Pepperling v. Emporium Mercantile Co.

• Decision Date: 26 February 1937
• Docket Number: No. 31117.,No. 31118.,31117.,31118.
• Citation: Pepperling v. Emporium Mercantile Co., 271 N.W. 584, 199 Minn. 328 (Minn. 1937)
• Parties: PEPPERLING et al. v. EMPORIUM MERCANTILE CO., Inc.
• Court: Minnesota Supreme Court

271 N.W. 584

199 Minn. 328

PEPPERLING et al. v. EMPORIUM MERCANTILE CO., Inc.

No. 31117.

No. 31118.

Supreme Court of Minnesota.

February 26, 1937.

Appeal from Municipal Court of St. Paul; J. W. Finehout, Judge.

Actions by Richard Pepperling, a minor, by Floyd Pepperling, his father and natural guardian, and by Floyd Pepperling against the Emporium Mercantile Company, Inc. From orders denying defendant's motions for judgments notwithstanding verdicts for plaintiffs, defendant appeals.

Reversed, with directions.

Bundlie, Kelley & Finley, of St. Paul, for appellant.

A. B. Christofferson, Melvin J. Silver, and Stacker & Stacker, all of St. Paul, for respondents.

LORING, Justice.

The minor plaintiff sought recovery in the municipal court of the city of St. Paul for personal injuries sustained because of the defendant's alleged negligence. His father also brought suit in the same court to recover for medical expenses incurred. The actions were consolidated and tried together and verdicts for $250 and $50, respectively, were returned in favor of the plaintiffs. The defendant appeals from orders denying its motions for judgments notwithstanding the verdicts or for new trials. The question presented by this record is whether or not plaintiffs have established negligence on the part of the defendant.

Defendant maintains a large department store in the city of St. Paul, December 19, 1934, to attract customers to its store, defendant had some one there impersonating Santa Claus. Plaintiff, in company with his father, mother, two brothers, and a sister, went to the toy department of the store, where they remained for about an hour, after which they went down to the main floor and stopped at the drapery department where the parents engaged for some little time in the selection of some draperies. In going to the drapery department, they passed some 10 or 15 cedar chests which were on display on that floor. These chests were located somewhat to the right of an aisle along which they passed. While the parents were engaged in the selection of the draperies, plaintiff and one of his elder brothers became interested in examining the cedar chests, the cover to at least one of which they said was open. Their description of the accident to the plaintiff was that he put his finger upon the chest which was open and the cover fell on it and caused the injury complained of. Plaintiff and his brother both say that they did not otherwise disturb the chests. Upon this theory of the evidence the plaintiffs' complaints were drawn. Upon cross-examination, one of defendant's employees engaged in the wrapping of parcels testified that she saw the boys playing with the cedar chests and...