Prunty v. Bland

• Decision Date: 14 May 1970
• Docket Number: No. 15616,15616
• Citation: 454 S.W.2d 881
• Parties: Frances PRUNTY, Appellant, v. Bernice C. BLAND, d/b/a Houstonaire Gift Shop, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 881

454 S.W.2d 881

Frances PRUNTY, Appellant, v. Bernice C. BLAND, d/b/a Houstonaire Gift Shop, Appellee.

No. 15616.

Court of Civil Appeals of Texas Houston (1st Dist.).

May 14, 1970.

Rehearing Denied June 11, 1970.

Robert S. Pieratt, Houston, John Mustachio, Houston, of counsel, for appellant.

Beckmann, Stanard, Wood & Keene, John H. Wood, Jr., San Antonio, Lowell B. Hays, Houston, for appellee.

BELL, Chief Justice.

This is an appeal from a summary judgment granted the appellee, who was the defendant in a suit brought by appellant, appellee's employee, to recover damages for personal injuries received by her when a chair, furnished by the defendant employer, broke causing appellant to fall to the floor.

Appellant was the only employee in a gift shop operated by appellee. Appellee, therefore, carried no workmen's compensation insurance.

Appellant alleged the following acts of negligence on the part of appellee:

1. in failing to furnish plaintiff with a safe place to do her work,

2. in providing defective equipment around which plaintiff was required to work,

3. in failing to keep the equipment around which plaintiff was required to work in a reasonably good state of repair,

4. in providing equipment around which plaintiff had to work, which was not properly inspected, and which, upon reasonable inspection thereof, would have disclosed its defective and dangerous condition,

5. in failing to warn plaintiff of the dangerous and defective condition of said equipment around which she worked,

6. in failing to warn plaintiff of the dangerous and defective condition of the chair which broke and caused plaintiff's injuries.

In her answer, in addition to a general denial, the appellee plead generally that appellant was guilty of contributory negligence; that if the chair was defective, such defect was a latent and hidden one about which appellee could have, and had, no knowledge from usual and customary use and inspection; that if there was a defect, such defect was solely contributable to the manufacturer or distributor; that appellant voluntarily assumed the risk and exposed herself to the usual and customary hazards which she encountered in the performance of her duties, including the use of the chair; and, the fall of plaintiff was the result of an unavoidable accident.

The stool or chair which broke is not described in detail. It is referred to as a bar stool. Faint pictures in the record show the chair to have four legs at the base of what is referred to as a metal post. At the top of the metal post is fastened a seat. It was referred to as a swirl chair. It thus permitted swirling around on the seat while one was sitting on it.

Plaintiff was the only person present when the chair broke and caused her to fall. She injured her hand and arm. The post just below or where the seat was bolted is apparently where the break occurred. The evidence is scant concerning the exact point or nature of the break.

Plaintiff's deposition was introduced. She was the only regular employee working in the gift shop that was located at the Houstonaire Motor Inn. The incident occurred on or about July 27, 1967. Plaintiff was sitting in the chair. She had just made out a sales slip and turned in the chair to the side and it fell with her. The whole seat just fell to the floor with her. The post broke right at the swivel. She had used it for the two years she had worked there. She had had no trouble with it. There was nothing to indicate to her that the steel column would break off like that. The defendant would also use the chair and would swing around and there was nothing to suggest to plaintiff it would break off like that. Everyone used it. Some who used it weighed as much as 160 pounds. Defendant had never had occasion to warn her that it was dangerous and it should be repaired. At the time the chair broke the defendant was at the beauty parlor. Defendant was called and when she came to the shop defendant said 'that old chair, * * * I have been wanting to replace it but I just didn't take the time and now it is too late.' She didn't use the word 'dangerous'. She never had any reason to feel there was reason to look at or watch the chair. She felt it was safe or she wouldn't have used it. The chair was welded together by the maintenance man. She was told it was safe after it was welded and she used it.

The defendant in her deposition stated the stool was apparently in good condition. She had the engineer adjust it occasionally. She had it adjusted as to height. He was always careful in putting the bolt back in securely. She occasionally examined the stool. She was not aware it was unsafe. She thought it was improperly used and that was the reason it broke. Plaintiff had a habit of leaning back on two legs of the stool and that is what caused it to break. The engineer took it to a welder to weld it. The engineer who took it was Pete Fitzhugh. The stool was later used for awhile, but the defendant later bought a new one. The one that broke had been used about two years.

On the matter of inspections made by the defendant employer, the evidence reflecting reasonable inspection is very inconclusive. When asked if she made regular routine check of the equipment as to its safety for the employees, defendant answered she did but that there wasn't much in a gift shop requiring inspection. She did, however, make inspections. She stated she could not answer how long before the accident an inspection had been made. When asked in what way the chair would be inspected, she stated, 'That is pretty hard to answer.' When asked if she looked at the chair to see if it was all right for whoever might be employed there, she said, 'Well, I suppose that I did.' She stated she looked at it occasionally and quite often she had the engineer tighten the screws and they kept it up quite well. She could not tell the day the engineer did this. She had...