Uelentrup v. Switzerland Stores

• Citation: 164 S.W.2d 650
• Decision Date: 06 October 1942
• Docket Number: No. 26119.,26119.
• Parties: UELENTRUP v. SWITZERLAND STORES, Inc.
• Court: Court of Appeal of Missouri (US)

164 S.W.2d 650

UELENTRUP v. SWITZERLAND STORES, Inc.

No. 26119.

St. Louis Court of Appeals. Missouri.

October 6, 1942.

Appeal from St. Louis Circuit Court; William L. Mason, Judge.

"Not to be reported in State Reports."

Action by Marie Uelentrup agains Switzerland Stores, Inc., a corporation. On appeal from justice of the peace court and trial de novo in the circuit court, judgment for $600 was rendered in favor of the plaintiff, and defendant appeals.

Reversed.

John F. Evans, of St. Louis, for appellant.

Robert E. Hannegan, E. J. McCarty, Gilbert Weiss, and Redick O'Bryan, all of St. Louis, for respondent.

HUGHES, Presiding Judge.

This case originated in a justice of the peace court without formal pleadings. On appeal and trial de novo in the circuit court a verdict and judgment for $600 was rendered against the defendant, from which an appeal was taken to this Court.

Defendant operated a grocery store on the corner of Cherokee and Ohio streets in the City of St. Louis. On cross examination the plaintiff testified as follows: "As you go in the side door of the store you would be near the meat counter and the vegetable counter would be to the north. I purchased some meat and then went to the vegetable counter. The vegetable counter is shaped something like the bench in front of the clerk's cubicle in this courtroom. It is much longer than it is wide and you can walk clear around it. The aisleway around it is about four feet in width. The top of the counter is divided into different sorts of trays for different kinds of vegetables. I commenced on the right side and walked completely around the counter before I fell. I was looking for and selecting vegetables as I went around. The clerk was there to wrap up my vegetables as I bought them. There were other women buying vegetables. As we went along the counter and selected vegetables we might pick up a vegetable, examine it and put it down and pick up another one. Finally, I selected the items I wanted and gave them to the clerk who put them in a bag. At the point where I was standing just before I fell I would be facing east, with the cashier's desk back of me and a little bit to my left. As I walked around the counter, I could see the vegetables and the floor quite plainly. There was plenty of light. I didn't see anything at all on the floor as I walked around. I wasn't looking at the floor; I was looking at the vegetables. As I started to turn around on my right heel, my foot went out from under me. Up to that time I hadn't looked for anything on the floor. I don't think that I looked on the floor at any time as I went around the counter. My attention was centered on the vegetable counter. After I fell, I saw the small lettuce leaf clinging to my shoe. This was an ordinary leaf of lettuce. This is all I saw on my foot; I didn't look anywhere else. I actually fell to the floor but I didn't look for any other leaves or debris of any kind on the floor. My foot was hurting and I started to get up. I didn't see anything else at all. I testified in this case in the justice of the peace court in April, 1940. Nobody asked me anything at that time concerning anything that a manager or any person in the store might have said and I made no statement concerning it. They didn't ask me a thing about that. As I walked around the counter, I saw other women examining vegetables and buying them." Plaintiff had testified on direct examination that when she fell the boy (clerk) was standing right there and helped her up, and a girl that was behind the counter brought a chair, and she (plaintiff) sat on the chair; that they got the manager and he came over and looked at her foot and asked the boy what had happened, and the boy said, "She slipped on a piece of lettuce." Over defendant's objection the plaintiff testified, in answer to a question as to what the manager said in response to the boy's statement that "she slipped on a piece of lettuce," "He asked him why he didn't clean it up like he told him to," to which the boy made no reply.

There was no other testimony except as to the extent of plaintiff's injuries, and at the close of plaintiff's evidence the defendant asked the Court to give to the jury an instruction in the nature of a demurrer to plaintiff's evidence. The demurrer was refused. Defendant offered no evidence.

The defendant now assigns error in the refusal of its demurrer. Under the established rule, in determining whether or not the demurrer should have been given, we must view the evidence in a light most favorable to plaintiff.

The law is well settled that a merchant or storekeeper is not an insurer of the safety of customers invited to his store, nor does his duty to customers rest upon the same basis as that of a master to a servant or of common...