Russell v. Liggett Drug Co.

• Decision Date: 13 June 1941
• Docket Number: No. 13031.,13031.
• Citation: 153 S.W.2d 231
• Parties: RUSSELL v. LIGGETT DRUG CO., Inc., et al.
• Court: Texas Court of Appeals

153 S.W.2d 231

RUSSELL v. LIGGETT DRUG CO., Inc., et al.

No. 13031.

Court of Civil Appeals of Texas. Dallas.

June 13, 1941.

Rehearing Denied July 4, 1941.

Appeal from District Court, Dallas County; Dick Dixon, Judge.

Suit for damages by Mrs. Genevieve Russell, administratrix of the estate of Mrs. Mary R. Moore, deceased, against the Liggett Drug Company, Incorporated, and others, for the death of plaintiff's decedent, resulting from injuries sustained in a fall on the allegedly slippery floor of a beauty shop, located in a building owned by the named defendant and leased to a third party. From an adverse judgment, rendered upon peremptory instructions, plaintiff appeals.

Affirmed.

White & Yarborough, of Dallas, for appellant.

W. B. Handley, of Dallas, for appellees.

YOUNG, Justice.

Suit for damages was prosecuted by Mrs. Genevieve Russell, administratrix of the estate of Mrs. Mary R. Moore, deceased, for the latter's death, following injuries allegedly sustained by falling on the slippery floor of a beauty shop under lease from appellees to a third party. At the conclusion of plaintiff's case, defendants, before offering testimony, moved for instructed verdict, which was sustained. A judgment against plaintiff, rendered upon peremptory instruction to the jury, is the basis of this appeal.

The accident occurred on September 8, 1937; the rented space, known as 401-402 Liggett Building, having been engaged from month to month as a beauty parlor by Mrs. E. L. Moore, a daughter-in-law of deceased. The premises were first occupied on September 5, 1937, but before that, Mrs. Moore, the lessee, had required defendant, Liggett Drug Company, Inc., through its building manager, to clean, polish and wax the floors of both rooms. The janitor service provided by the Drug Company was a daily clean-up of its floors after office hours. The shop equipment was distributed through the entire quarters, entrance thereto being by room 402 only. The elder Mrs. Moore (deceased) had been to the shop the preceding day for a "shampoo and set," remaining an hour or two; at the same time, looking over some materials and a chair she planned to reupholster. On this trip, she necessarily walked across the floors of both rooms; which floors were of wood, and apparently in the same condition as to polish and smoothness. On the occasion of her fall, Mrs. Moore had come in by the usual entrance, going into room 401 where she was occupied until possibly two o'clock with her repair work. There was testimony that about such time, she had an arrangement to meet her son (E. L. Moore) down on the street in an automobile, and be driven home. The deceased then left the shop by the aforesaid exit and went to the elevator, where, having forgotten something, she returned to a supply cabinet in room 402, and turning again to go out, she fell. Certain injuries resulted, from the effects of which Mrs. Moore continued to suffer until her death in November, 1938.

Appellant's main complaint was in the alleged failure of defendant to have the floor of the leased premises in reasonably safe condition for use by customers and invitees such as deceased; in that, grease, wax and oil had been placed thereon, rendering it slick, slippery, and dangerous to walk upon; which condition was well known to defendant, but not to the injured party; of failure to inspect the floor, or to warn deceased of aforesaid defects and dangers.

It was further contended that appellant's prima facie case raised issues of fact concerning the slippery condition of said floor, which had been mopped and oiled the night before by defendant's employes; that, as a matter of law, deceased was in the exercise of ordinary care when she fell, but, nevertheless, her fatal injuries proximately followed; and the court erred in taking such issues from the jury in the peremptory instructions given.

Turning again to the evidence, and viewing same most favorably toward the party adversely affected by the court's ruling, we find from testimony of the younger Mrs. Moore (lessee and shop owner) that she had requested the floors of said suite to be cleaned, varnished and waxed prior to her moving in; that the consequent work thereon by defendant's manager was satisfactory to her, all floors being put in the same condition and so maintained, except for regular janitor service. On this point she testified:

"Q. The condition of these floors at the time you moved in there, whatever it may have been, did it remain the same during the time you continued to occupy the premises? A. All the floors were the same except in the front room and I now have a rug on it.

"Q. Well, you said they were polished and cleaned up and taken care of. Did the floors remain the same from the time you moved into the premises until after Mrs. Moore fell, that is, your mother-in-law? A. Yes.

"Q. There had not been any change in the condition of the floors? A. No.

"Q. There had been nothing done to them, then, to change their condition, that is, the surface of them? A. Not that I know of, unless at night they would wipe them up. I am not sure when they cleaned them up in the evening, but otherwise they were the same. * * *

"Q. Now, state what are the facts in reference to whether or not that floor was slick on September 8, 1937? A. It was a waxed...