidence to support the verdict and the amount of damages. We affirm the judgment.

Mrs. Hughes was an invitee. The proprietor of a store, office, or similar place of business owes to persons present on the premises as invitees the duty of exercising ordinary, reasonable care to see that the portions of the premises which may be expected to be used by invitees are reasonably safe. Hence the proprietor is under the duty to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purposes of the invitation. Gulfport Winn-Dixie, Inc. v. Taylor, 149 So.2d 485 (Miss.1963); Elias v. New Laurel Radio Station, Inc., 146 So.2d 558 (Miss.1962); Seymour v. Gulf Coast Buick, Inc., 152 So.2d 706 (Miss.1963); Prosser, The Law of Torts (2d ed. 1955), p. 459; 2 Harper & James, The Law of Torts (1956), Sec. 27.12, p. 1487; Anno., Liability of Proprietor of Store, Office, or Similar Business Premises for Injury from Fall Due to Presence of Litter or Debris on Floor, 61 A.L.R.2d 6, 13 (1958); Anno., 62 A.L.R.2d 6 (1958).

Generally the liability of a proprietor in failing to render the premises reasonably safe, or failing to warn invitees of existing dangers, must be predicated upon the proprietor's superior knowledge concerning the danger. With respect to the necessity of evidence concerning notice of the dangerous floor condition, 'there are two rules of fundamental significance. The first of these is that where the floor condition is one which is traceable to the proprietor's own act--that is, a condition created by him or under his authority--or is a condition in connection with which the proprietor is shown to have taken action, no proof of notice is necessary.

'Thus, it has been said that matters as to notice, including questions as to the length of time the dangerous condition existed are eliminated where it appears that the condition was created by defendant or persons for whose conduct he is responsible.' Anno., 61 A.L.R.2d at 24.

The second rule, in contrast with that applicable to a floor condition resulting from the act of the proprietor, is this: '* * * where it appears that a floor in a store or similar place of business has been made dangerous by litter or debris present thereon, and that the presence of the litter or debris is traceable to persons for whom the proprietor is not responsible, proof that the proprietor was negligent in relation to the floor condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that, in the exercise of reasonable care, he should have known of it.' Anno., 61 A.L.R.2d at 26; 2 A.L.I., Rest. of Torts, Sec. 343; 38 Am.Jur., Negligence, Sec. 136; 65 C.J.S. Negligence Secs. 45, 51.

In both types of cases, negligence of the defendant and notice to him may be found from circumstantial evidence of adequate probative value. In short, the plaintiff may prove circumstances from which the jury might conclude reasonably that the condition of the floor was one which was traceable to the proprietor's own act or omission, in which no proof of notice is necessary; and also, circumstantial evidence of adequate probative value may establish that the floor condition, traceable to third parties, was one of which the proprietor either had actual notice or the condition existed for such a length of time that, in the exercise of reasonable care, he should have known of it. Williamson v. F. W. Woolworth Co., 237 Miss. 141, 112 So.2d 529 (1959); Patterson v. Sayers, 223 Miss. 444, 78 So.2d 467 (1955); Palmer v. Clarksdale Hospital, 206 Miss. 680, 40 So.2d 582 (1949); Maxie v. Laurel General Hospital, 130 Miss. 246, 93 So. 817 (1922); Seymour v. Gulf Coast Buick, Inc., 152 So.2d 706 (Miss.1963). Prosser states it in this way: 'Negligence, like any other fact, may be proved by circumstantial evidence. This is evidence of a fact, or a set of facts, from which the existence of another fact may reasonably be inferred. It involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference, by which a conclusion is drawn.' Prosser, at p. 200. Verdicts may rest upon reasonable probabilities. Tombigbee Elec. Power Ass'n v. Gandy, 216 Miss. 444, 62 So.2d 567 (1953); Grizboski v. Bernheimer Leader Stores, 156 Md. 146, 143 A. 706 (1928).

Since the jury found for plaintiff, we must consider the evidence and reasonable inferences from it in the light most favorable to plaintiff. The accident happened around nine o'clock in the morning. There are six cashier or check-out stands immediately inside the front door. Five rows of sheleves, called gondolas, were lined up in an east-west direction at right angles from the front door toward the back of the store, with aisles between them seven or more feet in width. At the rear of the store there was a wide aisle and a meat counter. The vermicelli, which caused the fall, was kept in cellophane-wrapped packages on the second shelf from the top in one section of the second aisle from the north side of the store.

Mrs. Hughes was 84 years of age, but in excellent health for a person of her age. She walked several blocks to the store from her apartment, went in the front door, and made selections at the vegetable and other counters. She then went to look for rice, which was kept in the same gondola as the vermicelli. While she was looking for the rice, her foot slipped on some vermicelli dropped on the floor from a damaged package still situated on the shelf. She fell and broke her right leg near the hip joint. Glass testified that the package from which the vermicelli escaped was on the floor by Mrs. Hughes when she fell, but plaintiff's evidence, apparently accepted by the jury, contradicted his statement. Mrs. Hughes and Claude Lee, an employee of Winn-Dixie at the time, both testified that the damaged package was still on its shelf, with about one-fourth of the vermicelli on the floor near where she fell and in the aisle toward a check-out counter.

After an ambulance removed Mrs. Hughes to the hospital, Glass, the store manager, put the damaged package in with other merchandise to be returned to the manufacturer. So it was not available for examination at the trial. Lee said that the package in which the vermicelli was packed looked as if 'it either had been cut by a case opener or gouged by a long finger nail.' His 'judgment' was 'that it was cut.' Describing the method of unpacking shipments and stacking the merchandise for display, Lee said that an employee in the back room of the store opened the boxes such as...