Thogmartin v. Koppel

• Decision Date: 06 March 1937
• Docket Number: 33209.
• Citation: 145 Kan. 347,65 P.2d 571
• Parties: THOGMARTIN v. KOPPEL. [*]
• Court: Kansas Supreme Court

65 P.2d 571

145 Kan. 347

THOGMARTIN v. KOPPEL. ^[*]

No. 33209.

Supreme Court of Kansas

March 6, 1937

Syllabus by the Court.

Storekeeper is not an insurer of customers' safety, and is liable only for injuries resulting from negligence, but if a latent dangerous condition exists, storekeeper has duty to warn customers in order that they may avoid danger.

Whether mopping of linoleum covering store floor made floor slippery so as to create latent defect in floor on which customer slipped and fell held for jury.

Court's instruction to which no objection was made became law of case and binding on parties.

In customer's action for injuries sustained from slipping on floor of store, where no objection was taken to instruction submitting case on theory that failure to warn of slippery floor was negligence and jury found that store was negligent in not giving such warning, store held not entitled to judgment notwithstanding verdict for customer on ground that such negligence was not specifically alleged.

1. In considering the duty and liability of a storekeeper respecting the condition of his premises, courts proceed upon the theory the storekeeper is not an insurer of the safety of customers, but is liable only for injuries resulting from negligence on his part, and if a latent dangerous condition exists, it is the storekeeper's duty to warn customers in order to enable them to avoid the danger.

2. Where the trial court gave the instruction quoted in the opinion relating to the storekeeper's duty to licensees and invitees, and there was no objection thereto, it became the law of the case and binding on the parties.

3. The record examined and held the trial court did not err in overruling defendant's demurrer to plaintiff's evidence nor in denying his motion for judgment on the special findings of the jury.

Appeal from District Court, Crawford County; Leland M. Resler Judge.

Action by Grace Thogmartin against Henry Koppel, doing business under the firm name and style of the Sunny Sis Shop. Judgment for plaintiff, and defendant appeals.

P. E Nulton and R. L. Letton, both of Pittsburg, for appellant.

A. H Carl, of Pittsburg, for appellee.

THIELE Justice.

This was an action by plaintiff to recover damages for injuries sustained in falling on the floor of defendant's store and from a verdict in plaintiff's favor, defendant appeals.

The petition, on which the cause was tried, after stating formal matters, charged that on December 5, 1936, defendant, operating a ladies' furnishing store, permitted his janitor "to mop the floor in said store using a mop and water and in so doing caused the floor of said store to be made very slippery and particularly had said floor wet and slippery in front of the door entering the store owned and operated by the said defendants at 512 N. Broadway, Pittsburg, Kansas"; that plaintiff stepped inside of the store door for a distance of about 5 feet and as she turned to go out of the building her right foot came in contact with the slippery floor and she fell sustaining injuries which are detailed; that before the injury she was a strong healthy woman "but as the result of the acts of carelessness and negligence on the part of the defendants aforesaid in causing and permitting said floor to be made wet and slippery and to remain in a dangerous and unsafe condition by having said floor wet and slippery as above described," she had been compelled to take medical treatment. There is no other allegation of the petition charging negligence. We need not notice defendant's answer further than to say it contains a general denial and a charge of contributory negligence. At the trial, defendant demurred to plaintiff's evidence. The demurrer was overruled, and defendant presented its proof. At the close, defendant requested a peremptory instruction for a verdict in its favor, which was refused. The following instruction was given:

"You are instructed that the owner or proprietor of a store is not under the same obligation to licensees as he is to those who are upon the premises by his express or implied invitation. To persons who are upon the premises by his express or implied invitation, he owes a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed defects. To mere licensees upon the premises he owes no such duty, as to them he is under obligation only not to wilfully and intentionally injure them, since licensees take the premises as they find them."

Special questions were submitted to the jury, which were answered as follows:

"Question No. 1: At what time did the plaintiff enter the store of the defendant on the day in question ?

"Answer: Between 4:30 and 5:00 o'clock p.m.

"Question No. 2: If you find the defendant guilty of negligence then state the act or acts of negligence of which the defendant was guilty.

"Answer: Without notifying her the floor was in a slippery, dangerous condition.

"Question No. 3: Did the plaintiff observe as the entered the store that the linoleum was being mopped?

"Answer: No.

"Question No. 4: If you answer question No. 3 'No,' then state what, if anything, prevented plaintiff from observing that the linoleum was being mopped as she entered the store?

"Answer: No evidence that floor was being mopped.

"Question No. 5: Were the injuries and damages suffered by the plaintiff, if any, the result of an accident as defined in the court's instructions?

"Answer: No, plaintiff was not notified as to slippery condition of the floor."

Defendant filed its motion for judgment on the special findings notwithstanding the general verdict, which motion was denied and judgment was rendered for plaintiff. No motion for a new trial was filed. Defendant appeals, assigning as error the overruling of its demurrer to plaintiff's evidence, the refusal of the court to give its requested instruction for a verdict in its favor, and the denial of its motion for judgment notwithstanding the general verdict.

In considering the duty and liability of a storekeeper respecting the condition of his premises, courts proceed upon the theory the storekeeper is not an insurer of the safety of customers, but is only liable for injuries resulting from negligence on his part, and that if a dangerous condition exists, it is the storekeeper's duty to warn the customers in order to enable them to avoid the danger. Annotations may be found on duty and liability respecting condition of store or shop in 33 A.L.R. 181, 43 A.L.R. 866, 46 A.L.R. 1111, 58 A.L.R. 136, and 100 A. L.R. 711. A customer entering a store for the purpose of trade is an invitee (45 C.J. 815) and the proprietor owes him a duty of exercising reasonable care for his safety (45 C.J. 823). This duty applies especially to latent defects, which must be known to the proprietor or have existed for such time it was his duty to know thereof. 45 C.J. 837; 20 R.C.L. 57.

An application of a portion of the above...