Ralph v. MacMarr Stores

• Decision Date: 05 December 1936
• Docket Number: 7592.
• Citation: 62 P.2d 1285,103 Mont. 421
• Parties: RALPH v. MacMARR STORES et al.
• Court: Montana Supreme Court

62 P.2d 1285

103 Mont. 421

RALPH v. MacMARR STORES et al.

No. 7592.

Supreme Court of Montana

December 5, 1936

Appeal from District Court, Silver Bow County, Second District Frank L. Riley, Judge.

Suit by Margaret Ralph against the MacMarr Stores and another. From an adverse judgment, the defendants appeal.

Reversed with instruction to grant a new trial.

Kremer & Kremer and H. D. Carmichael, all of Butte, for appellants.

A. G Shone and H. L. Maury, both of Butte, for respondent.

STEWART Justice.

This is an action for damages for personal injuries suffered by Margaret Ralph in falling over a box on the floor of a grocery store owned and operated by defendants, MacMarr Stores, a corporation, and Gerald R. Stafford, manager thereof, in the city of Butte.

The store was one of the type commonly designated "self-service." The tables, counters, and floor displays were so arranged as to form aisles for the use of customers, who might themselves proceed to any part of the store for the purpose of selecting merchandise displayed therein.

Just inside the main entrance there was a rack of shopping baskets for the use of customers. A customer, upon entering the store, could take one of the baskets and proceed around the store selecting the items desired for purchase. As selections were made the merchandise was placed in a basket, and when everything desired was selected, the basket was taken to a wrapping or checking counter near the center of the store, and everything taken from the basket, checked and wrapped by an employee of the store.

On February 15, 1935, shortly after 5 o'clock in the afternoon, plaintiff with a friend, one Margaret McLeod, entered this store for the purpose of purchasing groceries. Each took a shopping basket and proceeded to different parts of the store to select the items desired; there is some conflict as to just where each of them went in the store. However, it appears that Mrs. McLeod was the first to assemble her selections. She thereupon carried her basket and its contents to the wrapping and checking counter. At about the same time plaintiff, having selected all of the grocery items she desired, walked toward the front of the store where the vegetables were kept for the purpose of selecting a head of lettuce. There is some conflict in the evidence as to whether she carried the shopping basket with her at this time, or had left it on the wrapping counter. She testified that when she fell, she had the basket and her purse in her hands. In any event, after choosing the head of lettuce she turned from the vegetable rack and started to walk back down the aisle toward the wrapping and checking counter. She had gone only a few steps when she stumbled over a box and fell to the floor. While there is some conflict in the evidence on the point, it is fairly clear that the box over which she stumbled was sitting against a display counter and protruding somewhat out into the aisle along which she was walking. The box contained twelve quart jars of Miracle Whip salad dressing. It was a paste board box 16 1/2 inches long, 12 1/2 inches wide, and 7 1/2 inches high. It was sealed and unopened and had apparently been recently delivered to the store by the Montana Service Corporation.

The defendant Stafford, the manager of the store, was not in the store at that time; he had gone off shift at 5 o'clock. There were three clerks on duty--Harold Heinicke, Howard Casey, and Lindley Barry. Heinicke was head clerk, in charge while Stafford was absent. Barry testified that he had passed down the aisle and had seen the box sitting against the display counter about five minutes before the accident. The other two clerks said that they never saw the box at all until afterwards.

There was some conflicting testimony as to the number of boxes; however, plaintiff testified that there was only the one over which she tripped. None of the three clerks knew who had placed the box at that place; none of them had seen the Montana Service Corporation deliveryman bring such a box into the store; and none of them had signed the delivery receipt for the box or the merchandise which it contained. There is no direct evidence as to who actually received this merchandise and signed the receipt for it.

A delivery receipt was finally obtained from the Montana Service Corporation and introduced in evidence. It showed that a box containing one dozen quart jars of Miracle Whip had been delivered to the store on that day, and that the delivery receipt had been signed with the initials "G. S." It was also shown that such merchandise, when received at the store, might have been received and receipted for by any of the clerks or the manager; that such goods were always "signed for" when delivered; and that the deliveryman for the Montana Service Corporation would not leave merchandise unless "signed for." When merchandise was thus received in the store and "signed for," one copy of the invoice was kept by the store and one copy was retained by the truck driver who delivered the goods.

While there was conflict in the evidence as to the width of the aisle through which plaintiff was walking when she fell, it appears to have been approximately five feet wide. Plaintiff testified that she did not see the box and did not know of its presence or that it protruded out into the aisle, until she had fallen over it. It appears that the store was quite well lighted at the time; that it was still daylight outside; that there were also at least four strong electric ceiling lights burning; and that one of these lights was situated immediately over the aisle in which plaintiff fell. It further appears that at the time of the accident there were some fifteen or twenty people in the store, and that it was one of the busiest hours of the day.

Evidence was introduced to show that plaintiff had previously on many occasions visited this particular store, as well as other stores of the same type, and that it was customary for such stores to display potatoes, apples, boxes, of oranges or onions, etc., all around on the floors, setting them on the floor alongside the display counters.

While the record discloses a great deal more evidence similar in nature to that outlined above, a more extended recitation thereof is unnecessary for the purposes of this opinion. The cause was tried to the court sitting with a jury. Defendants' motions for nonsuit were denied, and the matter was finally submitted to the jury with instructions from the court. The jury returned a verdict in favor of plaintiff for $12,000; judgment was entered thereon; motion for new trial was made and denied; and thereafter appeal perfected.

Defendants' specifications of error present several questions for determination. The first proposition concerns the court's refusal to grant defendants' motions for nonsuit. They assert that plaintiff's action was predicated upon the theory of an overt act of negligence on the part of defendants, viz., the placing of the box on the floor, and allowing it to remain there without proper warning. They point out that the complaint contains no direct or specific allegation that defendants had notice of the condition, and that there was no proof that defendants placed a box in the position referred to, or that they maintained it in such a place. Accordingly they argue that plaintiff is in the position of one who charges another with negligence because of a failure to remedy a defect not of his own making; that if in such circumstances plaintiff is to prevail, the complaint should allege, and the evidence establish, that defendants had knowledge of the dangerous condition, or that such a condition existed for such a length of time, without being remedied, as to charge them as a matter of law with knowledge thereof. The contention thus advanced constituted one of the principal grounds urged by defendants in support of their motions for nonsuit.

Considered as an abstract principle of law, this contention is undoubtedly correct. See McEnaney v. City of Butte, 43 Mont. 526, 117 P. 893; Phillips v. Butte, etc., Fair Ass'n, 46 Mont. 338, 127 P. 1011, 42 L.R.A. (N.S.) 1076; Doran v. United States Building & Loan Ass'n, 94 Mont. 73, 20 P.2d 835. It is not applicable, however, to the instant case. It may be true, as defendants suggest, that there is no evidence that they were actively negligent, i. e., that they placed the box on the floor where plaintiff fell over it; but there was evidence from which the jury might find that, although someone else may have placed the box in the store at the point where plaintiff fell over it, still defendants had notice, or should have had notice, of the condition thereby created, and that they were negligent in permitting it to exist. We also find that the allegations of the complaint were broad enough to satisfy the requirement that where, in such cases, the negligence charged is not of an active nature, notice to defendant must be alleged and proved. The complaint here contains the allegation: "That on or about the said fifteenth day of February, 1935, the defendants placed a box filled with goods, about twelve inches long, ten inches wide, and ten inches high, upon the floor and in the aisle of their said store, and negligently permitted the same to remain on the floor and in the aisle," etc. In the case of Hollingsworth v. Davis-Daly Estates Copper Co., 38 Mont. 143, 99 P. 142, 145, this court, in discussing the same question, said: "Knowledge by the defendant is generally regarded as sufficiently averred by an allegation that the defendant negligently permitted appliances to become defective, and negligently suffered them [appliances] to remain in a defective condition (6 Thompson on Negligence, § 7529, and cases cited), and we...