Therrien v. First Nat. Stores, Inc.

• Citation: 6 A.2d 731
• Decision Date: 20 June 1939
• Docket Number: Nos. 8080, 8081.,s. 8080, 8081.
• Parties: THERRIEN v. FIRST NAT. STORES, Inc. (two cases).
• Court: United States State Supreme Court of Rhode Island

6 A.2d 731

THERRIEN

v. FIRST NAT. STORES, Inc.(two cases).

Nos. 8080, 8081.

Supreme Court of Rhode Island.

June 20, 1939.

Exceptions from Superior Court, Kent County; Herbert L. Carpenter, Judge.

Two actions of trespass on the case for negligence by Marie Therrien and Hector W. Therrien against First National Stores, Incorporated, for injuries received by plaintiff, Marie Therrien, when she fell on accumulation of snow on sidewalk and for loss of services and expenses incurred by plaintiff, Hector W. Therrien, as result of injuries received by plaintiff Marie Therrien. A verdict was directed for the defendant in each case and plaintiffs bring exceptions.

Exceptions overruled and cases remitted for entry of judgment on verdict.

Ralph L. Briggs, of Providence, for plaintiffs.

Henshaw, Lindemuth & Siegl, Benjamin F. Lindemuth, and Daniel S. T. Hinman, all of Providence, for defendant.

CONDON, Justice.

These are actions of trespass on the case for negligence which were tried together in the superior court and resulted in a directed verdict for the defendant in each case. The plaintiffs are here on their exceptions to the granting of defendant's motions for such verdicts and on certain other exceptions to rulings of the trial justice admitting or excluding evidence at the trial.

The plaintiffs are husband and wife. The wife, Marie E. Therrien, brought suit for personal injuries sustained by her as a result of slipping on some ice or snow on the sidewalk in front of the defendant's store on Washington street in Arctic, Rhode Island, on December 31, 1935. The plaintiff, Hector W. Therrien, is suing for the loss of his wife's services and for the expenses which he incurred as a result of her injuries. For convenience, we shall hereinafter discuss the questions raised as though only the wife's case was before us.

We shall consider first the plaintiff's exception to the decision granting defendant's motion for a directed verdict. The plaintiff contends that this decision is erroneous, on the ground that the trial justice misconceived the law upon which the plaintiff based her cause of action and misunderstood the evidence tending to prove it. She further contends that the trial justice erred in granting defendant's motion on the ground of lack of proximate cause, because that issue could have been, and should have been, raised by the defendant by demurrer to the plaintiff's declaration. No objection of that nature having been made to the declaration before the close of the pleadings, she argues that it is too late to make it at the trial by a motion for a directed verdict.

This latter argument, if sound, would leave the defendant without any right to have this court pass upon its contention, which was made in support of its motion for a directed verdict below, that the evidence disclosed no cause of action in the plaintiff. The plaintiff's argument is not sound. The case cited by her does not support her contention. Huebel v. Baldwin, 45 R.I. 40, 119 A. 639, 641. And the citation from 64 C.J. 426, § 423, shows authority against her contention as well as for it.

The plaintiff quotes in her brief the following sentence from the opinion in the Huebel case as laying down the rule for which she contends: "The single question is: Is there sufficient legal evidence to require submission of the case to the jury?" To cull one sentence from an opinion in this way in total disregard of its context is seldom, if ever, helpful. A careful reading of the point which the court was discussing in the cited case discloses at once that it is not an authority for the proposition advanced by the plaintiff.

We can agree with the quotation from 64 C.J. 426 that: "A motion to direct is not designed to fulfill the function of a demurrer to the pleadings * *." At least we can agree that such a motion can not be used to assail formal defects in the declaration which, if they had been attacked by demurrer, might have been corrected by amendment. But, in the instant case, both the declaration and the evidence fail to show that the plaintiff has a good cause of action. In such circumstances a motion to direct is proper. See Laughlin v. North America Benefit Corp., 244 Ill.App. 391; Federal Automobile Ins. Ass'n v. Meyers, 218 Ala. 520, 119 So. 230; Austin Western Co. v. Township of Weaver, 136 Iowa 709, 114 N.W. 189; Bozzelli v. Industrial Comm., 122 Ohio St. 201, 171 N.E. 108; Weinberg v. Schaller, 34 Ohio App. 464, 171 N.E. 346. And there is authority for the view that a direction on the ground of no cause of action involves insufficiency of the evidence and not insufficiency of the complaint or declaration. Romaine v. New York, N. H. & H. R. Co., 91 App.Div. 1, 86 N.Y.S. 248, affirmed, 181 N.Y. 523, 73 N.E. 1131.

The evidence tended to show that on the morning of December 31, 1935, defendant's servant cleared the sidewalk in front of defendant's store of snow which had fallen the night before. It appeared that he first shoveled it off and then swept off what remained with a broom, except that after he had finished his work there remained a few patches here and there. The day was chilly and the snow was thawing and freezing, thus making places on the sidewalk where patches of snow still remained icy and slippery.

The plaintiff came to Arctic in the morning and went to see a motion picture at the Palace Theatre, which was situated on the same side of Washington street as the defendant's store and about four doors away. After being in the theatre about two hours she came out and went immediately to the defendant's store to make a purchase. As she walked along the sidewalk she did not notice its condition. After making her purchase, she left the store and reached the sidewalk and was about to walk across it when she saw another woman approaching. In order to avoid colliding with this woman, the plaintiff, as she testified, stepped around her and as she did so she slipped and fell on the sidewalk. At that moment she did not know what caused her to slip and fall but after she was assisted to her feet she looked down at the sidewalk and saw there for the first time a patch of ice and snow.

Viewing all of the evidence most favorably to the plaintiff, as we must on defendant's motion, it is fair to say that there was evidence from which the jury could reasonably find that the defendant was negligent in cleaning the sidewalk in the manner it did, and that the plaintiff was in the exercise of due care. However, the question is whether the defendant was guilty of actionable negligence toward the plaintiff. The plaintiff argues that it was, and she relies upon the doctrine stated in 45 C.J. 646 as follows: "So also, one who undertakes to do an act or perform a service for another is bound to use reasonable care and skill in the performance thereof and is liable for his failure in this respect, although his undertaking was purely voluntary, and he was not under any obligation to do such act or perform such service." She cites also Gill v. Middleton, 105 Mass. 477, 7 Am.Rep. 548 and McLeod v. Rawson, 215 Mass. 257, 102 N.E. 429, 46 L.R.A.,N.S., 547, in support of her position. Her argument is plausible but not convincing. It is clear from the evidence that the plaintiff has not brought her case within the above-quoted principle since she does not show that the defendant undertook to perform the service of cleaning the sidewalk for her personally.

In the Gill case the duty of the defendant arose out of a voluntary undertaking on the part of a landlord to make repairs to the premises occupied by the plaintiff tenant and his assurance to the plaintiff after the repairs had been made that it was safe for her to use said premises. Here the duty voluntarily assumed by the landlord was due to the tenant only, and not to the public generally who might come upon the premises.

In the McLeod case, the duty...