Sears, Roebuck & Co. v. Tisdale, 43823

• Decision Date: 25 April 1966
• Docket Number: No. 43823,43823
• Citation: 185 So.2d 916
• Court: Mississippi Supreme Court
• Parties: SEARS, ROEBUCK & COMPANY, a Corporation and Lou Manners, v. Mrs. Lester TISDALE.

Page 916

185 So.2d 916

SEARS, ROEBUCK & COMPANY, a Corporation and Lou Manners, v. Mrs. Lester TISDALE.

No. 43823.

Supreme Court of Mississippi April 25, 1966.

David C. Welch, Laurel, for appellants.

Melvin, Melvin & Melvin, Laurel, for appellee.

ROBERTSON, Justice:

On November 4, 1963, Mrs. Lester Tisdale visited the Sears, Roebuck & Company Store in Laurel, Mississippi. She was accompanied by her youngest child, a six-year-old boy, and after purchasing clothing for her children, she went to the credit department located on the North side of the store building to make a payment on her account.

There were two entrances to the credit department, one on the West and the other on the South. She approached the credit department from the West entrance and after making a payment on her account, she turned to leave through the cased South entrance to the credit department. When she had proceeded about 10 feet from the counter where she had made payment, she stepped on a bright red gum ball with her right foot. The gum ball slid from under her foot and she fell on her left knee and hip. An ambulance was called by an employee of the defendant, and the plaintiff was taken to Boone Clinic where she was examined and treated by Dr. Ellis, a general practitioner. There were no broken or fractured bones, but there was some swelling and discoloration around the left knee.

She continued to suffer pain from the knee primarily, and after being examined by Dr. Holder, an orthopaedic surgeon, her trouble was diagnosed as bursitis, which in her case was an inflammation of the bursa under the left knee cap. She took pain relieving drugs from time to time and there were six injections into the bursa of the left knee over a period of six months. The doctor finally advised that the only way to relieve this condition would be to surgically remove the bursa. She had not had this operation at the time of the trial. Her doctors', hospital and drug bills, thus far, amounted to about $200.00. There was a jury verdict for $30,000.00, and the defendant appealed from this verdict and judgment.

Mrs. Tisdale was an invitee in the defendant's store. The store owner owed to invitees the duty of exercising ordinary or reasonable care to see that the portions of the store premises which may be expected to be used by invitees are reasonably safe. Hence, the proprietor is under the duty to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purposes of the invitation. Mississippi Winn-Dixie Supermarkets, Inc. v. Hughes, 247 Miss. 575, 156 So.2d 734 (1963).

Proof merely of the occurrence of a fall on a floor within business premises is insufficient to show negligence on the part of the proprietor. Proof that the floor on which the fall occurred had present thereon litter and debris is similarly insufficient; and the doctrine of res ipsa loquitur is inapplicable in cases of this kind. Annot., 61 A.L.R.2d 13 (1958).

The basis of liability is negligence and not injury. That the proprietor of a store or similar place of business is not an insurer of the safety of persons who come upon the business premises is a principle of the law of negligence so familiar and so well established as to obviate the necessity of citing supporting authority.

There was no proof whatsoever in this case that the gum ball on the floor was the result of an affirmative act of the store proprietor or any of his employees. So the rule of law as to negligence, which would apply in this case, is expressed by the Court in Mississippi Winn-Dixie Supermarkets, Inc. v. Hughes, 247 Miss. 575, 584, 156 So.2d 734, 736 (1963), in these words:

"* * * where it appears that a floor in a store or similar place of business has been made dangerous by litter or debris present thereon, and that the presence of the litter or debris is traceable to persons for whom the proprietor is not responsible, proof that the proprietor was negligent in relation to the floor condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that, in the exercise of reasonable care, he should have known of it.' Anno., 61 A.L.R.2d at 26; 2...