Romney v. Davis, 35487
| Decision Date | 10 February 1953 |
| Docket Number | No. 35487,35487 |
| Citation | 253 P.2d 546,208 Okla. 81 |
| Parties | ROMNEY v. DAVIS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where a pleading states facts upon which a pleader is entitled to relief under the law, a general demurrer to the same should be overruled.
2. One who enters a retail store for purpose of shopping is an invitee to whom proprietor owes duty of maintaining premises in reasonably safe condition for use in accordance with invitation and, in absence of knowledge to contrary, the invitee has right to assume that the premises and fixtures are in safe condition.
3. A question of law presented and argued on appeal that is not shown to arise under the facts and record will not be considered and determined.
Allen & Allen, Tulsa, for plaintiff in error.
Rosenstein, Fist & Shidler, by Gordon L. Patten, Tulsa, for defendant in error.
Plaintiff brought this action in the justice of the peace court to recover damages to personal property alleged to have resulted from defendant's negligence in failing to properly maintain his premises.
The bill of particulars alleged plaintiff's entry into defendant's store as a business invitee and defendant's duty to maintain his premises in a safe condition; that defendant maintained a gas heater which had no door, thus exposing the public to the open flame; while standing near the heater the exposed flame burned and damaged her coat. Plaintiff alleged the flame was not obvious to a reasonable person and that no warning notice was posted; that by failing to properly maintain the premises defendant was guilty of maintaining a nuisance, and as a result of such condition, nuisance and negligence on defendant's part, such negligence was the proximate cause of plaintiff's injury and damage.
Defendant answered by general and specific denial of plaintiff's allegations, and further alleged that any damage sustained by plaintiff resulted solely from her own carelessness and negligence in standing near the heater until her coat was scorched and damaged.
Trial in the justice of the peace court resulted in judgment for plaintiff for the amount claimed. Defendant appealed to the Court of Common Pleas, where the matter was tried to the court without a jury, and judgment again was rendered for plaintiff.
Plaintiff's evidence was that she entered defendant's store to purchase groceries. It was a cold day and she walked to a heater, centrally located in the store, to warm herself. A little time elapsed when she smelled something burning and thereupon discovered that the right flap of her fur coat was scorched to such an extent as to require repair at a cost of $86.50. Plaintiff's evidence also was that the stove had no door, thus permitting the flames to extend outside the stove. There was further evidence that certain employees had burned their aprons while standing near the stove. Defendant's evidence concerned the condition of the stove, and that plaintiff stood too near the stove while warming, although it was admitted than an employee he burned an apron. Defendant's evidence did not establish existence of a door upon the heater, or that there was any guard to protect people from the front of the stove.
Defendant relies upon three propositions to reverse the judgment. It is urged that the bill of particulars failed to state a cause of action and defendant's demurrer thereto should have been sustained. The rule is that when pleading states facts upon which the pleader is entitled to any relief, a general demurrer thereto should be overruled. Stevens v. Colby, 182 Okl. 213, 77 P.2d 67.
This was an action to recover damages allegedly resulting from defendant's negligence in failing to maintain his premises in proper condition. The plaintiff alleged defendant's acts and omissions and that same constituted negligence, which was the proximate cause of the injury and damage. Such pleading set out facts sufficient to provide grounds for granting plaintiff relief, when tested by the rule that the demurrer admitted the truth of all facts well pleaded and the inferences to be drawn therefrom, and was to be liberally construed in favor of the pleader. Kasner v. Ashburn, 200 Okl. 256, 192 P.2d 649. Defendant's demurrer to the petition was properly overruled.
The second contention is that the plaintiff's evidence was wholly insufficient to support the trial court's judgment. It is asserted that plaintiff's evidence failed to show primary negligence on part of the defendant. And, further, it is urged that no liability for injury can be based upon dangers which are obvious, reasonably apparent, or as well known to the party injured as to the owner. See Hejduk v. Snyder, 76 Okl. 74, 183 P. 923; City of Tulsa v. Harman, 148 Okl. 117, 299 P. 462; E. S. Billington Lumber Co. v. Cheatham, 181 Okl. 402, 74 P.2d 120, and cases therein cited.
The principle upon which defendant's argument is based, as reflected in the cited cases, is stated in 65 C.J.S., Negligence, § 50, as follows:
'* * * However, the doctrine of...
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T.I.M. Co., Inc. v. Oklahoma Land Title Ass'n
...absence of any basis upon which to base a decision. See Way v. Grand Lake Association, Inc., 635 P.2d 1010 (Okl.1981); Romney v. Davis, 208 Okl. 81, 253 P.2d 546 (1953). However, to invoke the jurisdiction of the trial court it is only necessary that one of the contestants be found to have ......
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...H. Kress & Co. v. Maddox, 201 Okl. 190, 203 P.2d 706; Safeway Stores, Inc., v. Whitehead, 190 Okl. 464, 465, 125 P.2d 194; Romney v. Davis, 208 Okl. 81, 253 P.2d 546. The evidene in this case was sufficient to present the issue of defendant's negligence to the jury. Under proper instruction......
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Copeland v. Anderson
...to such a demurrer is that if a petition states any "facts" entitling the pleader to relief it should be overruled. Romney v. Davis, 208 Okl. 81, 253 P.2d 546 (1953). Of course the flip side of this legal coin is that if the petition states insufficient facts for any relief a general demurr......