Owl Drug Co. v. Crandall

• Decision Date: 05 July 1938
• Docket Number: Civil 3950
• Citation: 80 P.2d 952,52 Ariz. 322
• Parties: THE OWL DRUG COMPANY, a Corporation, Appellant, v. EUGENE F. CRANDALL and MARTHA CRANDALL, Appellees
• Court: Arizona Supreme Court

80 P.2d 952

52 Ariz. 322

THE OWL DRUG COMPANY, a Corporation, Appellant, v. EUGENE F. CRANDALL and MARTHA CRANDALL, Appellees

Civil No. 3950

Supreme Court of Arizona

July 5, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment reversed and cause remanded with directions to dismiss the complaint.

Messrs Cunningham & Carson and Messrs. Snell, Strouss & Salmon, for Appellant.

Messrs Struckmeyer & Flynn, for Appellees.

OPINION

ROSS, J.

Eugene F. Crandall and Martha Crandall, husband and wife, brought this action against the Owl Drug Company for damages for personal injuries sustained by the wife Martha, in the defendant's drug store in Phoenix, from a fall which it is claimed it was the duty of defendant's servants and agents to prevent, and which by the exercise of reasonable care they could have prevented.

At the close of plaintiffs' case, and at the close of the whole case, defendant moved for a directed verdict on the grounds (1) that there was no evidence that defendant or its agents were guilty of any negligence and (2) that there was no evidence of any causal relation between the injury to plaintiff and the negligence, if any, of the defendant.

The case was submitted to the jury and the jury's verdict was in favor of plaintiffs in the sum of $11,000, upon which judgment was duly entered.

The failure of the court to direct a verdict or to grant a new trial is urged as reasons for this appeal.

The defendant has in its drug store a lunch counter where it dispenses refreshments such as food and light drinks. In front of the lunch counter are revolving stools, set in a raise some fourteen inches wide and nine or ten inches above the level of the store floor, and parties ordering refreshments sit on these stools while being served. About 4 P.M., on December 4, 1935, the plaintiff Martha Crandall, after being served at the lunch counter turned the stool to get down onto the floor and in some way lost her balance and fell forward to the floor and in the fall received injuries that caused her to faint and numbed her right side from shoulder to foot. No complaint is made that this fall and injury were the result of any negligence of defendant or its servants. It is what happened after this fall that plaintiffs make the basis of their grievance. We quote from their amended complaint:

IV. That the said defendant, acting through its agents and servants employed by the defendant in said store, observed and noticed the fall of the plaintiff to the floor of said store and thereupon assumed to render aid to the plaintiff, but in so doing acted in a highly careless and negligent manner, in this: having observed the severe and sudden fall of said plaintiff, they undertook to assist her to rise and forced her to rise from said floor and undertook to assist her in rising, but in so assisting her to rise, suddenly and without warning to the said plaintiff released the hold which they then had upon her and by such sudden release, and while the said plaintiff was in a half stunned or fainting condition, which condition was readily observable by them, permitted her to fall again to the floor, thereby causing severe injuries to the said plaintiff. That they did assume to call in a physician and surgeon for the purpose of having her examined and did, after a claimed examination, inform the said plaintiff that she was not injured, when in fact the plaintiff by said second fall had sustained severe injuries, hereinafter more particularly described, and did force the plaintiff to remain in said store for a long space of time, to-wit, for more than one hour, without rendering her any other or further assistance or aid, except such negligent assistance and aid as hereinbefore stated.

"V. That by said second fall the said plaintiff, Martha Crandall, sustained a comminuted fracture of the neck of the right femur,...."

The rule of the law of torts that plaintiffs rely upon as justification for their claim for damages is:

"One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by

"(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge;

"(b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him." 2 Am. Law Inst., Torts, sec. 324.

This statement of the law we accept as correct. The only question, then, is, do the facts of this case bring it within the scope of the rule. The defendant's employees, actuated by the noble and natural impulse of sympathy for a fellow being in dire distress and unable to help herself, immediately went to plaintiff and one of such employees on one side and another on the other side lifted plaintiff from the floor and seated her on the stool from which she had fallen, or one next to it, where she remained until a doctor came and made a cursory examination of her. The doctor advised that she be removed from the stool to an easier position, or as she testified "that they should get me on my feet so I could get my balance and I would be all right." It is undisputed that two employees, one on each side as above stated, undertook to help plaintiff from her seat at the lunch counter to the floor and in doing so, as she testified, while Mills, the defendant's manager was holding "on to my right arm... I swung around and fell in a heap." It appears from this statement that only one person was helping plaintiff when she "swung around" and fell, but upon her cross-examination she said she did not remember whether anybody else helped Mills; that she was in "a faint condition" and could not remember. All the witnesses said two persons were helping her, one on each side. The allegation of the complaint is that "they (agents and servants)... released the hold which they then had upon her," etc. -- an admission that more than one was helping her.

It is to this second fall that plaintiff ascribes her injuries. In her complaint she alleges that the men who assumed to help her "acted in a highly careless and negligent manner" and that they forced her from...