Robinson v. F.W. Woolworth Co.
| Decision Date | 07 November 1927 |
| Docket Number | 6170. |
| Parties | ROBINSON v. F. W. WOOLWORTH CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.
Action for personal injuries by Jenny C. Robinson against the F. W Woolworth Company. From a judgment in favor of plaintiff defendant appeals. Reversed and remanded.
T. J. Davis and Earl N. Genzberger, both of Butte, for appellant.
Lamb & Malloy, of Butte, for respondent.
This is a personal injury damage action. Defendant conducts a store in Butte. Plaintiff's amended complaint, in brief, alleges that, for display of merchandise, defendant had in its store tables and counters, so arranged as to form aisles for the use of customers, and that it invited the public to view and patronize its store; that, on or about August 26, 1924, defendant placed oil upon the floors of the aisles of its store and that defendant negligently permitted the oil to remain on the floors; that defendant negligently failed to have any signs or signals of warning of the existence of the oil upon the floors; that the oil caused the floors to be slippery and dangerous for use; that, on August 26, 1924, while the oil was on the floors and while the floors were slippery and dangerous therefrom, plaintiff entered the store, and, without knowledge of the slippery and dangerous condition of the floors and wholly unaware thereof, while walking down one of the aisles and without fault upon her part, she slipped and fell upon the floor, and, as a result thereof, sustained a Colle's fracture of her left wrist, a sprain of her left hand, a contusion of her left leg, and a bruise and a sprain in the lower part of her back. The complaint further alleges physical pain and distress, permanency of the injury to her back, permanent disability, expense for medical attention; also that plaintiff had been a teacher in the public schools, receiving a salary of $150 per month, and would have continued to teach therein and to receive therefor such salary, had it not been for her injuries, which rendered her incapable of further following the vocation of teacher. Some other allegations, mostly of a formal nature and not necessary to mention, are made. In conclusion, the complaint alleges damages, by reason of the negligence of defendant, in the sum of $25,069.50, and prays judgment for that sum.
Defendant demurred, specially and generally, to the complaint. When we say complaint we mean amended complaint. The demurrer was overruled and defendant answered. The answer, except for admission of some formal allegations of the complaint, is wholly of a negative character, denies specifically some allegations, and denies generally all allegations not admitted or specifically denied.
The case was tried with a jury. At the beginning of the trial, defendant renewed its challenge of the sufficiency of the complaint by objecting to the introduction by plaintiff of any evidence. The objection was overruled. The jury returned a verdict, in the sum of $2,350, for plaintiff. Judgment in accordance therewith was rendered and entered. Defendant moved for a new trial. The motion was denied. Defendant appealed from the judgment and specifies numerous assignments of error.
We consider first the assignments which attack the complaint. The special grounds of demurrer, set forth in defendant's demurrer, are that the complaint is ambiguous, unintelligible, and uncertain in a number of specified particulars. By answering, after being overruled as to those grounds, defendant waived such objections to the complaint. Pue v. Wheeler, 78 Mont. 516, 255 P. 1043. That leaves for our consideration only the contention, interposed by demurrer and objection to introduction of evidence, that the complaint does not state facts sufficient to constitute a cause of action.
Counsel for defendants attack the sufficiency of the complaint in a number of particulars. They assert it is fatally defective because there is no allegation that defendant had notice, actual or implied, of the condition of the floors which, it is alleged, caused injury, and cite McEnaney v. City of Butte, 43 Mont. 526, 117 P. 893, and Phillips v. Butte Jockey Club & Fair Association, 46 Mont. 338, 127 P. 1011, 42 L. R. A. (N. S.) 1076. Those cases are different from this one. In them the dangerous or defective conditions which caused injury were not of the defendants' own making; here, according to the complaint, it is so. When a party intentionally creates a condition, he is held to have knowledge of it, and notice is not necessary. William Laurie Co. v. McCullough, 174 Ind. 477, 90 N.E. 1014, 92 N.E. 337, Ann. Cas. 1913A, 49. In line with this statement of the law is Hollingsworth v. Davis-Daly Copper Co., 38 Mont. 143, 99 P. 142, wherein it is held that, if it be alleged that a defendant negligently did a thing dangerous to others, or negligently permitted a dangerous condition to exist, knowledge is inferred and need not be alleged. In the case at bar it is alleged that defendant created the alleged dangerous condition and negligently permitted it to continue. Knowledge on the part of the defendant may be implied from an averment of his negligence. 4 Bancroft's Code Pleading, 3543. Therefore an allegation of knowledge or notice was not necessary.
Counsel for defendant contend that the complaint does not allege facts constituting negligence on the part of defendant and insist that the words "negligently," "slippery," and "dangerous," used in the complaint, are merely descriptive and are not sufficient to show negligence. In support of that contention, counsel cite Surman v. Cruse, 57 Mont. 253, 187 P. 890. There is just one sentence in the opinion which sheds light on the question at hand:
"Whether there is a sufficient charge of negligence must be determined from the facts alleged, not from the use of the descriptive terms 'negligently and carelessly."'
We assent to that. However, the complaint before us alleges facts. The statement therein that the floors were made dangerous and were allowed to remain so states facts. True, in Pullen v. City of Butte, 38 Mont, 194, 99 P. 290, 21 L. R. A. (N. S.) 42, the complaint merely alleged that the defendant negligently, willfully, carelessly, and wrongfully, caused a street to be placed in an unsafe, dangerous, and defective condition, and negligently (and so forth) permitted it to remain so; and true this court held that the complaint was insufficient and that it should have set forth the facts constituting the negligence and showing how and wherein the street was dangerous. The complaint before us, however, tells how the floors were dangerous and how made dangerous; i. e., by oil being put on the floors, and the oil made the floors slippery, and, because slippery, they were dangerous for use, and negligently no signs or signals of warning were put up, and the oil was negligently permitted to remain on the floors. The language is not so ample as usual or as caution might suggest, but we believe it saves the complaint from fatally falling short. "Negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which renders the act negligent." Forquer v. North, 42 Mont. 272, 112 P. 439; Smith v. Buttner, 90 Cal. 95, 27 P. 29.
Counsel say nowhere does the complaint allege that the oiling was done in an improper manner, or with an improper substance, or that the floor was in any other or different condition than would result from proper oiling, or that the substance used for oiling was unusual or different from that ordinarily used, and contend that on account thereof the complaint is fatally defective, and cite some cases in support of the contention. We do not so read the pleading. It does not have to show all of those disjunctive conditions-only one; and, when the complaint says the oil made the floors or aisles slippery and dangerous for use, it certainly shows that the floors were in other or different condition than would result from proper oiling. Certainly proper oiling would not make the floors dangerous. The complaint says the oil put on the floors of the aisles made the aisles slippery, but evidently means the floors of the aisles.
Counsel say there is no allegation of actionable negligence arising from breach of legal duty. True the complaint does not, in terms, allege a legal duty and breach thereof, but it is not always necessary to do so. There are decisions of this court holding that in some negligence cases there must be formal allegations of a legal duty owing by a defendant to a plaintiff, and breach thereof; but, in a simple case such as this, allegation of facts which show a legal duty and breach thereof is sufficient. 4 Bancroft's Code Pleading, 3536. The complaint alleges defendant conducted a store and invited the public to view and patronize it. The law fixes its legal duty and says what it is. It is to exercise ordinary care to keep its premises safe for patrons and to warn them of any hidden or lurking danger thereon. Montague v. Hanson, 38 Mont. 376, 99 P. 1063. A pleader is not required to plead matters or declarations of law. Defendant by law being under that duty, the complaint certainly shows that it breached the duty by putting on the floor oil, which it negligently allowed to remain there without warning to the public, when, as alleged, the oil made the floor slippery and dangerous for use by patrons. Premises cannot be both safe, as required, and dangerous, as alleged at the same time. Whatever is necessarily implied in or is reasonably to be...
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