Nuckolls v. Great Atl. & Pac. Tea Co, 14974.

• Decision Date: 05 December 1939
• Docket Number: No. 14974.,14974.
• Court: South Carolina Supreme Court
• Parties: NUCKOLLS. v. GREAT ATLANTIC & PACIFIC TEA CO.

5 S.E.2d 862

NUCKOLLS.
v.
GREAT ATLANTIC & PACIFIC TEA CO.

No. 14974.

Supreme Court of South Carolina.

Dec. 5, 1939.

[5 S.E.2d 862]

Appeal from Common Pleas Circuit Court of Charleston County; G. B. Greene, Judge.

Action by John S. Nuckolls against the Great Atlantic & Pacific Tea Company for injuries sustained by the plaintiff while he was employed by the defendant, as result of fall allegedly caused by defendant's negligence. From an adverse judgment, the plaintiff appeals.

Affirmed.

J. C. Long and Arthur Rittenberg, both of Charleston, for appellant.

Paul M. Macmillan, of Charleston, for respondent.

FISHBURNE, Justice.

This action was brought for the recovery of damages for personal injuries, and resulted in a judgment of nonsuit. The complaint alleges that the plaintiff was employed as a salesman of the defendant in one of its stores in the city of Charleston; that the defendant was an "employer" with-

[5 S.E.2d 863]

in the meaning of the South Carolina Workmen's Compensation Act, Code Supp.1936, § 7035-1 et seq, at the time the plaintiff suffered his alleged injury, and the plaintiff was an "employee" within the meaning of the Act; that the defendant had rejected the provisions of the Workmen's Compensation Act, and was therefore liable in damages for any actionable negligence resulting in injury to the plaintiff, without the benefit of any of the common-law defenses.

While the complaint contains general allegations of negligence on the part of the defendant in failing to furnish a safe place to work, and suitable appliances, these allegations are limited by specific allegations which charge the defendant with negligence in maintaining a slippery floor immediately in front of its refrigerator, --made slippery by allowing water to leak therefrom upon the floor, and by allowing waste food products to accumulate thereon, which rendered it dangerous to walk upon; and failure to make proper inspection. It is alleged that the plaintiff on July 8, 1937, while acting as manager of the store, slipped on the floor and fractured his ankle.

The answer admitted the allegation that the defendant had rejected the provisions of the South Carolina Workmen's Compensation Law; admitted the employment of the plaintiff as acting manager, and alleged that in such capacity the plaintiff was solely responsible for the control and management of the store. All other allegations of the complaint are denied.

The testimony for the plaintiff tends to show that he had been employed as a clerk in the defendant's store for about seventeen months prior to his injury. That the manager of the store was away on his vacation; that the plaintiff, during his absence, had taken his place as acting manager in control of the store, and had been serving in this capacity for about one week prior to the time he says he was injured. While acting as manager his salary was increased from seventeen dollars per week to twenty-five dollars per week. He was standing in front of the refrigerator serving a customer with cheese, which he had wrapped, and was starting back to the front of the store to deliver the package when he slipped on the floor and fell, fracturing his ankle. This occurred about three o'clock in the afternoon of July 8, 1937.

The testimony further shows that the drain pipe of the refrigerator was stopped up, and that when the ice melted from the coils the water did not flow upon the floor, but dripped down to the bottom of the refrigerator upon the lettuce, celery, and other vegetables placed there. In the course of serving customers, these vegetables were taken from the refrigerator throughout the day, and when removed they were wet, and water would drip from them upon the floor. Butter and other products would also fall to the floor in small quantities in the course of serving the trade. The floor was swept and cleaned up from time to time during the day by a negro delivery boy, under the direction of the plaintiff, and on the day in question the floor was cleaned at nine o'clock in the morning, and again at twelve o'clock noon.

One other clerk worked in the store with the plaintiff.

The plaintiff testified that he did not know what he slipped on; that the floor was slippery and slimy, --all of which he knew because he said this condition had prevailed for months; that the defective condition of the refrigerator had been reported to the defendant, and that a Mr. Sole, who was the supervisor of all of the defendant's stores in the city of Charleston, had inspected it. It was repaired, but soon became defective again. Although Mr. Sole had general supervision of all the stores in Charleston, the plaintiff at the time of his injury was in the actual control as acting manager of the particular store in which he was hurt, and had been vested with and exercised this authority for one week prior to the accident. The plaintiff also said that during the course of the morning on which he was hurt, he dropped butter on the floor in front of the refrigerator, which he did not clean up. The negro porter testified that after the accident, he examined the floor where the plaintiff had fallen and found butter on the floor in front of the refrigerator, some of which had melted, and that the floor was damp.

We shall first pass...