Winn-Dixie Stores, Inc. v. Fellows, WINN-DIXIE

CourtCourt of Appeal of Florida (US)
Writing for the CourtWIGGINTON; STURGIS, Acting Chief Judge, and RAWLS
Citation153 So.2d 45
Decision Date23 May 1963
Docket NumberWINN-DIXIE,No. D-183
PartiesSTORES, INC., a corporation, and Pepsi-Cola Bottling Company of Jacksonville, Inc., a corporation, Appellants, v. Muriel S. FELLOWS and Robert Fellows, her husband, Appellees.

Page 45

153 So.2d 45
WINN-DIXIE STORES, INC., a corporation, and Pepsi-Cola Bottling Company of Jacksonville, Inc., a corporation, Appellants,
v.
Muriel S. FELLOWS and Robert Fellows, her husband, Appellees.
No. D-183.
District Court of Appeal of Florida, First District.
May 23, 1963.
Rehearing Denied May 23, 1963.

Barnes & Slater; Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for appellants.

Robinson & Randle, Jacksonville, for appellees.

Page 46

WIGGINTON, Judge.

This appeal is from a final judgment entered in favor of the appellees Fellows upon a jury verdict rendered against both appellants, Winn-Dixie Stores, Inc., and Pepsi-Cola Bottling Company of Jacksonville, Inc., and from a judgment of involuntary nonsuit taken by Winn-Dixie upon an announcement by the trial judge of his intention to direct a verdict in favor of Pepsi-Cola on Winn-Dixie's counterclaim.

By its appeal Pepsi-Cola contends that the trial court erred in denying its motion for directed verdict made at the conclusion of the evidence for the reason that the proof adduced at the trial failed as a matter of law to establish Pepsi-Cola's liability to plaintiffs.

By its appeal Winn-Dixie contends that the evidence was sufficient to establish a jury question on its right to recover over against Pepsi-Cola under the allegations of its counterclaim, and that the trial court erred in forcing it to take a non-suit by announcing the intention to grant a directed verdict in favor of Pepsi-Cola on the counterclaim.

The evidence, when considered in a light most favorable to appellees, establishes the following facts. At all times pertinent to the cause of action sued upon Winn-Dixie was the owner and operator of a grocery store in Jacksonville. For many years prior to plaintiff's injuries Pepsi-Cola sold and delivered to Winn-Dixie supplies of the beverage produced by it, and assumed the responsibility for constructing within the grocery store a display of its beverage for sale to the public. The display was constructed at a location designated by Winn-Dixie for that purpose. The beverages were delivered in small metal cartons consisting of six bottles each. The display was constructed by arranging the cartons in successive tiers, one tier being placed directly upon the other, until the display was built upward to such height as to make it clearly visible to the customers shopping in the store. For many months prior to the day on which appellee was injured Winn-Dixie had complained to Pepsi-Cola that the manner in which it was constructing its display created a hazardous and dangerous condition which might result in injuries to customers shopping in the store. The hazard consisted of Pepsi-Cola's negligent failure or refusal to place dividers of fiberboard between each tier of cartons; in constructing the display to excessive heights; and in delivering the beverage in metal cartons which were often found to be bent, rusted or torn.

Winn-Dixie had frequently experienced past occasions on which an attempt by a customer to remove a carton of beverage from the uppermost tier of the display caused another carton of beverage to slide or fall from the top tier to the floor, resulting in the bottles breaking and scattering glass over the area. It had also experienced past occasions when the metal caps on the bottles of beverage contained in one carton became engaged with the bottom of the carton placed immediately on top of it, which caused the lower carton of beverages to adhere to the upper carton when the latter was lifted from the display by a customer, resulting in the bottom carton dropping from the one being removed thereby causing it to fall to the floor. This likewise resulted in the breaking of bottles and scattering of glass in the area.

On the day in question Pepsi-Cola had constructed its display in the Winn-Dixie store in much the same manner as it had in the past. The display was built to an excessive height and no dividers had been placed between the tiers of cartons in the display. While shopping in the store appellee Fellows walked to the display for the purpose of removing therefrom a carton of beverages. She lifted a carton from the top tier of the display, and attempted to remove it outward from the stack. As she did so, the carton of beverages immediately beneath the one she sought to remove adhered to the upper carton, and before appellee became aware of what had happened, the bottom carton became disengaged and fell to the floor. Appellee was cut on the instep of

Page 47

her foot by glass from one of the bottles which broke when it struck the floor.

Appellee's cause of action against Pepsi-Cola is on the theory that the latter carelessly and negligently arranged the display of its product in such manner as to create a dangerous condition as a proximate cause of which plaintiffs suffered damages. The cause of action against Winn-Dixie is upon the theory that it violated a duty owed by it to plaintiff to provide a safe place in which to shop by negligently permitting the dangerous condition created by the display to exist, the hazardous condition of which Winn-Dixie knew or ought to have known and which it should have corrected prior to the time of the accident.

We shall first consider Pepsi-Cola's contention that the court erred in denying its motion for directed verdict at the close of the evidence. The proof was such that the jury could have lawfully concluded that the beverage display arranged by Pepsi-Cola was done in a negligent and careless manner creating a dangerous condition which proximately caused the damages suffered by plaintiff. Construction of the display was completed some two or three hours prior to the accident which resulted in appellee's injuries. It is Pepsi-Cola's position that the cartons of beverage sold by it to Winn-Dixie became the property of the latter upon delivery; that Winn-Dixie had full knowledge of the manner in which the display was constructed by Pepsi-Cola several hours before the accident, and that Winn-Dixie's failure to remedy any alleged dangerous or hazardous condition created by the display was the sole proximate cause of plaintiff's injuries for which Pepsi-Cola should not be held liable. It contends that there were no latent or hidden defects in the construction of the display, and that Winn-Dixie had accepted the manner in which the display was constructed and was in exclusive possession and control of the premises prior to and at the time the accident occurred. In support of its position Pepsi-Cola relies on the decision rendered by the Supreme Court in the Slavin case. 1 This case involved damages suffered by a guest in a motel resulting from a latent defect caused by the negligent installation of a basin on the wall of the bathroom occupied by plaintiff. Both the motel owner and the plumbing contractor who installed the basin were sued as...

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43 practice notes
  • Cheney v. Dade County, No. 76-1655
    • United States
    • Florida District Court of Appeals
    • December 20, 1977
    ...Air Line Railroad Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932); Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla. 1st DCA To sustain any cause of action predicated on negligence as here, the plaintiff must plead and prove the following three elemen......
  • Mims Crane Service, Inc. v. Insley Mfg. Corp., No. 68--627
    • United States
    • Court of Appeal of Florida (US)
    • October 3, 1969
    ...Great A. & P. Tea Co. v. Federal Detective Agency, Inc., Fla.App.1963, 157 So.2d 148; Winn-Dixie Stores, Inc. v. Fellows, Fla.App.1963, 153 So.2d 45; Fincher Motor Sales, Inc. v. Lakin, Fla.App.1963, 156 So.2d 672; Olin's Rent-A-Car Sys., Inc. v. Royal Continental Hotels, Inc., Fla.App.1966......
  • Tober v. Hampton, No. 35906
    • United States
    • Supreme Court of Nebraska
    • July 2, 1965
    ...between tort-feasors have not generally allowed it in a case such as is now before us. In Winn-Dixie Stores, Inc. v. Fellows (Fla.App.), 153 So.2d 45, the court, in discussing the rights of the parties, stated: 'On the basis of the foregoing proof coming from the mouths of Winn-Dixie's own ......
  • Stuart v. Hertz Corp., 46553
    • United States
    • United States State Supreme Court of Florida
    • July 28, 1977
    ...Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973); Mims Crane Serv., Inc. v. Insley, supra; Winn-Dixie Stores v. Fellows, 153 So.2d 45 (Fla.1st DCA 1963); Suwannee Valley Elec. Coop., Inc. v. Live Oak, Perry and Gulf R. Co., 73 So.2d 820 (Fla.1954); Seaboard Air Line Ry. Co. ......
  • Request a trial to view additional results
43 cases
  • Cheney v. Dade County, No. 76-1655
    • United States
    • Florida District Court of Appeals
    • December 20, 1977
    ...Air Line Railroad Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932); Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla. 1st DCA To sustain any cause of action predicated on negligence as here, the plaintiff must plead and prove the following three elemen......
  • Mims Crane Service, Inc. v. Insley Mfg. Corp., No. 68--627
    • United States
    • Court of Appeal of Florida (US)
    • October 3, 1969
    ...Great A. & P. Tea Co. v. Federal Detective Agency, Inc., Fla.App.1963, 157 So.2d 148; Winn-Dixie Stores, Inc. v. Fellows, Fla.App.1963, 153 So.2d 45; Fincher Motor Sales, Inc. v. Lakin, Fla.App.1963, 156 So.2d 672; Olin's Rent-A-Car Sys., Inc. v. Royal Continental Hotels, Inc., Fla.App.1966......
  • Tober v. Hampton, No. 35906
    • United States
    • Supreme Court of Nebraska
    • July 2, 1965
    ...between tort-feasors have not generally allowed it in a case such as is now before us. In Winn-Dixie Stores, Inc. v. Fellows (Fla.App.), 153 So.2d 45, the court, in discussing the rights of the parties, stated: 'On the basis of the foregoing proof coming from the mouths of Winn-Dixie's own ......
  • Stuart v. Hertz Corp., 46553
    • United States
    • United States State Supreme Court of Florida
    • July 28, 1977
    ...Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973); Mims Crane Serv., Inc. v. Insley, supra; Winn-Dixie Stores v. Fellows, 153 So.2d 45 (Fla.1st DCA 1963); Suwannee Valley Elec. Coop., Inc. v. Live Oak, Perry and Gulf R. Co., 73 So.2d 820 (Fla.1954); Seaboard Air Line Ry. Co. ......
  • Request a trial to view additional results

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