Rundlett v. Director

• Decision Date: 23 July 1935
• Parties: RUNDLETT v. DIRECTOR et al.
• Court: Oregon Supreme Court

47 P.2d 848

150 Or. 658

RUNDLETT v. DIRECTOR et al.

Supreme Court of Oregon

July 23, 1935

In Banc.

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Action by Maud B. Rundlett against Simon Director and another partners doing business under the firm name and style of Director's Department Store, for damages for personal injury caused by falling on the floor of a mercantile store. From a judgment for plaintiff, defendants appeal.

Affirmed.

L. A. Recken, of Portland, and Custer E. Ross, of Salem (Senn & Recken, of Portland, on the brief), for appellants.

Allan G. Carson and John H. Carson, both of Salem, for respondent.

KELLY Justice.

At the time involved herein, defendants conducted and operated a general department store and the business connected therewith at 186 North Commercial street in the city of Salem.

On the 15th day of September, 1930, plaintiff entered and walked about said store for the purpose of transacting business with defendants, whereupon plaintiff fell to the floor and suffered the injuries herein. Plaintiff claimed that the floor was oily and that a nail protruded therefrom upon which the heel of plaintiff's shoe caught, thus causing her to fall.

Three questions are presented: First, it is urged that plaintiff's counsel attempted to inject into the case the question of casualty insurance and the fact that defendants were protected by casualty insurance. Second, it is argued that there is absolutely no testimony whatever to the effect that defendants, or either of them, had any knowledge or notice that the floor was oily or that the nail projected above the floor. And third, it is contended that error was committed by the court in its instructions to the jury when reference was made to something which the court had said to the entire panel of jurors at the opening of the term.

The first of these three questions is presented by the first second, third, fourth, sixth, and seventh assignments of error.

The first assignment of error is based upon the action of the trial court in permitting plaintiff to testify, in answer to the question, whether a representative of defendants came to see her within a week after the accident, that a Mr. Shimmin came to see her.

The second assignment challenges the propriety of the court permitting the sister of plaintiff to answer the question whether a man named Shimmin came to the sister's home where plaintiff was staying, and asked plaintiff to try to get up and told her that she should get up. Her answer was to the effect that a man came there, but witness did not know his name. This assignment also discloses that plaintiff's attorney then asked said witness whether or not this man told plaintiff that she could get up and asked her to try and get up.

Plaintiff's counsel said: "It will be connected up, to show this man represented the defendants and that the defendants sent this man out there to have her make tests and tell her she could do certain things. I think it is admissible."

To this the court stated: "The question is whether it can be connected. The proper way would be to prove the agency, something of that kind first. If there was a failure of proof on the matter of agency the matter wouldn't be before the jury. Any representation from a stranger made to the plaintiff not in the presence of the defendants would not be binding on defendants, unless agency was shown."

The third assignment urges that error was committed by permitting plaintiff's sister to testify that about ten days or a couple of weeks after the accident, that witness returned to the store at the request of a party whom she did not know, and who came out to her house.

The fourth assignment alleges error in permitting plaintiff to call one of the attorneys for defendants and interrogate him as to whether Mr. Shimmin represented defendants by means of which interrogation it was elicited from defendants' attorney that Mr. Shimmin did not represent defendants.

The sixth assignment of error is based upon questions propounded to Mr. Simon Director, one of the defendants herein, as to whether said defendant had repeated all of a conversation between him and the husband of plaintiff when plaintiff's husband informed Mr. Director of plaintiff's injury, and whether said defendant had the help of any one else in investigating the circumstances of plaintiff's fall. It is also based upon the request of plaintiff's attorney that the matter of the admissibility of testimony on this phase of the case be heard in chambers out of the presence and hearing of the jury.

The seventh assignment imputes error upon the part of the court in not granting a motion that the jury be discharged from further consideration of the case because of the alleged misconduct of counsel for plaintiff in bringing before the jury the question of insurance by asking the witness, Simon Director, if it was not a fact that a representative of defendants called upon plaintiff; also by bringing into the case the name of Robert Shimmin and asking Mr. Director if he had not communicated with certain parties or some certain party regarding the accident; also whether he had made a report or whether he had signed any statements.

At the conclusion of plaintiff's testimony in chief, defendants moved that all testimony offered with relation to Mr. Shimmin that sought to be elicited on direct examination from plaintiff, plaintiff's sister, or the attorney for defendants, be stricken, and the jury instructed to disregard it. This motion was sustained, and the jury so instructed.

We are of the opinion that the attorneys for plaintiff did not willfully attempt to elicit the fact that defendants were protected by insurance. It is true that they made an ineffectual attempt to prove that Mr. Shimmin represented defendants. When they failed in this attempt, the court struck the testimony from the record and instructed the jury to disregard it.

We find no impropriety in hearing counsel in chambers upon the admissibility of testimony sought to be elicited, if, as in this case, both parties are present or represented.

The questions propounded to defendant Simon Director did not encroach upon the rule that a willful attempt to show that defendant is protected by casualty insurance should not be tolerated.

As stated, the second question to be determined is whether there is any evidence of notice or knowledge on defendants' part that the floor was unduly oily or that a nail projected from it.

Def...