New St. Anthony Hotel Co. v. Pryor

• Decision Date: 02 August 1939
• Docket Number: No. 10602.,10602.
• Citation: 132 S.W.2d 620
• Parties: NEW ST. ANTHONY HOTEL CO. v. PRYOR et al.
• Court: Texas Court of Appeals

132 S.W.2d 620

NEW ST. ANTHONY HOTEL CO. v. PRYOR et al.

No. 10602.

Court of Civil Appeals of Texas. San Antonio.

August 2, 1939.

Rehearing Denied November 8, 1939.

Appeal from District Court, Seventy-Third District, Bexar County; Jno. F. Onion, Judge.

Suit by Ike T. Pryor against the New St. Anthony Hotel Company and another, to recover damages for personal injuries allegedly sustained by Mrs. Myra S. Pryor when she slipped and fell upon floor of the coffee shop maintained by the St. Anthony Hotel Company. Ike T. Pryor died before the suit came to trial, and the suit was tried upon a second amended original petition in which Mrs. Myra S. Pryor and Leroy G. Denman, as independent executor of the estate of Ike T. Pryor, deceased, were named as plaintiffs. From the judgment, the New St. Anthony Hotel Company appeals.

Reversed and remanded.

Johnson & Rogers and Arnold & Cozby, all of San Antonio, for appellant.

Carter & Lewis and Denman, Franklin & Denman, all of San Antonio, for appellees.

MURRAY, Justice.

This suit was originally instituted by Ike T. Pryor, but before it came to trial Mr. Pryor died, and the suit was tried upon a second amended original petition in which Mrs. Myra S. Pryor and Leroy G. Denman as independent executor of the estate of Ike T. Pryor, deceased, were named as plaintiffs and the New St. Anthony Hotel Company and Pan American Hotel Company, as defendants.

The suit was to recover damages for personal injuries alleged to have been sustained by Mrs. Pryor when she slipped and fell upon the floor of the Coffee Shop, maintained by the hotel, while she was being led to a seat at a table as a patron and invitee therein.

The trial was to a jury, but at the close of the testimony the Pan American Hotel Company was dismissed from the suit.

The allegations of the petition as to how the fall came about are as follows:

"Plaintiffs aver that the defendants negligently caused and permitted the floor in said Coffee Shop and at the place where plaintiff fell to be slick and slippery.

"The defendants had also negligently polished said floor and thereby caused it to be very slick and polished.

"Plaintiffs also allege that the defendants negligently applied wax upon the said floor; and negligently polished said floor with wax or slippery substance in such a way as to cause the floor to be slick and slippery; and the defendants also failed to maintain said floor in a reasonable safe condition for use by their customers; and negligently failed to remedy or correct the slippery condition thereof.

"Defendants also negligently caused and permitted water or other substance to be upon said floor at and near the place where said plaintiff fell.

"Plaintiffs also aver that the defendants negligently caused and permitted a mat or rug to be upon said polished floor at a point where customers could walk or step upon it; and the defendants negligently failed to fasten or fix said mat or rug to prevent it from slipping or moving when stepped upon. Plaintiffs aver that said mat or rug was at or near a service stand upon which the defendants kept water, ice, butter, and other things which defendants' employees used in serving the various tables; and defendants' employees had negligently dropped water, ice and butter at and near said place; and had negligently failed to remove same; and the defendants were negligent in placing and having said rug or mat upon the floor in its slick, slippery, condition, and were also negligent in placing and having said rug or mat on the floor at said place where water, ice and butter were dropped upon the floor. Because of the negligence of the defendants said mat or rug was apt to move or slip on the floor when stepped upon; and the plaintiff, Mrs. Pryor, alleges that as she was being led to a seat at a table by one of defendants' employees her foot came in contact with said rug or mat and the same moved and slipped and thereby she was caused to fall. Plaintiffs allege that they have been informed that the defendants will contend that plaintiff's fall was not caused by the slipping or moving of the said mat or rug, and if such be the case, then plaintiffs aver that she slipped on the floor and her fall was caused by the slick, slippery, polished, moist condition of the floor, and by the negligence of the defendants in regard thereto as set out in the preceding paragraphs of this petition.

"Each of said acts of negligence was a separate act of negligence on the part of the defendants, their agents and employees; and each of said acts of negligence directly and proximately caused the fall and injuries of the plaintiff, Myra S. Pryor. Plaintiffs aver that they have alleged the facts as specifically as they can, and the facts and circumstances are peculiarly within the possession of the defendants."

The cause was submitted to the jury upon seventeen special issues which were answered by the jury. The special issues, together with the answers of the jury, are as follows:

"Question No. 1: Do you find from a preponderance of the evidence that Mrs. Pryor slipped down in the coffee shop on the occasion in question? Answer yes or no.

"We; the jury, answer: Yes.

"Question No. 2: Do you find from a preponderance of the evidence that the floor in the defendant's coffee shop was slippery at the point where the plaintiff, Mrs. Pryor, slipped down, if you have found that she did slip down? Answer yes or no.

"We, the jury, answer: Yes.

"Question No. 3: Do you find from a preponderance of the evidence that the defendant New St. Anthony Hotel Company, caused said slippery condition to exist, if you have found that it did exist, at the time of the accident? Answer yes or no.

"We, the jury, answer: Yes.

"Question No. 4: Do you find from a preponderance of the evidence that the defendant was negligent in causing said slippery condition to exist, if you have found that the defendant did cause said condition to exist? Answer yes or no.

"We, the jury, answer: No.

"Question No. 5: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the plaintiff, Mrs. Pryor's, fall and any injuries alleged in her petition? Answer yes or no.

"We the jury, answer: No.

"Question No. 6: Do you find from a preponderance of the evidence that there was water at the place where the plaintiff, Mrs. Pryor, slipped in the coffee shop, if you have found that she did slip? Answer yes or no.

"We, the jury, answer: Yes.

"Question No. 7: Do you find from a preponderance of the evidence that said defendant caused said water to be at the place where the plaintiff, Mrs. Pryor, slipped in the coffee shop, if you have found that she did slip and that there was water at said place? Answer yes or no.

"We, the jury, answer: Yes.

"Question No. 8. Do you find from a preponderance of the evidence that said defendant was negligent in causing said water to be at said place and that Mrs. Pryor slipped?

"We, the jury, answer: Yes.

"Question No. 9: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the plaintiff, Mrs. Pryor's, fall and any injuries alleged in her petition? Answer yes or no.

"We, the jury, answer: Yes.

"Question No. 10: Do you find from a preponderance of the evidence that the rubber mat, or a part thereof, slipped on the floor when Mrs. Pryor stepped on the mat? Answer yes or no.

"We, the jury, answer: Yes.

"Question No. 11: Do you find from a preponderance of the evidence that said defendant was negligent in having the unfastened mat on the floor in the coffee shop in front of the service stand? Answer yes or no.

"We, the jury, answer: No.

"Question No. 12: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the plaintiff, Mrs. Pryor's, fall and any injuries alleged in her petition? Answer yes or no.

"We, the jury, answer: No.

"Question No. 13: Do you find from a preponderance of the evidence that the plaintiff's fall was not an unavoidable accident? In the event your finding is in the affirmative, then the form of your answer should be: `It was not an unavoidable accident.' Otherwise, the answer should be `no.'

"We, the jury, answer: `It was not an unavoidable accident.'

"In connection with the foregoing issue, you are instructed that an unavoidable accident is an accident not caused by the negligence of either party to the suit.

"Question No. 14: Do you find from a preponderance of the evidence that plaintiff, Mrs. Pryor, failed to keep such a lookout as a person of ordinary prudence would have kept under the same or similar circumstances? Answer yes or no.

"We, the jury, answer: No.

"Question No. 15: Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the plaintiff, Mrs. Pryor's, fall and any injuries alleged in her petition? Answer yes or no.

"We the jury, answer: No.

"Question No. 16: Do you find from a preponderance of the evidence that Mrs. Pryor's fall was solely caused by her physical condition? Answer yes or no.

"We, the jury, answer: No.

"Question No. 17: What amount of damages, if any, do you find from a preponderance of the evidence would, if paid now, reasonably compensate the plaintiff for such injuries, if any, alleged in the petition, as you may find from a preponderance of the evidence to have been sustained by her as a proximate result of her fall? Answer, stating amount.

"We, the jury, answer: Fifteen Thousand Dollars."

Two specially requested issues were submitted and answered but need not here be set forth.

Upon the verdict of the jury judgment was rendered in favor of Myra S. Pryor and Leroy G. Denman, in his representative capacity, and against the New St. Anthony Hotel Company in the sum of $15,000, together with interest and costs.

From this judgment the New St. Anthony Hotel Company has prosecuted this appeal.

Appellant's first contention is that "The...