Robinson v. Great Atlantic & Pacific Tea Co.

• Citation: 147 S.W.2d 648,347 Mo. 421
• Decision Date: 14 February 1941
• Docket Number: 37146
• Parties: Alice Robinson, an infant, by Mamie Robinson, her next friend, v. The Great Atlantic & Pacific Tea Company, a Corporation, and Eric Starmes, Appellants
• Court: United States State Supreme Court of Missouri

147 S.W.2d 648

347 Mo. 421

Alice Robinson, an infant, by Mamie Robinson, her next friend, v. The Great Atlantic & Pacific Tea Company, a Corporation, and Eric Starmes, Appellants

No. 37146

Supreme Court of Missouri

February 14, 1941

Appeal from Circuit Court of City of St. Louis; Hon. John W Joynt, Judge.

Reversed.

Jones, Hocker, Gladney & Grand, Web A. Welker and Vincent L. Boisaubin for appellants.

(1) There is no liability for injuries to an invitee of a storekeeper from dangers that are obvious or as well known to the person injured as to the proprietor, and the maintenance of which is in accordance with the reasonable conduct of the business. Cash v. Sonken-Galamba Co., 322 Mo. 349; Paubel v. Hitz, 339 Mo. 274; Stith v Newberry, 336 Mo. 481; Mullen v. Sensenbrenner, 260 S.W. 982; Reddy v. Faravelli, 102 S.W.2d 734; McGinnis v. Hydraulic Press Brick Co., 261 Mo. 287. (2) The liability of a storekeeper to an invitee is that of ordinary care. No liability attaches to the storekeeper unless his "superior knowledge" of the existence of the dangerous substance or obstruction is shown either actually or constructively. Vogt v. Wurmb, 318 Mo. 475; Becker v. Aschen, 131 S.W.2d 533; Stoll v. First Natl. Bank, 134 S.W.2d 100; Smith v. Sears, Roebuck & Co., 117 S.W.2d 661. (3) In the absence of direct testimony that the dangerous substance or obstruction which caused the injury was actually known to the storekeeper or his responsible employees, or had existed for sufficient time to charge the storekeeper with knowledge thereof, and that the storekeeper had sufficient time to have removed the danger after acquiring knowledge thereof, there can be no recovery by an invitee of the storekeeper. This "knowledge" cannot be left to mere speculation or conjecture. McKeighan v. Kline's, Inc., 339 Mo. 531; State ex rel. Trading Post v. Shain, 342 Mo. 593; Varner v. Kroger Gro. & Baking Co., 75 S.W.2d 587; Cooke v. Great A. & Pac. Tea Co., 168 S.E. 679, 204 N. S. 495; Bader v. Great A. & Pac. Tea Co., 169 A. 688, 112 N. J. L. 241; Knowles v. Great A. & Pac. Tea Co., 192 N.E. 2; Cartoff v. Woolworth Co., 160 N.E. 109; O'Leary v. Smith, 150 N.E. 879; Woolworth v. Williams, 41 F.2d 971. (4) A case cannot be established on mere conjecture. Where the evidence justifies two inferences, one of which would sustained a verdict and the other would not, plaintiff's case must fail. State ex rel. Trading Post v. Shain, 342 Mo. 593; Lappin v. Prebe, 131 S.W.2d 513; Prushensky v. Pucilowski, 169 N.E. 422, 269 Mass. 477.

Reardon & Lyng and John H. Martin for respondent.

(1) The demurrer to the evidence submitted at the close of plaintiff's case, and again at the close of the entire case, was properly overruled. There was no need to show how long this particular box was in the aisle so as to charge the appellant with notice of the condition. Armstrong v. Kroger Gro. & Baking Co., 78 S.W.2d 564; Wood v. Walgreen Drug Store, Inc., 125 S.W.2d 534; Scott v. Kline's, Inc., 284 S.W. 831; Stith v. Newberry Co., 79 S.W.2d 447. (2) The giving of Instruction 1 did not constitute error. Armstrong v. Kroger Gro. & Baking Co., 78 S.W.2d 564; Wood v. Walgreen Drug Store, Inc., 125 S.W.2d 534; Scott v. Kline's, Inc., 284 S.W. 831; Stith v. Newberry Co., 79 S.W.2d 447. (3) Plaintiff was not guilty of contributory negligence as a matter of law. Armstrong v. Kroger Gro. & Baking Co., 78 S.W.2d 564; Parton v. Phillips Petroleum Co., 107 S.W.2d 167; Cento v. Security Bldg., 99 S.W.2d 1; Howard v. Sacks Co., 76 S.W.2d 460; Gardner v. Turk, 123 S.W.2d 158.

OPINION

Gantt, J.

Action for personal injuries. Plaintiff alleged injury by falling over a box of sweet potatoes in the vestibule exit from defendants' store. She also alleged that the box was negligently "caused, suffered and permitted" to be and remain in the exit. Judgment for $ 10,000 and defendants appealed.

Defendants contend that they had neither actual nor constructive notice of the obstruction in the exit, and for that reason the court should have sustained the demurrer at the close of all the evidence. The rule is stated as follows:

"The applicable law, as announced by the courts of this State, is that a storekeeper is not liable to his invitee for injury resulting from a dangerous and unsafe condition of the store unless it is shown that the storekeeper had knowledge, actual or constructive, of such condition in time by the exercise of ordinary care to have remedied the condition before the occurrence of the injury. [Smith v. Sears, Roebuck & Co., 117 S.W.2d 658, l. c. 661; McKeighan v. Kline's Inc., 339 Mo. 523, 98 S.W.2d 555; Broughton v. S. S. Kresge Co. (Mo. App.), 26 S.W.2d 838; Hogan v. S. S. Kresge Co. (Mo. App.), 93 S.W.2d 118; Varner v. Kroger Grocery & Baking Co. (Mo. App.), 75 S.W.2d 585; Hubenschmidt v. S. S. Kresge Co. (Mo. App.), 115 S.W.2d 211; Monsour v. Excelsior Tobacco Co. (Mo. App.), 115 S.W.2d 919; Scott v. Kline's, Inc. (Mo. App.), 284 S.W. 821.]"

The store building is on the south side of a street in St. Louis. The entrance is from a vestibule, and the exit is into a vestibule in the north end of the building. The sidewalk is six inches lower than the floor of the vestibule. In the center of the south side of the vestibule is a display window. On the west side of the display window is the entrance to the store. On the east side of the display window is the exit from the store. The entrance and exit doors open outward. On each side of the vestibule are display windows.

At the time of the injury and for several weeks prior thereto the defendant company maintained an exhibit of sweet potatoes in the center of the vestibule, which extended from the center display window to within a few inches of the north floor line of the vestibule. The potatoes were in boxes two feet long, one foot wide and eight inches deep. The exhibit was two feet wide and sloped downward and northward from the center display window to within a few inches of the north line of the vestibule. On one side of the vestibule and against the side display window were one hundred pound sacks of Irish potatoes. On the other side of the vestibule and against the side display window were mesh sacks of onions. On opening the store each morning during the special sale of sweet potatoes and other vegetables, the manager and clerks set up these exhibits in the vestibule, which is eleven and one-half feet wide. The entrance and exit, through the vestibule to and from the store, were about three feet in width on each side of the sweet potato display. Generally the vegetables were sold from the vegetable rack in the rear of the store building. Occasionally vegetables were sold from displays in the vestibule.

On the afternoon of the day of the injury, plaintiff came from the east to the store with her mother and father. The father remained on the sidewalk in front of the store. Plaintiff and her mother walked past the front of the store and entered through the west door. In passing they saw the above described exhibits on display. They did not see a box of sweet potatoes in the vestibule exit from the store. They were in the store ten or fifteen minutes. The mother made settlement for purchases with the cashier near...