Safeway Stores Inc. v. Bozeman, 128

• Decision Date: 16 September 1965
• Docket Number: No. 128,128
• Citation: 394 S.W.2d 532
• Parties: SAFEWAY STORES INCORPORATED, Appellant, v. Sam BOZEMAN, Appellee.
• Court: Texas Court of Appeals

Page 532

394 S.W.2d 532

SAFEWAY STORES INCORPORATED, Appellant, v. Sam BOZEMAN, Appellee.

No. 128.

Court of Civil Appeals of Texas, Tyler.

Sept. 16, 1965.

Rehearing Denied Oct. 14, 1965.

Herbert Boyland, Kenley & Boyland, Longview, for appellant.

Rex Houston, Wellborn & Houston, Henderson, for appellee.

MOORE, Justice.

Appellee Sam Bozeman brought this suit for damages against Safeway Stores Incorporated and Rudolph Wallesch, its store manager, for injuries sustained by his wife, Juliette Bozeman, when she slipped and fell in Safeway's grocery store located in Henderson, Texas on the 4th day of January, 1961. Trial to a jury resulted in a verdict for appellee for $15,650.00. The court rendered judgment against Safeway and dismissed Rudolph Wallesch from the suit. From the judgment entered against it, Safeway Stores Incorporated has perfected this appeal.

In response to the special issues submitted by the court, the jury found that at the time Mrs. Bozeman entered the store, she was an invitee; that at the place where she slipped and fell, there was an oil and wax substance upon the floor; that such oil and wax substance created a slick place on the floor; that such oil and wax substance was placed on the floor by Safeway's employees in waxing and buffing the floor; that such substance had been on the floor for a sufficient period of time that Safeway Stores and its employees, in the exercise of ordinary care, should have known of same; Safeway and its employees failed to remove the oily and waxy substance from the floor prior to the time Mrs. Bozeman slipped and fell; that such failure was negligence and a proximate cause of her injuries; that Safeway and its employees failed to properly inspect the floor at the point where Mrs. Bozeman fell and that such failure was a proximate cause of her injuries; that Safeway and its employees failed to warn Mrs. Bozeman of the presence of the oil and wax substance and that such failure was negligence and a proximate cause of her injuries. The jury assessed damages in the amount of $15,000.00 for personal injuries and $650.00 medical expenses. The jury further found that the condition of the floor was not open and obvious, and that she did not voluntarily expose herself to the danger, nor fail to keep a proper lookout.

Appellant made a motion for judgment notwithstanding the verdict and a motion for new trial, each of which was overruled by the trial court, and thereafter perfected this appeal assigning 25 points of error. The points of error pose four basic questions, which are grouped and briefed as follows: (1) lack of evidence showing negligence on the part of appellant; (2) error of the court in receiving evidence that others had fallen in the store; (3) lack of evidence showing duty; and (4) error of the trial court in instructing the jury that they could consider the value of diminished earning capacity of Mrs. Bozeman in awarding damages and as a result the damages were excessive.

The evidence shows that the floor of the appellant's store was constructed of either inlaid or asphalt linoleum. Traditionally, it had been the practice of the employees of the store to clean the floor each Saturday night after the store had been closed. In the process of cleaning the floor, it first was scrubbed with water and detergents, following which the employees used a machine to scrubb off any accumulations of old wax and dirt. After this had been completed, a solution of wax and water was applied by the use of a mop. The amount of water used in the solution determined the amount of wax applied to the floor and whether the wax would cake upon the floor so that it would be slick. After the application of the wax and water, the floor was then allowed to dry over Saturday night and Sunday and on the following Monday morning, the floor was buffed in order to make a high gloss. This same procedure was followed on the Saturday night preceding Mrs. Bozeman's injury; however, on this particular occasion the store remained closed on the following Monday (January 2nd) because of the New Year holiday. Tuesday, January 3rd, was the first day the store had been open for business after the application of the wax on the previous Saturday night. The employees who regularly did the buffing were off duty when the store opened on Tuesday and Mr. Wallesch and his assistant buffed the floor. On the remaining days of the week, it was the practice to apply a sweeping compound containing a light oil base and then to sweep the floor with a broom or mop after which it was buffed. The same procedure was followed on Wednesday morning, January 4th, prior to Mrs. Bozeman's fall.

Mrs. Bozeman, who was 60 years of age, testified that on the day of her fall she had entered the store for the purpose of purchasing groceries. According to her testimony, she had been a frequent visitor in the store and had never had any previous trouble in walking on the floor, and on the occasion of this visit noticed nothing out of the ordinary.

Upon entering the store she testified that she was walking in a normal manner, wearing leather shoes with a three-fourth-inch heel. After she had walked a distance of approximately six to eight feet, she said she felt her left foot suddenly slip forward on something which was very slick, causing her to fall to the floor with great force, with the weight of her body falling upon her right leg and ankle and that she immediately suffered severe pain in her right leg, ankle and hips. She further testified that neither before nor after she fell did she notice any debris or any other type of foreign object upon the floor, nor could she detect any dampness; however, she said that she felt of the floor at the place of her fall and it was 'slick as glass.' After she had fallen, Mr. Wallesch, the store manager, came to her aid and after a brief discussion with her he summoned an ambulance and she was immediately confined to the hospital.

In addition to verifying the facts set forth hereinabove relating to the manner of maintenance of the floor, Mr. Wallesch testified that he went to Mrs. Bozeman immediately after she had fallen and found her on the floor in a sitting position. Her hose were torn and her ankle was skinned and bleeding. After a brief conversation with her, he directed one of the employees to call an ambulance. He testified that he made an inspection of the floor, but failed to find any debris or any other foreign object on the floor which could have caused her to fall; however, he testified that he did find a 14-to 16-inch skid mark on the floor where her shoe had slipped. The skid mark, he testified, went through the wax and oil on the floor. On being questioned with regard to the slippery quality of the material which had been applied to the floor, he testified that if the floor sweeping compound containing the oil base was applied upon the waxed floor in excessive amounts, it would cause the floor to be slick and he also testified that if an excessive amount of wax was placed in the wax-water solution used in waxing the floor it would cause the wax to cake and thus cause a slick place on the floor. Over the objection of the appellant, he was permitted to testify that on two previous occasions he himself had slipped and fallen upon the floor and that he had also received reports of others who had fallen in the store, although not at the same place Mrs. Bozeman fell.

Mr. Bozeman testified that immediately after Mrs. Bozeman had fallen in the store the store manager called him and advised him that she had been injured in a fall in the store and had been sent to the hospital in an ambulance; that upon receipt of this information he immediately went to the hospital where he found her in the emergency room, and while there he observed her left shoe and found an oily, slick substance on the sole and heel; that upon examining the substance with his hands, it was slick and it appeared to be a dirty brown kind of wax.

Appellee produced medical testimony showing that as a result of the fall Mrs. Bozeman received a fractured distal of the lower one-third of the right fibula or the small bone which goes into the ankle. As a result of the fracture, it was necessary that her foot and leg be placed in a cast for a period of six weeks. She also received a contusion or a sprain of the right ankle joint, knee and hip, all of which injuries required her to be confined in the hospital for a period of approximately thirty days. Her physician testified that as a result of her injuries she had developed a traumatic arthritic type of condition which had caused partial disability and that it was his opinion that such condition was chronic and would be of long standing.

It is without dispute that at the time Mrs. Bozeman fell, she was an invitee on the premises. It is also without dispute that the appellant's employees regularly applied a solution of wax and water upon the floor each Saturday night, and that on the following business days they regularly applied a sweeping compound containing a light oil base before buffing the floor. Appellant denies, however, that the application of wax and sweeping compound was improperly applied or...