Stillwell v. Winn-Dixie Hill, Inc.

• Decision Date: 09 November 1962
• Docket Number: No. 5655,WINN-DIXIE,5655
• Citation: 146 So.2d 707
• Parties: Malger M. STILLWELL and Mrs. Marie Stillwell v.HILL, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 707

146 So.2d 707

Malger M. STILLWELL and Mrs. Marie Stillwell v. WINN-DIXIE HILL, INC., et al.

No. 5655.

Court of Appeal of Louisiana, First Circuit.

Nov. 9, 1962.

Henry N. Richardson, Bogalusa, for appellants.

Christovich & Kearney, by W. K. Christovich, New Orleans, for appellees.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

REID, Judge.

This action is before this court on an appeal taken by the plaintiffs from a judgment of the Lower Court dismissing their suit.

Plaintiff, Mrs. Marie Stillwell in her petition alleges while shopping in a grocery store operated by Winn-Dixie Louisiana, Inc., in the City of Bogalusa, Louisiana on October 8, 1960, she removed a bottle of bleach from a shelf in the store; that as she stepped forward she was suddenly and violently thrown to the floor which fall was caused by acts of negligence on the part of the defendant, Winn-Dixie Louisiana, Inc., or its agents and employees in failing to remove leaves from vegetables dropped on the floor or by allowing grease or some other similar substance upon the floor of the premises so as to make the floor slick and cause a person to slip and fall. In their petition the plaintiffs also pleaded the doctrine of Res Ipsa Loquitur predicated on the basis defendant had the sole exclusive care and control of the building including the floor where Mrs. Stillwell fell and defendant was the only person having specific information of any improper conditions.

The plaintiff, Malger M. Stillwell, husband of Mrs. Marie Stillwell, seeks to recover past medical expenses incurred by his wife and future anticipated medical expenses in the amount of $2671.08. Plaintiff, Mrs. Marie Stillwell, seeks to recover the sum of $10,000.00 for pain, suffering, discomfort and disability. The Fidelity and Casualty Company of New York is the insurer of Winn-Dixie Louisiana, Inc. The answer, in the form of a general denial, the defendant affirmatively alleging the accident was caused solely by the negligence of the plaintiff, Mrs. Marie Stillwell.

From a judgment of the Lower Court rejecting their demands, plaintiff perfected this appeal.

Plaintiff, Mrs. Marie Stillwell could not testify as to the nature or the identity of the object upon which she slipped, relating only she slipped upon something and fell. When asked on cross-examination whether she had seen anything on the floor after her fall, other than the glass from the bottle of bleach which plaintiff dropped when she fell, answered: 'No, I didn't.' Mrs. Stillwell was unable to testify as to the presence of any object on the floor at the time she fell nor was she able to testify as to any facts warranting a conclusion the floor was in a dangerous or slippery condition. Mrs. Stillwell could only testify as to the fact she slipped on something and fell, but as observed above she was unable to identify the object she allegedly slipped on.

Mr. Vaccarella, the Manager of the defendant's store testified there was no produce kept in the aisle where Mrs. Stillwell fell; there were no objects or substances on the floor whatsoever other than the broken bottle of bleach and that the floor had been mopped and cleaned the night before. He further related the floor had dried from the previous night's mopping and was in excellent condition. He added at the time of the accident, which was between 8:30 and 9:00 A.M. the store had been open approximately two hours; that the store had not been crowded; that there were no greens on the floor at any time during the morning prior to the accident and that there was no grease in the aisle where Mrs. Stillwell fell.

Mr. Henry Ford, the Assistant Manager of Winn-Dixie Louisiana, Inc., testified when asked whether or not he had looked at the floor while Mrs. Stillwell was still on the floor, that he had and he had not seen any foreign objects. Mr. Ford further testified Mrs. Stillwell had told him after the accident she didn't know what happened, she just fell.

John Turner, the porter, upon whose testimony plaintiffs heavily rely, testified there were greens on the floor in other places in the store, namely the produce aisle but this was not the aisle in which Mrs. Stillwell fell but would not state there were any greens in the aisle where the accident occurred. He further testified when asked whether or not he had seen some green leaves on the floor near the spot where the plaintiff fell he remembered seeing something green at the spot, but 'I don't know what it was, but it was something green.' However, earlier on cross-examination in response to the query: 'Did you by any chance happen to notice whether or not there was any foreign objects on the floor around there such as turnip greens or mustard greens?' answered, 'Probably something was on the floor but I didn't notice at that particular time because I was trying to get her to keep her from cutting herself on the jug.'

Plaintiffs failed to offer any evidence to contradict or rebut the testimony of the defendant's witnesses other than the statement by John Turner, he saw something green on the floor and produced no affirmative evidence of any acts of negligence on the part of the defendant, Winn-Dixie Louisiana, Inc., or its agents and employees.

The Trial Judge in his reasons for judgment concluded Mrs. Stillwell had not seen anything on the floor and that there was no testimony in the record that any foreign object was present in the aisle. He further opined the testimony showed the floor was thoroughly mopped the night before the accident the store had been open only two hours at the time the accident happened and the aisle was not crowded with people. The Trial Judge found under the circumstances the controlling law in this state was that set forth by this court in Meyerer v. Kress et al., 89 So.2d 475, La.App.1956, wherein this court quoted in great detail with approval the case of Peters v. The Great Atlantic & Pacific Tea Company, 72 So.2d 562, La.App.1954, and that he further was of the opinion the Peters case was squarely in point and that plaintiffs had not made out a case. (See Lejeune v. Hartford Accident Indemnity Company, La.App., 136 So.2d 157, 3rd Circuit 1961, Certiorari denied March 16, 1962.)

With the Trial Judge's findings we are in complete accord. This case fits squarely within the rule set forth by this Court in the Meyerer case wherein we held as follows:

'An award to the plaintiff could only be justified on an assumption by us that some substance was on the floor which caused her to slip. The evidence fails to reveal that in fact any such substance was present and for us to assume from the mere fact that she fell that one was present, without be improper and unwarranted.

'The jurisprudence of this state...