S. H. Kress & Co. v. Selph, 4738

• Decision Date: 01 May 1952
• Docket Number: No. 4738,4738
• Citation: 250 S.W.2d 883
• Parties: S. H. KRESS & CO. et al. v. SELPH et ux.
• Court: Texas Court of Appeals

Page 883

250 S.W.2d 883

S. H. KRESS & CO. et al. v. SELPH et ux.

No. 4738.

Court of Civil Appeals of Texas, Beaumont.

May 1, 1952.

Rehearing Denied July 9, 1952.

Marcus & Weller, Beaumont, for appellant.

Adams, Browne & Sample, Beaumont, for appellee.

WALKER, Justice.

Statement

This action is for damages for personal injuries sustained by Mrs. Ida Selph, one of the appellees, when she fell upon the floor of the store operated by S. H. Kress & Company, located in Beaumont, Texas. The plaintiffs are Mr. and Mrs. Selph and the defendants are S. H. Kress & Company and the manager of the store, H. H. Howe.

It is unnecessary to describe the parties' pleadings at this point. The cause was tried to a jury and in response to Special Issues the jury returned the following verdict: (Issue 1) Mrs. Selph slipped and fell in defendants' store on or about June 14, 1947. (Issue 2) Mrs. Selph slipped on a piece of candy in defendants' store. (Issue 3) When Mrs. Selph slipped and fell she sustained an injury to her body. (Issue 4) Said piece of candy 'had been on the floor for a sufficient length of time for defendants' agents, servants and employees in the exercise of ordinary care to have discovered and removed same.' (Issue 5) The 'failure-of defendants, their agents, servants and employees, to remove said piece of candy-prior to Ida Selph's fall-was a proximate cause' of Mrs. Selph's injuries. (Issue 6) Mrs. Selph 'did not fail,' prior to her fall, to keep a proper lookout as she proceeded out of the store. (Issues 7 and 8) These issues were conditioned upon an affirmative answer to Issue 6 and were unanswered. (Issue 8-A) 'It was not the result of an unavoidable accident.' (Issue 9) Plaintiffs' damages were assessed at $8,500.

On this verdict the trial court rendered judgment in behalf of the plaintiffs against the two defendants for $8,500 and the defendants have appealed from this judgment.

Opinion

Points 1, 2, 3, 4, 17, 24, and 25 assign error to the sufficiency of the evidence, either in law or in fact, to support the finding under Issue 4 that the candy which caused Mrs. Selph to fall had been on the floor of Kress' store long enough to have been discovered and removed had the defendants used proper care to make the floor reasonably safe for Kress' customers.

The jury could have answered this Special Issue favorably to the defendants but they did not, and we have, therefore, to consider only evidence which supports the finding made. This evidence may be summarized as follows:

On Saturday morning, June 14, 1947, at about 11 o'clock, Mrs. Ida Selph entered Kress' store to buy a balloon for her niece, a child about five years old, who accompanied her. The counter where balloons were sold abutted on the aisle which extended along the front of the counter where candy was sold. Mrs. Selph walked along the right hand side of this aisle to the balloon counter and made her purchase. She then walked back along the opposite side of this aisle toward the door, and at a place in front of the candy counter stepped upon a piece of candy with her right foot, and her foot slipped on the candy, and she fell to the floor.

She was assisted to her feet by a person nearby, and reported the incident immediately to the assistant manager of the store. According to Mrs. Selph, this person manifested no interest in what she had to say and after waiting a moment she left the store.

Mrs. Selph described the candy and the place where she fell as follows:

'Well, it was candy. There was quite a bit of it on the floor and it had been mashed and swept over; looked like it had been there for several days. * * *

'Q. How could you tell it had been swept over? A. Well, I have seen things like that on floors before.

'Q. Did it have the marks of a broom over it. A. Yes, sir. * * *

'Q. What color was it? A. Well, it was brown, dirty and looked like chocolate candy. * * * Well, on the floor it looked like chocolate candy mashed on the floor but-the piece I slipped on, where my heel went through, there was some left on the side, and I looked to see what I slipped on, and so I looked on my shoe and pulled some off my shoe, and it was sticky like, a white substance underneath.

'Q. Was that the same substance that had the mark on the floor where you slipped? A. Yes, sir.'

On cross-examination she gave some testimony to the same effect and testified also that she saw some other candy there. Thus: 'I looked at it to see what I had slipped on; and then I began to see the other spots and pieces that were mashed on the floor.' And further: the piece she slipped on 'evidently was softer than the appearance of the other. * * * The other looked more packed down than this place where I had slipped.

'Q. Actually you do not know whether that piece of candy had been stepped on before you stepped on it or not, do you? A. Well, yes, you can tell, because it was stuck there on the floor and looked similar to the other pieces that was packed down on the floor.

'Q. That was after you stepped on it wasn't it? A. Yes. Well, I didn't step on the part that was left, because my heel hit and slipped.'

Subsequently: 'Q. And after you got up did you inspect that particular area of the floor? A. I looked down at it and before I got up the first time I saw it was all over the floor and I saw the condition of whatever it was, had been stepped on and swept over.'

Further: 'Q. These other substances, I believe you say that you saw on the floor, they were of a different character, weren't they? A. Well, I suppose that they were of about the same; they looked like the spot that I had stepped on. I thought it was probably the same thing.'

Mrs. Selph was 54 years old at the time of this occurrence. She was then a housewife.

She testified: 'Q. * * * in that period of time I suppose you have had lots of occasion to observe objects on the floor and sweep over them yourself? A. I certainly have, for I have worked at different places practically all my life. For the last few years my husband made me quit work.' The aisle was paved with terrazzo. The surface was hard and smooth. In color it was light, but had brown spots in it.

The store was large, being 180 feet long by 50 feet wide.

Saturday was the busiest day of the week at this store. Mrs. Selph testified that 'there were quite a few people in the store,' and further, 'there was quite a crowd in the store that morning and all the school children were gathered around the balloon counter.' On Saturday, four clerks served the candy counter. Only two clerks worked there on other days. This counter seems to have been between 30 and 40 feet long, and three cash registers were placed on it for the use of the clerks working there. The photographs in evidence show the top of the counter covered with packages and bags of candy, and this was the practice when Mrs. Selph fell.

There was evidence that from time to time candy was found in the aisle before this counter. For instance, the porter testified: '* * * Beginning Monday night through Saturday night that floor is mopped and if there is any candy on the floor we have got a putty knife we carry in our pocket and scrape every piece of candy off. Very little accumulates there, because that is done all through the day-not just at night; it is done through the day.' There was other evidence to the same effect and Watts, who had supervision of this area of the store when Mrs. Selph fell testified: 'Q. Do you all sell candy down there, brown candy and black candy, pink candy, white candy, different colors? A. Well, various colors, yes, air.'

There was much evidence concerning Kress' method of keeping the floor clean, and this evidence bears directly on the matter at issue.

The entire personnel of the store were instructed to watch for substances on the floor and to remove what they found or to have it removed. The defendant Howe, manager of the store, seems to have spent most of the day walking about over the store, and he endeavored to comply with these instructions. The assistant manager, Graham, supervised the back part of the store, and Watts, referred to as a 'learner', supervised the front part of the store, where the candy counter was, and these two men constantly walked about the areas assigned to them. It was one of their duties to observe the condition of the floor, and Mr. Watts testified that he would pass by the candy counter at intervals 'of between 10 or 15 minutes, according to how much husiness, how many people were in the store.' Subordinate employees who supervised the activities of the sales clerks were stationed in the area and also had the same duty. It was also the business of the sales clerks to do this when they could, and the clerk in charge of the candy counter said she was often in the aisle before the counter.

Finally, there was the porter. On Friday night this employee swept and mopped the candy aisle and after he did so his work was inspected by the assistant manager and again the next morning by Mr. Howe, the manager, when he opened the store. According to the evidence the aisle must have been clean when the store opened on the Saturday morning when Mrs. Selph fell. Before 9 o'clock the porter had other duties to perform, but at 9 o'clock in the morning the porter began to patrol the floor of the store with a broom and a dust pan looking for things on the floor. He also carried a putty knife with which he could remove substances which the broom would not remove. He went backward and forward between the front and back of the store, requiring some 30 to 45 minutes to go to the back and then return to the front, and Graham, the assistant manager, said that by the time Mrs. Selph fell the porter would have swept the area about the candy aisle three or four times. This routine was interrupted by the porter's lunch hour, which began at one P.M., and was interrupted once during the morning when the porter emptied the contents of the waste baskets...