Winn-Dixie Montgomery, Inc. v. Rowell

• Decision Date: 14 November 1973
• Docket Number: WINN-DIXIE
• Parties: MONTGOMERY, INC., a corporation, v. Nora M. ROWELL, as the Administratrix of the Estate of Alford L. Rowell. Civ. 59.
• Court: Alabama Court of Civil Appeals

Page 785

288 So.2d 785

52 Ala.App. 1

WINN-DIXIE MONTGOMERY, INC., a corporation, v. Nora M. ROWELL, as the Administratrix of the Estate of Alford L. Rowell.

Civ. 59.

Court of Civil Appeals of Alabama.

Nov. 14, 1973.

Rehearing Denied Dec. 12, 1973.

Davies, Williams & Wallace, Birmingham, for appellant

[52 Ala.App. 3] E. Ray Large, Birmingham, for appellee.

BRADLEY, Judge.

This appeal is from a judgment of the Circuit Court of Jefferson County rendered against the appellant, Winn-Dixie Montgomery, Inc., in the amount of $10,000.

The plaintiff, Alford L. Rowell, died after the taking of the appeal in this case and his widow, Nora M. Rowell, the administratrix of the estate, has moved this court to revive the appeal in her name as administratrix. The motion was granted.

Alford L. Rowell filed a one count complaint alleging that while a business invitee on appellant's premises, he was injured as a result of the negligent stacking of building materials in a walkway of appellant's store and the negligent lighting of said premises. To this complaint appellant pleaded in short by consent, etc. Jury trial was held with verdict and judgment for Mr. Rowell. Appellant's motion for new trial was overruled.

The evidence and its tendencies showed that Mr. Rowell went to appellant's store in Berney Points, Jefferson County, Alabama on June 1, 1970 about eight thirty in the morning to get a box of Kleenex for his wife who was in the hospital.

Upon approaching the front of the store where he had been many times before, Mr. Rowell noticed that one fo the front doors was propped open. He stated that he saw a big sign over the door but paid no attention to it. He walked in the door and proceeded to the right to get around the cash register checkout area and back to the counter where the Kleenex was located.

Mr. Rowell said that he saw the manager and assistant manager operating the cash registers. There were no women operating them as was the usual custom.

He stated that as he went around the cash register area, he turned to the left to go to get the Kleenex and that is when he slipped. There were boxes and lumber stacked in there behind the cash registers.

There was a statement by Mr. Rowell that the store did not seem to be as well lighted on this occasion as it usually was.

As he got in the area of the lumber and boxes, Mr. Rowell said his right foot slipped on something and he tried to put out his left foot to catch himself and it caught on something. He said there was a board in the vicinity of his left foot but he could not say whether his left foot caught on the board or not. He fell and injured his right arm.

Mr. Rowell stated that he was in the regular walkway or aisle when he fell. After falling, he got up and went to the front of the store and sat down. The manager came over to see about him.

About thirty minutes after he fell, Mr. Rowell left the store and went to the hospital to see his wife. While at the hospital he asked to see a doctor. The next day he saw Dr. Ross who prescribed an x-ray examination of the right arm. Subsequent to the x-ray, Dr. Denton put a cast on the right arm.

On the day that he entered the store, Mr. Rowell said that he saw workmen outside the store and inside the store. The work inside the store was going on to the right of the cash registers as he entered the store, in the area of the refrigerator cases. Further, Mr. Rowell stated that after he fell and while seated in the chair he noticed customers in the store and being checked out at the cash registers.

He said that when he went around the end of the cash registers to get to the Kleenex he saw some buggies filled with canned goods between the cash registers and where the work was going on. He testified that they were not blocking his way and that he walked by them in a normal An employee of Barber Pure Milk Company testified that he was in the store when Mr. Rowell fell and that Mr. Rowell pointed out the object which caused his fall. It was round like a broom, mop or shovel handle and was located to the right of the walkway over near the buggies.

fashion, i.e., he did not have to squeeze by them.

The refrigeration engineer in charge of installation of the refrigeration equipment in the store stated that a two-by-six was propped up against the last cash register and protruded into the walkway which was used by customers in getting from the front of the store into the store proper. This person also stated that a big sign saying that the store was closed was strung across the front of the store. He stated that four loaded buggies were placed around the entrance to the area under construction to act as a barrier but a passageway was left open for the use of the workmen. He also testified that the lighting in the store was normal. He further stated that he saw no signs on the entrance doors or in front of them proclaiming that the store was closed, nor was there anyone standing at the door preventing people from entering the store through the open door.

The manager of the store in question testified that a large sign was placed on the door of the store over the entranceway stating that the store was closed for business. On the day that Mr. Rowell fell, the only employees in the store were the assistant manager and himself. The other employees had been told not to come to work that day.

The manager stated that he did not know Mr. Rowell was in the store until he saw him sitting down appearing to be uncomfortable. He got him to a chair. He stated that at the time he heard that someone had fallen he was checking out one of the workmen who had purchased some merchandise. He further stated that he had checked others out and he could not say that they were workmen or someone else. He did say that anyone he checked out was a customer.

Assignments of error one, two and three relate to the refusal of the trial court to give the general affirmative charge with hypothesis in favor of the appellant. The argument in support of these assignments is to the effect that the evidence does not support the allegation that Mr. Rowell was a business invitee; that the burden of proof to support the conjunctive allegations of negligence is not carried by plaintiff; and that there is insufficient evidence on the question of negligence to go to the jury.

When the general affirmative charge is refused, the appellate courts will construe the evidence most strongly in favor of the plaintiff. Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586.

A person who goes upon the premises of another for purposes connected with the business of the owner or occupant of the premises is an invitee. Pinson v. Barlow, 209 So.2d 722 (Fla.App.); Maxymow v. Lake Maggiore Baptist Church, 212 So.2d 792 (Fla.App.); Chambers v. Peacock Const. Co., 115 Ga.App. 670, 155 S.E.2d 704; Aguillard v. Home Ins. Co., 203 So.2d 746 (La.App.); Kapka v. Urbaszewski, 47 Ill.App.2d 321, 198 N.E.2d 569; Wright v. Caffey, 239 Miss. 470, 123 So.2d 841.

In Alabama a grocery store customer has been considered an 'invitee' of the store operator. Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211.

In the case at bar, Rowell alleged in his complaint that he was a 'business invitee' of the appellant. Having alleged that he was an invitee, it became incumbent upon him to prove that he was an invitee.

The proof is in conflict. Mr. Rowell testified that he had been a regular customer of appellant's store in Berney Points The manager of the store and another witness testified that there was a large sign over the entrance to the store proclaiming that the store was closed for remodeling. Both stated, however, that the front door was propped open. The manager stated this was to facilitate the passage of the workmen about their work. He stated that he and his assistant were the only ones on duty that day, that he had told the other employees not to report for work. The manager did say that he checked out customers at the cash register that day and he could not tell whether they were workmen or not.

for sometime, knew the manager and assistant manager, and was generally familiar with the layout of the store; that on the Monday morning he went to the store, he saw the front door propped open and the manager and assistant manager at the case registers. He stated he saw a sign over the front of the store just above the doors but he did not pay too much attention to it. He said he also saw workmen outside the store. He entered the store through the open door and no one attempted to stop him. He proceeded to go to his right, around the cash register area as was his practice, then turned left to go over to the area where the Kleenex was located, which was the item he had entered the store to purchase. As he made the turn around the cash register area which was a walkway for access to the other parts of the store, he fell. After the fall and while seated, he saw other customers in various parts of the store, including the checkout area, i.e., the cash registers.

The evidence was in conflict as to whether or not the appellant's store was open for business and whether or not plaintiff was invited to come on its premises.

The question of whether a person is or is not an invitee is factual and in a jury trial devolves upon the jury for determination. Franklin Fire Ins. Co. v. Slaton, 240 Ala. 560, 200 So. 564. The question was presented to the jury in the instant case and it found for the plaintiff. Moreover, the evidence was sufficient to constitute a scintilla so as to authorize the trial court to refuse the requested affirmative charge with hypothesis on this ground. Liverpool & Longdon & Globe Ins. Co. Ltd. of England v. McCree, 213 Ala. 534, 105 So. 901.

Appellant also argues, in support of its contention that the trial court erred in refusing the affirmative charges with hypothesis, that Mr. Rowell failed to prove the allegations of negligence as set out in the...