Moore v. Great A. & P. Tea Co.

• Decision Date: 06 April 1936
• Docket Number: No. 18596.,18596.
• Citation: 92 S.W.2d 912
• Parties: LOUISE MOORE, RESPONDENT, v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

92 S.W.2d 912

LOUISE MOORE, RESPONDENT, v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, APPELLANT.

No. 18596.

Kansas City Court of Appeals. Missouri.

April 6, 1936.

Appeal from Circuit Court of Saline County. — Hon. Charles Lyons, Judge.

AFFIRMED.

C.R. Leslie, R.D. Johnson and Hume & Raymond for respondent.

Henry S. Conrad, L.E. Durham, Hale Houts and Wright Conrad for appellant.

SHAIN, P.J.

This is an action for personal injuries alleged to have been caused by the plaintiff falling upon the floor of defendant's store, while in said store shopping.

Plaintiff's allegations of negligence are based upon the statement that shortly before she fell upon the floor the agents and servants had mopped said floor so "that the floor of said store, at said time, upon which plaintiff was walking and moving about, was dangerously smooth, slick, slippery and wet, thereby being dangerous to customers, including the plaintiff moving about and over the same." The usual allegations of knowledge or opportunity for knowledge are plead and negligence is duly plead as to the permitting the floor to be in aforesaid alleged dangerous condition.

It is duly alleged that the negligence plead caused the fall and the injury. The injury to plaintiff is alleged as follows:

"Plaintiff's back was bruised, wrenched, twisted, and made lame and sore, and she sustained a severe shock to her nerves and whole central nervous system; her arms were made lame and sore and were severely bruised; she sustained a concussion of the spinal cord and a permanent injury to all her nerves because thereof. She sustained severe bruises to the muscles, ligaments, and attachments to her spine and her hips, her sacrum, and the lower extremity of her spine and all of her vertebrae were severally wrenched and bruised, and made lame so that she is scarcely able to stand alone and is compelled to resort to medical and surgical treatment and is compelled to wear a surgical apparatus because of her said injuries, which is a great annoyance and inconvenience to which she is compelled to submit because of said injuries and will be so confined for a long time; that she has lost her natural rest and sleep because of said injuries and has suffered intense bodily pain and mental anguish and will so suffer for a long time to come. She has lost much of her vitality and is made extremely nervous. Plaintiff says that all of said injuries are lasting and permanent and have disabled her so that she is unable to work and labor and do ordinary household duties and such injuries will continue indefinitely and the same are permanent."

The defendant makes answer by general denial.

There was a trial by jury resulting in a verdict for the plaintiff in the sum of $2500. Judgment was duly entered for said amount and the defendant has appealed.

OPINION.

To conform to the situation in the trial court, we will continue to refer to the respondent as plaintiff and the appellant as defendant.

At the close of all of the evidence, the defendant asked a peremptory instruction directing a verdict for defendant. This was refused by the trial court and the defendant urges as its first assignment of error the refusal of the court to give this instruction.

In the consideration of the above claim of error, it becomes our duty to give consideration of all of the testimony in its most favorable light to plaintiff's stated cause of action.

It stands undisputed that the defendant's floor was covered with linoleum and that, from fifteen to twenty minutes before the plaintiff came into the store, the floor had been mopped and cleaned. It is admitted that the plaintiff was in defendant's store as a customer and that she fell on the floor. According to plaintiff's testimony, she received the injuries of which she complains as a result of this fall.

The plaintiff called as witnesses the clerks, who were in the store when she fell, and the manager who came into the store directly after she fell. The plaintiff was allowed by the court the liberty to cross examine these witnesses. The testimony of the foregoing witnesses was not so favorable to the plaintiff as is her own testimony and, if the case rested upon the testimony of these witnesses, the law as declared in Cluett v. Union Electric Light & Power Co., 220 S.W. 865, would be very direct in its application to the case as made by the evidence of the employees of defendant that were called and testified on behalf of plaintiff. The Cluett case, supra, will be considered by us later in the opinion. However, as the plaintiff's own testimony is much more favorable to her than is the testimony of the employees of the defendant, we deem it unnecessary to set out said testimony in our opinion further than to say that these witnesses testified that some fifteen or twenty minutes before plaintiff fell the floor had been mopped with a solution of lye and climaline in water and that the floor had been wiped thereafter with a dry mop.

The testimony of the plaintiff, touching her fall, will be best understood by presenting here questions and answers as appearing in the record, to-wit:

"Q. Now tell what occurred on the 9th day of April as to your trip over there, what you went for and what occurred? A. Well, I went over there to get a loaf of bread and some washing powder.

"Q. When you got over there it was about what time of day? A. It was about 11:30 when I left my home.

"Q. About 11:30? A. Yes, sir."

Further on in the record her testimony was as follows:

"A. Well, my feet slipped out from under me and I sat down violently.

"Q. On the floor? A. On the floor.

"Q. What was the floor covered with as to — I mean the structure of it? A. Linoleum.

"Q. Now, do you know why you fell, what made you fall, how it occurred? A. Why, the floor was very slippery and wet.

"Q. At the other places where you had been in the store, over where you got the bread and the other places other than where you fell, did you notice whether it was wet or not? A. No, sir, I didn't look to see.

"Q. Well, did you notice whether it was slippery, or did you slip? A. No, it wasn't slippery.

"Q. Now you say it was slippery and wet? A. Yes, sir.

"Q. How do you know that? Why do you say that? A. I could see it, and I told the boys that come to help me up that it was wet.

"Q. Was there any other way of knowing it being slippery besides?

A. Why, yes; when I tried to get up my feet would slip and I had to put my hands down and I could feel the moisture on my hands.

"Q. Did it appear to be clear water on the linoleum, or was it otherwise? A. No, it was something that made it slick and slippery."

Further on in plaintiff's testimony, the following questions and answers appear.

"Q. In your time have you used lye and such stuff as climaline? A. I have used climaline, but not the lye; I have used other washing powders, too.

"Q. I will ask you what the general effect that has in water when you use it on such a surface as linoleum? A. It has a tendency to make it slippery.

"Q. More so than plain water? A. Yes, sir."

On cross-examination, plaintiff was confronted with a deposition she had given and some discrepencies are shown. However, from an examination of the record we conclude that, with due regard for all conflict between testimony at the trial and in the deposition, the plaintiff is entitled to every inference that can be drawn from the testimony set out above.

As supporting its contention that this cause should not have gone to the jury, the defendant has cited Cluett v. Union Electric Light & Power Company, supra.

The opinion in the above case was written by RAILEY, C., of the Supreme Court. WHITE, C., concurs except as to paragraph three. The opinion was adopted by the Supreme Court with the notation that, "all concur in the result." With such notation, the language used in paragraph three of the opinion cannot be given such unqualified adherence as would otherwise be given.

The facts in the Cluett case, while bearing analogy to the situation in the case at bar, we conclude have distinguishing features. In the Cluett case the plaintiff fell on a linoleum covered floor.

In the Cluett case the following questions and answers appear:

"Q. But you didn't notice anything wrong there; you didn't notice anything on the floor to make it slippery, did you? A. No, sir.

"Q. You say it was slippery because you fell? A. I supposed it was washed, you know, and avoided his pail.

"Q. I am not asking what you supposed, but in regard to the facts. A. Well.

"Q. Was there anything you saw there at all — A. Nothing at all.

"Q. — that would make it slippery? A. No."

Further on in the testimony, the following:

"This was a dry place I walked over; I walked over the dry place that I supposed had been left for that purpose and that is where I slipped."

In the opinion in the Cluett case there appears a quotation from an opinion by Judge PHILIPS, in Peck v. Railway Co., 31 Mo. App. 126, as follows:

"Whenever, from all the facts and circumstances in evidence, a jury may, without doing violence to the dictates of reason and common sense, infer a given fact on account of its known relation to the fact proved, the court should not interpose its own different conclusion. But while this is correct, the due protection of property rights demands that the court should draw the line with a firm hand between tangible evidence and reasonable, legitimate deductions, and mere conjecture or speculation."

In the Cluett case it was decided that there was no issue of fact for the jury. We conclude that the testimony of the plaintiff in the above case, as to wetness of the floor, was but an opinion that constituted a conclusion drawn from the mere happening of an event and not based upon any evidence.

The opinion of the witness is in fact not in harmony with the facts as testified to by the witness herself. It is evident, we conclude, that the result in the Cluett case is based upon...