Phelps v. Montgomery Ward & Co.

• Decision Date: 02 August 1937
• Citation: 107 S.W.2d 939,231 Mo.App. 595
• Parties: ETHEL PHELPS, RESPONDENT, v. MONTGOMERY WARD AND COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

107 S.W.2d 939

231 Mo.App. 595

ETHEL PHELPS, RESPONDENT, v. MONTGOMERY WARD AND COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Springfield

August 2, 1937

Appeal from Circuit Court of Butler County.--Hon. Robert I. Cope Judge.

AFFIRMED.

Judgment affirmed.

F. M Kinder, L. M. Henson and J. F. Woody for appellant.

L. E Tedrick and Phillips & Phillips for respondent.

FULBRIGHT, J. Allen, P. J., and Smith, J., concur.

OPINION

FULBRIGHT, J.--

On Sunday, March 22, 1936, defendant had a preparation called Myco-Sheen applied to its wooden floors. It was furnished by Masury-Young Company, a reputable manufacturer of Boston, Massachusetts, and applied by a competent and qualified representative of the company who did not testify. It was the first application of the preparation upon the defendant's floor. The preparation has not been applied since.

Plaintiff claims that she went into the store between four and five o'clock on Wednesday, March 25, accompanied by her mother; that she went to the piece goods counter, made a purchase and started to the office to pay her bill; that just as she was turning a corner around a table or counter her feet slipped from under her and she fell to the floor. What happened is explained by her in the following language.

"I told my mother to stay there until I went to the office and paid my bill. I turned to go down the aisle, and as I went to turn around the corner table, this foot slipped from under me and my left leg was twisted under me some way and I hit this leg, my right leg. . . . My feet slipped from under me. It seemed there was a slick place there at that corner and my feet went from under me when I started to go around that counter. I was walking at a medium gait. There were skid marks on the floor. Had shoes with medium heels. . . . The substance on the floor where I fell looked like it was greasy and dirty, at least that was what was on the back of my coat. . . . I do not know what the substance was on the floor of the store. It was right close to the leg of the table, looked like they had gotten too much there and it had not dried. . . . I think this counter that I was going around when I fell came all the way down to the floor. . . . I had not been in the store for a week or two before the accident. On this particular day it looked like the floor had been cleaned up. I have never heard of this Myco-Sheen works. . . . All I know about what was on the floor was what was on my dress, that is what I am judging by. . . . Mr. Lloyd said that they had put the dressing on there on Sunday and it ought to have been dry, and should not have been slick. The floor was slick where I stepped on it and fell."

Mrs. J. F. Higgins, mother of plaintiff, stated: "The spot on her dress looked like black, dirty greasy stuff. It was there after she fell."

N. T. Phelps, husband of plaintiff, stated: "I saw my wife when Mr. Lloyd brought her home. . . . Her dress had a greasy spot on the hip about as long as this pitcher, looked like floor oil or grease. It was not there before she fell. Sent the dress to the cleaner. I have been in the store before and after the accident. I know Mr. Lloyd told me when I came down that he had been afraid that somebody was going to slip up and break their neck on that floor." Mr. Lloyd denied this statement.

Plaintiff further testified that as a result of the fall she sustained an injury to her wrist and leg, and to the sciatic nerve on the left side; that she was in bed for some days, and was not able to use that leg for weeks; that hip still bothers her. It was not injured before and never pained the plaintiff before. She was taken to Brandon Hospital where her right leg and wrist were X-rayed. Three or four days after the injury plaintiff called Dr. J. Elliott Smith, an osteopath, who testified that her injuries were permanent, or that was his opinion.

On the part of defendant the testimony showed that the preparation, Myco-Sheen, which was applied to the floor on Sunday preceding plaintiff's fall, was manufactured by a reputable firm; that the preparation was made of seven different ingredients, gums and oils so blended that the oil penetrates the pores of the wood of the floor and the gums remain on top making the floor non-slip; that the product was in use in twelve thousand buildings and ten thousand stores scattered all over the United States. The preparation is first put on the floor and the floor is then mopped. This is done to clean the floor. The preparation is again applied and all surplus wiped off with a mop, and the floor is ready for use in half hour after the last application. Defendant's evidence further disclosed that between 1500 and 2000 persons visited this store daily during the month of March, or from 4500 to 6000 between the time the Myco-Sheen was applied to the floor and the time when plaintiff fell, and there is no evidence in the record that any of these persons slipped or fell on this floor, or suffered any inconvenience by the use thereof. The floor did not have the appearance of being slick or slippery and many of defendant's employees did not know the preparation had been applied until after the accident; that they afterwards learned about it and discussed it. They also testified that the floor was not slick.

Defendant presents an assignment containing a list of twelve alleged errors which are condensed under "Points and Authorities" to ten. We shall consider such assignments properly presented as are decisive of this case. In so doing, we shall first consider the assignment to the effect that the court erred in refusing defendant's demurrer offered at the close of plaintiff's case and at the close of the whole case.

In passing upon the demurrer, it must be borne in mind that all evidence favorable to plaintiff must be accepted as true and that she must be given the benefit of all favorable reasonable inferences that may be drawn therefrom. All evidence contrary thereto must be disregarded. This rule is so firmly established in our jurisprudence that citations are unnecessary.

It is the law that defendant is not to be held as an insurer and that its negligence as charged cannot result from any presumption arising from the mere fact that plaintiff slipped and fell on the floor. [Myers v. Golloday, 104 S.W.2d 1007, and cases cited.] But, "the proprietor of a store or similar place of business owes to his patrons the duty to use ordinary care to see that the place to which he has invited them is reasonably safe for use for the purposes for which it was designed and for which customers are invited there." [State ex rel., Elliott's Department Store Co. v. Haid, 330 Mo. 959, 51 S.W.2d 1015; Berberet v. Electric Park Amusement Co., 319 Mo. 275, 3 S.W.2d 1025, 61 A. L. R. 1269; Oakley v. Richards, 275 Mo. 266, 204 S.W. 505.]

The material part of plaintiff's testimony is set out in our statement of facts, and we shall not burden the opinion with a restatement thereof. By referring to the statement of facts it will be noted that the floor preparation, Myco-Sheen, was applied on Sunday, March 22, prior to plaintiff's alleged injuries on March 25, a lapse of approximately three days from the time of application to the date of the injury, a sufficient length of time, we think, for defendant, by the exercise of ordinary care, to have discovered the dangerous condition of the floor and have remedied such condition in time to have prevented plaintiff's fall and resultant injury. Moreover, the proof shows that Mr. Lloyd, defendant's assistant manager, soon after plaintiff's fall and injury, stated "that he had been afraid that somebody was going to slip up and break their neck on that floor." Mr. Lloyd and Mr. Thomas, manager, were in the store after the application of the floor preparation and up until the time of the injury. Mr. Thomas was there when the application was made.

It appears from plaintiff's testimony that a different condition of the floor existed at the point where she fell to other portions of the floor. "Looked like they had gotten too much there and it had not dried." As plaintiff turned around the corner of the table at this point her feet slipped from under her, skid marks were left on the floor. Plaintiff was walking at a reasonable gait and wore shoes with medium heels. The substance on the floor appeared to be greasy, oily, and dirty, and was close to the leg of the table or counter. Plaintiff had not been in the store for a week or two before her fall and injury, and had no knowledge of the floor preparation or its application. Other portions of the floor did not have the appearance of being slick and there was nothing to warn plaintiff that she was approaching a dangerously slick or slippery spot as she walked around the corner of the table or counter.

The fact that plaintiff's feet slipped from under her was a circumstance indicating slickness of the floor. The skid marks further indicated slickness. The testimony of plaintiff to the effect that at the point where she fell it "looked like they had gotten too much there and it had not dried," a substance that "looked like it was greasy and dirty," is borne out by the fact that her clothing after the fall was smeared with a dirty looking grease or oil. Plaintiff's mother who was with her, stated: "The spot on her dress looked like black dirty greasy stuff." N. T. Phelps, husband of plaintiff, stated: "Her dress had a greasy spot on the hip about as long as this pitcher. Looked like floor oil or grease." The evidence as above outlined, we think, is sufficient to establish the fact that the floor where plaintiff fell had an excessive amount of an oily, greasy substance, or Myco-Sheen, and was slick.

Defendant did not contend that this...