Pratt v. Womack
| Decision Date | 24 January 1961 |
| Docket Number | No. 38910,38910 |
| Citation | 359 P.2d 223 |
| Court | Oklahoma Supreme Court |
| Parties | Dick PRATT, J. B. Pratt and W. B. Pratt, d/b/a Pratt Grocery Company, Plaintiffs in Error, v. Myrtle WOMACK, Defendant in Error. |
Syllabus by the Court
1. Although a storekeeper is not an insurer of the safety of his customer while in the store, he does owe the customer the duty of maintaining the premises, such as the aisles and other portions thereof usually used by the customer, in a reasonably safe condition for such use, and the duty to warn such customer of any dangerous conditions existing in the areas so used, the customer having the right to assume that it is safe to walk in the aisles near the counters for the purpose of making a selection of that which he or she intends to buy.
2. In a civil action for damages for personal injuries, all the plaintiff is required to do in order to establish a case is to make it appear more probable that the injury resulted in whole or in part from the defendant's negligence than from any other cause, which fact may be established by circumstantial evidence and the reasonable inferences that may be drawn therefrom.
3. Although the rule is otherwise as to temporary disability, there is a presumption that permanent disability will continue indefinitely, in absence of evidence indicating a substantial change in the condition of the injured party during the intervening period between the date of evidence tending to establish such disability and the date of trial.
4. Where trial court submits to jury an element of damages not supported by the evidence, error is harmless in view of disposition of case by Supreme Court requiring a remittitur by plaintiff.
5. Generally, any suggestion by plaintiff, plaintiff's counsel or any of plaintiff's witnesses that defendant is covered by liability insurance, whether accomplished inadvertently or intentionally, is improper and prejudicial to defendant, and an admonition to the jury to disregard same will not necessarily cure the prejudice.
6. Where, in an action for damages for bodily injuries, the jury is effectively informed by a witness for plaintiff that the defendant is covered by liabiliy insurance, prejudice results, and on appeal by defendant from judgment for plaintiff this court will grant appropriate relief either by requiring a remittitur or directing a new trial.
Appeal from District Court of Love County; W. J. Monroe, Judge.
Action by Myrtle Womack, plaintiff against Dick Pratt, J. B. Pratt and W. B. Pratt, d/b/a Pratt Grocery Company, defendants, for damages for bodily injuries. Defendants appeal from judgment on verdict for plaintiff. Affirmed on condition of remittitur by plaintiff.
Butler, Rinehart & Morrison, Oklahoma City, Wilson Wallace, Ardmore, for plaintiffs in error.
J. W. Dixon, Marietta, Looney, Watts, Looney & Nichols, Oklahoma City, for defendant in error.
Defendants appeal from judgment on verdict for plaintiff in the amount of $5,000 as and for damages for alleged bodily injuries caused by a stack of canned goods in defendants' grocery store falling on plaintiff's foot.
Defendants first contend, in Proposition I, that there was no evidence of negligence on the part of defendants, in that there was no testimony that defendants 'stacked cannot goods extremely high, at approximately six or seven feet, and in an awkward and crooked manner,' as alleged in the petition. In this connection, it is argued that the cans could have been properly stacked and that a customer for example, could have caused them to become misaligned immediately prior to plaintiff's injury.
We think that the cases cited by defendants, although supporting the rule that there must be sufficient evidence of negligence to warrant submitting the issue to the jury, are distinguishable on the facts. In Whitehead v. Erle P. Halliburton, Inc., 190 Okl. 120, 121 P.2d 581, plaintiff slipped on a stairway, and afterward observed some strips of waste paper thereon, but there was no showing that defendant knew or should have known of its presence. In Tweed v. First National Building Corporation, 203 Okl. 31, 218 P.2d 356, there was no proof that the foreign substance on the stairs caused plaintiff's fall, or that plaintiff fell at that particular place. In Owen v. Kitterman, 178 Okl. 483, 62 P.2d 1193, we affirmed judgment for plaintiff, holding that there was sufficient evidence that defendant's employees had created an unsafe condition causing plaintiff to slip and fall on the floor.
In M & P Stores, Inc. v. Taylor, Okl., 326 P.2d 804, 805, we said, in the first paragraph of the syllabus:
'Although the storekeeper is not an insurer of the safety of his customer while in the store, he does owe the customer the duty of maintaining the premises, such as the aisles and other portions thereof usually used by the customer, in a reasonably safe condition for such use, and to warn such customer of the dangerous conditions existing in the areas so used, said invitee having the right to assume that it is safe to walk in the aisles near the counters for the purpose of making a selection of that which he or she intends to buy.'
See also, Great Atlantic & Pacific Tea Co. v. Mullen, Okl., 301 P.2d 217.
In the instant case, plaintiff testified that at the time of the occurrence, canned goods were stacked irregularly on the shelved higher than she could reach and were leaning in several different places in the store and that they had been so stacked on previous occasions.
In Covington Coal Products Co. et al. v. Stogner, 181 Okl. 35, 72 P.2d 491, 492, we said:
'In a civil action for damages for personal injuries all the plaintiff is required to do in order to establish his case is to make it appear to be more probable that the injury came in whole or in part from the defendant's negligence than from any other cause, and this fact may be established by circumstantial evidence and the reasonable inferences that may be drawn therefrom.'
We hold that there is sufficient evidence to make a prima facie case, on the theory that the cans were probably stacked by defendants' employees and/or that defendants knew or should have known of the condition for a sufficient length of time to have remedied same. J. C. Penney Co. v. Campbell, Okl., 325 P.2d 1056.
In defendants' Proposition 3, it is contended that there was insufficient evidence that plaintiff's injury was permanent to warrant submitting that element of damages to the jury.
Plaintiff testified that after first consulting Dr. M., in Marietta, Oklahoma, who treated and taped her foot, she went to a specialist at Ardmore, Dr. D.; that she was treated by him for two or three months, which treatment consisted of whirlpool treatments, massage, hot and cold applications, and taping and immobilization of the foot; that Dr. D. advised her to get crutches, and prescribed an inlay type of shoe for plaintiff to wear 'from hereon', which plaintiff was wearing at the time of trial.
Dr. M., an osteopath, testified that when he examined plaintiff's foot on September 28, 1957, it was quite edematous, swollen and discolored. Examination indicated that her foot was quite tender over the arch, both on the anterior surface and on deep palpation on the sole of the foot, and plaintiff flinched quite noticeably during the examination. He applied supportive bandages and advised her to continue hot applications. He saw her about five times before referring her to Dr. D. and noticed no improvement in her condition.
Although Dr. D. had not examined plaintiff for a period of about a year and a half prior to trial, his findings st his last examination, on October 15, 1957, were, in part, as follows:
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'It will be necessary for the patient to continue wearing her orthopedic inlays and her orthopedic shoes to maintain the proper function of her foot.'
On direct examination, he testified?
In the only case cited by defendants in support of this proposition, Griffin v. Asbury, 196 Okl. 484, 165 P.2d 822, the injuries were purely subjective, plaintiff having swallowed several pieces of broken...
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