R. E. Cox Dry Goods Co. v. Kellog

• Decision Date: 28 November 1940
• Docket Number: No. 2251.,2251.
• Citation: 145 S.W.2d 675
• Parties: R. E. COX DRY GOODS CO. et al. v. KELLOG et al.
• Court: Texas Court of Appeals

Page 675

145 S.W.2d 675

R. E. COX DRY GOODS CO. et al. v. KELLOG et al.

No. 2251.

Court of Civil Appeals of Texas. Waco.

November 28, 1940.

Appeal from District Court, Nineteenth District, McLennan County; R. B. Stanford, Judge.

Action by P. S. Kellog and another against the R. E. Cox Dry Goods Company, W. H. Radebaugh, and Harriet Hubbard Ayer, Inc., to recover damages for personal injuries, in which defendant dry goods company filed a cross-action for judgment over against codefendants, and defendant Ayer filed a cross-action for judgment over against defendant dry goods company. From a judgment for plaintiff against defendants dry goods company and Ayer and a judgment over for defendant dry goods company against defendant Ayer, defendants dry goods company and Ayer appeal.

Judgment for plaintiff against defendant Ayer set aside, judgment for defendant Ayer rendered, judgment for defendant dry goods company against defendant Ayer reversed, judgment for defendant Ayer on defendant dry goods company's cross-action rendered, and judgment affirmed in all other respects.

Jos. W. Hale, Sleeper, Boynton & Kendall, and Naman, Howell & Boswell, all of Waco, for appellants.

Bryan & Maxwell and Orville Jobe, all of Waco, for appellees.

ALEXANDER, Justice.

This is an action for damages for personal injuries. There was evidence that W. H. Radebaugh, a traveling salesman, while in R. E. Cox Dry Goods Company store in Waco soliciting an order for products manufactured by Harriet Hubbard Ayer, Inc., set his sample cases in the aisle and that Mrs. Kellog stumbled over one of them and was severely injured. Mrs. Kellog sued Radebaugh and his alleged employer, Harriet Hubbard Ayer, Inc., hereinafter referred to as "Ayer," and R. E. Cox Dry Goods Company, hereinafter referred to as "Cox," for damages. Cox asked for judgment over and against Radebaugh and Ayer for any amount which it should be required to pay and Ayer likewise prayed for judgment over against Cox. Radebaugh filed a plea of privilege to be sued in Dallas county, the county of his residence. The plea of privilege was tried along with the main case and at the conclusion of the evidence, the plea was sustained and the suit as to Radebaugh was transferred to Dallas county. As to the other defendants, the case was submitted to the jury under special issues, and, in response thereto, the jury found, in substance, that one Joe Brown was an agent of Ayer for the sale of its products in Texas; that the nature of his agency was such as to make the employment of sub-agents necessary; that Radebaugh was Brown's sub-agent; and Ayer knew that he had been so employed; that a contractual relation existed between Radebaugh and Ayer; that Radebaugh, acting in the course of his employment and as sub-agent for the sale of the goods of Ayer, negligently placed his sample cases in the aisle of Cox's store and thereby created an unsafe condition; that while Mrs. Kellog was using the aisle of the store as a customer, she struck her leg against one of said sample cases and was severely injured as a proximate result of such negligence; that Ayer, in the sale of its goods, negligently failed to warn salesmen engaged in the sale of its products against placing sample cases in the aisles of stores, which negligence proximately caused the injury complained of; that Cox designated the place where Radebaugh should exhibit his samples of goods; that the use of such place for such purpose was reasonably calculated to create a dangerous condition; that Cox was negligent in designating the place which it did so designate and such negligence was the proximate cause of plaintiff's injuries; that Cox negligently permitted Radebaugh to place his sample cases in the aisle; and such negligence was the proximate cause of the injury; that prior to the accident Cox did not have notice of the presence of said cases in the aisle; that Cox failed to exercise ordinary care to discover the cases in the aisle prior to the injury; that except for such failure said defendant would have discovered the cases in the aisle in time to have removed same prior to the accident; and that such failure was the proximate cause of Mrs. Kellog's injuries. The jury further found that the relation existing between Radebaugh and Ayer was not that of an independent contractor. The same finding was made as to the relation existing between Joe Brown and Ayer. The jury fixed the amount of plaintiff's damages at $9,800. Accordingly, a joint and several judgment was rendered in favor of Mrs. Kellog against Cox and Ayer, and a judgment was rendered in favor of Cox over against Ayer for a like amount. Both Cox and Ayer have appealed.

Cox's first major contention is that the evidence was insufficient to show any negligence on its part, and, for that reason, the court should have instructed a verdict for it. It should be noted at the outset that Radebaugh was not an agent or employee of Cox and that if Cox is to be held liable at all, it is not because of Radebaugh's negligence in putting the cases in the aisle but because of Cox's failure to discover and remove them prior to the injury. The court submitted to the jury an issue as to whether, prior to the accident, Cox had notice of the cases in the aisle. The jury answered the issue in the negative. In connection with said issue, the court instructed the jury that by the term "notice" was meant "knowledge of such fact or facts as would put an ordinarily prudent person on inquiry, which inquiry, if followed with reasonable diligence, would lead to the discovery of the main fact, that is, the fact in question." We must presume therefore that Cox not only had no actual knowledge of the existence of the cases in the aisle but that said defendant did not have actual knowledge of any fact which would have put a reasonably prudent person on inquiry, but even though Cox had no such knowledge or notice, said defendant would be liable if the dangerous situation had existed long enough that a reasonably prudent person, in the exercise of ordinary care in looking after a store such as is here under consideration, would have discovered and removed the dangerous situation, for while a storekeeper is not an insurer of the safety of his customers while in his store, he is obligated to exercise ordinary care to keep the premises in a reasonably safe condition for their protection. 30 Tex. Jur. 871; 45 C.J. 837; Graham v. F. W. Woolworth Co., Tex.Civ.App., 277 S.W. 223; Texas-Louisiana Power Company v. Webster, 127 Tex. 126, 91 S.W.2d 302, 306; Bustillos v. Southwestern Portland Cement Company, Tex.Com.App., 211 S. W. 929. The mere finding that Cox had no knowledge of any fact which, if reasonably pursued, would have led to a discovery of the defective condition does not acquit said defendant of negligence in failing to exercise ordinary care to discover such facts. A storekeeper must exercise some care to see that his store is kept in a reasonably safe condition for his customers, even though he has no actual knowledge of any fact that would lead him to believe that a dangerous situation existed. Consequently, we must determine whether there was sufficient evidence to show that the sample cases had been in the aisle in such position as to create a dangerous situation long enough that, by the exercise of ordinary care, Cox should have discovered and removed same prior to the accident. The evidence shows that the aisle where the accident occurred was not a very wide one. Two people could walk down it abreast, but when someone was standing in the aisle, other customers had to pass down the aisle single file. In fact, Radebaugh testified that when he was standing in the aisle, stooping over the counter writing out his order, no one could get through the aisle unless he straightened up. There was a show case on the east side of the aisle and a table on the west side. Radebaugh went to the show case to exhibit his samples and secure an order for his goods. He was in the store somewhere between forty minutes and an hour. There is a dispute as to whether he had four or five sample cases. The witnesses described the cases as being from 7 to 10 inches wide. They were from 12 to 14 inches high. Radebaugh testified that he set some of the cases in the aisle, end to end, flat up against the panel of the table on the west side of the aisle and put the others on the show case and removed his samples therefrom. From time to time, after he finished with one case, he would replace the samples in it and place it in the aisle, flat against the table, and take up another one for the display of his samples. The sides of the table appear to have been boxed up approximately flush with the outside edge of the top of the table so that the cases could not be pushed back under the table. From this it appears...