S. H. Kress & Co. v. Dyer

• Decision Date: 05 May 1932
• Docket Number: No. 1214.,1214.
• Citation: 49 S.W.2d 986
• Parties: S. H. KRESS & CO. v. DYER et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 986

49 S.W.2d 986

S. H. KRESS & CO. v. DYER et ux.^*

No. 1214.

Court of Civil Appeals of Texas. Waco.

May 5, 1932.

Rehearing Denied May 26, 1932.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Action by M. S. Dyer and wife against S. H. Kress & Co. Judgment for plaintiffs, and defendant appeals.

Affirmed.

C. E. Mason, of Waco, Boyd Porter, Jr., of Fort Worth (on the trial), and Jos. W. Hale and E. B. Burleson, both of Waco (on appeal), for appellant.

J. A. Stanford, Sr., and Tom M. Hamilton, both of Waco, for appellees.

GALLAGHER, C. J.

Appellees, M. S. Dyer and wife, Mrs. Amelia Dyer, instituted this suit to recover of appellant, S. H. Kress & Company, a corporation, damages for personal injuries alleged to have been sustained by Mrs. Dyer as the result of negligence on the part of appellant. Appellant was, on the 23d day of July, 1930, engaged in the mercantile business in the city of Waco and maintained a storehouse situated on Austin avenue, where it sold goods, wares, and merchandise at retail to its customers. Mrs. Dyer, on the date aforesaid, entered appellant's store for the purpose of making certain purchases. While so engaged she slipped and fell upon the floor and sustained personal injuries. Appellees alleged that the floors of appellant's store had been recently covered with some kind of oil or grease; that by reason thereof the same were slick, slippery, and dangerous, and that such condition caused such fall. Appellant specially denied that its floors were slick, slippery, or dangerous, and alleged that, if such condition existed at the time Mrs. Dyer fell, the same was unknown to it and could not have been discovered by it by the exercise of ordinary care. Appellant, by a trial amendment, expressly denied that there was any oil or grease on the floor where Mrs. Dyer fell, and further alleged that, if such substances were on the floor at that time, they were placed there without its authority and by some person or persons to it unknown, and that it could not by the exercise of ordinary care and diligence have discovered the presence thereof on such floor prior to such fall.

The case was submitted on special issues, in response to which the jury found, in substance, that:

(a) Mrs. Dyer, on the date alleged, entered appellant's store for the purpose of making a purchase. The floor thereof was slick and slippery, which condition caused her to fall. Appellant was negligent in permitting its floor to be in such condition, and such negligence was the proximate cause of the injuries suffered by her. She sustained damages as the direct and proximate result of such negligence in the sum of $3,800.

(b) Appellant failed to exercise ordinary care in the maintenance of its floor at that time, and it knew, or could by the exercise of ordinary care have known, that its floor was in such condition.

(c) Mrs. Dyer could not have avoided such fall by the exercise of ordinary care and diligence and her injuries were neither proximately caused nor contributed to by any failure on her part to exercise such care.

The court rendered judgment on the verdict and findings of the jury in favor of appellees against appellant for the sum of $3,800, with interest from date and costs of suit. Appellant presented a motion for new trial, which was heard and overruled.

Opinion.

Appellant presents assignments of error in which it contends that the court erred in refusing its request for a peremptory instruction, and in which it assails the jury's finding of negligence on its part, on the ground that such finding is without support in the evidence or against the great weight and preponderance thereof. The gist of such contention is that no specific act of negligence on its part was proved, and that the testimony of its employees conclusively refutes any such charge. The testimony introduced by appellee shows that, while Mrs. Dyer was passing from one counter to another in appellant's store, her left foot slipped out from under her and she fell prone upon the floor; that appellant's employees assisted her to arise; that she then looked at the floor and saw a big oil spot where she had fallen. The dress she wore at the time was produced and identified. It showed grease spots on shoulder and skirt. The testimony showed without dispute that appellant made periodical applications of oil to said floor. Appellee introduced testimony that such applications were made once or twice a week; that after such applications it was apparent that the oil had been irregularly applied, more showing at some places than at others. Appellee also introduced testimony showing that said floor at the time of the accident, and for some time prior thereto, was always well oiled, and that as a result thereof it was coated with grease and oil and thereby rendered slick and slippery. The testimony as to the overoiled, slick, and slippery condition of such floor was given by three separate and apparently disinterested witnesses. One of appellees' witnesses was permitted to testify without objection that she herself had slipped and fallen on said floor and had been told by appellant's employees at the time that the oil thereon had been put there by it. Appellant, to rebut said testimony, introduced the testimony of its assistant manager, whose duty it was to supervise the application of oil to said floor. He testified that oil was applied to the floor every two weeks, and that the last application was about ten days prior to Mrs. Dyer's fall; that oil was applied by a mechanical device which distributed it regularly, and that an accumulation of oil at any one place was impossible. He also testified that such applications were made at night and that, before opening the store after the same, a careful inspection of the floor was made, and, if any "foreign matter" was found, it received an appropriate treatment of feldspar to prevent any possibility of accident. Said testimony was corroborated in substance by appellant's colored porter, whose duty it was to operate the device which applied the oil. Both appellant's assistant manager and its young lady employee who assisted Mrs. Dyer to her feet testified that there was no oil where she fell, or any condition of the floor which could have caused her to slip and fall.

Appellant owed Mrs. Dyer, a customer in its store, upon implied invitation to inspect and purchase its wares, the duty to maintain the floor thereof in a reasonably safe condition for walking to and fro thereon. Any dangerous condition of such floor arising from the manner in which it was maintained by appellant or its employees to whom such maintenance was intrusted was a breach by it of such duty. Blake v. Great Atlantic & Pacific Tea Co., 266 Mass. 12, 164 N. E. 486; Judson v. American Ry. Express Co., 242 Mass. 269, 136 N. E. 103; John Gerber Co. v. Smith, 150 Tenn. 255, 263 S. W. 974; Tack v. Ruffo, 263 Mass. 487, 161 N. E. 587; Blease v. Webber, 232 Mass. 165, 122 N. E. 192; Mattox v. Lambright, 31 Ga. App. 441, 120 S. E. 685; Scott v. Kline's, Inc. (Mo. App.) 284 S. W. 831, and authorities there cited; F. W. Woolworth Co. v. Wood, 32 Ga. App. 575, 124 S. E. 110; Langley v. F. W. Woolworth Co., 47 R. I. 165, 131 A. 194; Markman v. Fred P. Bell Stores Co., 285 Pa. 378, 132 A. 178, 43 A. L. R. 862. Appellees' testimony hereinbefore stated raised an issue of negligence on the part of appellant in permitting its floor to be slick and slippery as the result of improper oiling by its employees at the time Mrs. Dyer fell thereon and for some time prior thereto. The jury not only found that appellant failed to exercise ordinary care in the maintenance of its floor at the time of her fall, and negligently permitted the same to become slick and slippery, but further found that appellant knew, or by the exercise of ordinary care ought to have known, that it was in such condition. Appellant relies, in support of its contention, on the case of Great Atlantic & Pacific Tea Co. v. Logan (Tex. Civ. App.) 33 S.W.(2d) 470, and the authorities therein cited. In that case the tea company maintained a retail store. Mrs. Logan, one of its customers, in passing through the same, stepped on a banana peel, slipped, fell, and was injured. There was no testimony in that case that said company or any of its employees were responsible for the presence of the banana peel at the place where Mrs. Logan stepped upon it, nor that the same lay in that position for such length of time that the company or its employees in the exercise of ordinary care ought to have discovered and removed it. There being no testimony showing that the dangerous condition was created by appellant or its employees, or that they knew or ought to have known of such condition, the court properly held that negligence on the part of the tea company had not been shown. Appellant, by its trial amendment, pleaded a similar issue in this case and sought to sustain the same by the testimony of certain of its employees, but failed to request that such issue be submitted to the jury for determination. It therefore waived the same. The court did not err in refusing appellant's request for a peremptory instruction, and the jury's finding of negligence on its part in the maintenance of its floor is amply sustained by the evidence.

Appellant presents assignments of error in which it contends that the court erred in not, at its request, discharging the jury, and entering an order declaring a mistrial because its witness, Dr. Collins, stated in his testimony on cross-examination that he sent a report of the result of his examination of Mrs. Dyer to the Maryland Casualty Company, and in overruling its motion for new trial so far as the same was based on such ground. The clerk's transcript contains no written motion for the discharge of the jury and the entry of an order of mistrial and no order or judgment of the court denying the same. Neither does it contain any bill of...