Stevens v. Mirakian

• Decision Date: 13 January 1941
• Docket Number: Record No. 2296.
• Parties: LOIS STEVENS v. PAUL MIRAKIAN.
• Court: Virginia Supreme Court

Page 123

177 Va. 123

LOIS STEVENS v. PAUL MIRAKIAN.

Record No. 2296.

Supreme Court of Virginia, Richmond.

January 13, 1941.

Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. APPEAL AND ERROR — Scope of Review — Matters Not Presented to Trial Court. — The Supreme Court of Appeals does not consider matters which are not presented in the pleadings or involved in the issues of the case in the trial court. New contentions first appearing in the petition for appeal are beyond the court's review of the case.

2. MASTER AND SERVANT — Appeal and Error — Scope of Review — Contention Made for First Time on Appeal — Case at Bar. — In the instant case, an action by a servant to recover from the master for personal injuries alleged to have been sustained in a fall from a defective chair, liability was originally predicated upon the negligence of defendant in failing to exercise reasonable care to furnish a reasonably safe chair on which plaintiff could sit. In the Supreme Court of Appeals plaintiff, for the first time, relied upon section 1807 of the Code of 1936, making it a misdemeanor for an employer to fail to provide for female employees in certain establishments chairs, stools or other suitable seats, as creating a "statutory duty" requiring defendant to provide safe chairs for his employees at all events, regardless of the law of negligence.

Held: That this contention would not be considered by the Supreme Court of Appeals.

3. JUDICIAL NOTICE — Statutes — Appellate Court. — The Supreme Court of Appeals will not take judicial notice of a statute invoked there for the first time. It is required to take judicial notice only of statutes relied on in the trial court.

4. MASTER AND SERVANT — Duty to Provide Safe Appliances — Master Required to Exercise Ordinary Care. — The master must use ordinary care in supplying and maintaining suitable and safe instrumentalities for the performance of the work by the servant. But the obligation extends no further than to exercise ordinary care.

5. MASTER AND SERVANT — Duty to Provide Safe Appliances — Master Is Not a Guarantor or Warrantor. — An employer is not the guarantor of the employee's safety, and hence he is not bound, at his peril, to provide only the best and safest instrumentalities, and to use the best methods for their operation, nor does he impliedly warrant the fitness and soundness of his machinery and appliances.

6. MASTER AND SERVANT — Duty to Provide Safe Appliances — What Servant Required to Show to Entitle Him to Recover. — A servant must use ordinary care to avoid injuries to himself, and to entitle him to recover for defects in the appliances of the business, he is, ordinarily, required to show: First, that the appliance in question was defective; secondly, that the employer knew, or ought to have known, of the defect; and, thirdly, that the employee did not know of it, and that the injury complained of resulted in spite of ordinary care on his part.

7. MASTER AND SERVANT — Duty to Provide Safe Appliances — Burden of Proof on Servant. — In an action by a servant against a master on the ground of the master's failure to provide safe instrumentalities, the burden is on the servant to show that the injury did not arise from an obvious defect in the instrumentalities of the business, or from a hazard incident to the business, but from a cause which strips the servant's act of the imputation of negligence, and overcomes the presumption that he voluntarily took the risk upon himself.

8. MASTER AND SERVANT — Duty to Provide Safe Appliances — Necessity that Master Have Knowledge of Defect — Case at Bar. — In the instant case, an action by a servant to recover from the master for personal injuries alleged to have been sustained in a fall from a defective chair, liability was predicated upon the negligence of defendant in failing to exercise reasonable care to furnish a reasonably safe chair on which plaintiff could sit. The evidence for plaintiff, a waitress, was that after she had worked steadily for several hours, she decided to rest and attempted to sit in a chair which was located towards the rear of the restaurant in a place that was not well lighted. When she sat in the chair it gave away, due to the fact that it had only three legs, and plaintiff was thrown to the floor and injured.

Held: That unless defendant knew or by the exercise of ordinary care should have known of the defective condition of the chair, there could be no recovery against him.

9. HEARSAY EVIDENCE — Admissibility — Generally Inadmissible. — Generally, hearsay evidence is not admissible.

10. HEARSAY EVIDENCE — Admissibility — Reason for Exclusion. — The basis for the exclusion of hearsay testimony is that it is not subject to the tests which can ordinarily be applied for the ascertainment of the truth of testimony.

11. HEARSAY EVIDENCE — Admissibility — Consideration of Testimony Admitted without Objection. — The general rule is that hearsay testimony admitted without objection may properly be considered and given its natural probative effect.

12. MASTER AND SERVANT — Hearsay Evidence — To Show Master's Knowledge of Defective Appliance — Case at Bar. — In the instant case, an action by a servant to recover from the master for personal injuries sustained when plaintiff sat in a defective chair which gave away and threw her to the floor, plaintiff, to establish the fact of defendant's knowledge of the defect, relied upon hearsay evidence which was admitted without objection from defendant. Plaintiff testified that another employee, who helped her up after the fall, stated that she had told the employer that the chair should have been thrown out and that somebody was going to get hurt in it. The employee who supposedly made the statement, when called as a witness, denied having made it.

Held: That the hearsay statement was evidence to go to the jury, its weight was also for the jury and upon this testimony the jury could have found that defendant knew of the defective condition of the chair.

13. MASTER AND SERVANT — Sufficiency of Evidence — To Warrant Recovery for Injuries Sustained because of Defective Chair — Case at Bar. — In the instant case, an action by a servant to recover from the master for personal injuries sustained when a defective chair on which plaintiff attempted to sit gave away and threw her to the floor, the evidence for plaintiff, a waitress, showed that after working steadily for several hours, she decided to rest and attempted to sit in the chair, which was located towards the rear of the restaurant in a place that was not well lighted. The chair had only three legs when it should have had four and this defect caused plaintiff to fall. Plaintiff testified, without objection from defendant, that another employee, who helped her up after the fall, said that she had told the employer that the chair should have been thrown out and that somebody was going to get hurt in it. The trial court set aside a verdict for plaintiff on the ground that it was not supported by the evidence and entered judgment for defendant.

Held: That when the hearsay testimony was considered along with the evidence as a whole, it was sufficient to sustain the verdict, and the trial court was in error in setting the verdict aside for insufficiency of evidence and entering final judgment for defendant.

14. MASTER AND SERVANT — Setting Aside Verdict — Entering Final Judgment Instead of Awarding New Trial Where Jury Misdirected — Case at Bar. — In the instant case, an action by a servant to recover from the master for personal injuries sustained when a defective chair on which plaintiff attempted to sit gave away and threw her to the floor, the evidence for plaintiff, a waitress, showed that after working steadily for several hours, she decided to rest and attempted to sit in the chair, which was located towards the rear of the restaurant in a place that was not well lighted. The chair had only three legs when it should have had four and this defect caused plaintiff to fall. Plaintiff testified, without objection from defendant, that another employee, who helped her up after the fall, said that she had told the employer that the chair should have been thrown out and that somebody was going to get hurt in it. The trial court set aside a verdict for plaintiff on the ground that it was not supported by the evidence and entered judgment for defendant.

Held: That the trial court was in error in entering final judgment for defendant. The verdict was correctly set aside, not for lack of evidence to sustain it, but for misdirection of the jury, and therefore the trial court should have awarded a new trial after setting the verdict aside.

15. MASTER AND SERVANT — Instructions — Instruction Making Master Insurer of Servant against Injury — Case at Bar. — In the instant case, an action by a servant to recover from the master for personal injuries sustained in a fall from a defective chair, an instruction given at the request of plaintiff told the jury that if they believed from the evidence that plaintiff was employed by defendant as a waitress and that during a lull period in the business plaintiff sought rest upon a chair, whereupon the chair, due to its defective condition, fell, throwing her and causing the injuries shown by the evidence, while exercising ordinary care on her part, then the verdict of the jury must be for plaintiff.

Held: That the instruction was erroneous because it authorized a recovery for plaintiff even though defendant were not negligent. It rendered defendant an insurer of plaintiff against any injury by reason of the use of the chair, if it was defective and plaintiff fell from it without fault on her part.

16. INSTRUCTIONS — Finding Instruction — Partial View of Case. — A finding instruction which considers a partial view of the case is erroneous and is reversible error.

17. MASTER AND SERVANT — Instructions — Conflicting Instructions — Case...