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

• Decision Date: 23 May 1963
• Docket Number: WINN-DIXIE,No. D-183,D-183
• Citation: 153 So.2d 45
• Parties: 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.
• Court: Florida District Court of Appeals

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.

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 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 defendants. In response to the contractor's contention that he had completed his work and that the installation had been accepted by and was under the complete control of the motel owner at the time of injury, the contractor's negligence, if any, became the negligence of the owner for which the contractor should not be held liable. In disposing of this issue the Supreme Court recognized the general rule set forth in Restatement of the Law of Torts, § 385, as follows:

"By occupying and resuming possession of the work the owner deprives the contractor of all opportunity to rectify his wrong. Before accepting the work as being in full compliance with the terms of the contract, he is presumed to have made a reasonably careful inspection thereof, and to know of its defects, and if he takes it in the defective condition, he accepts the defects and the negligence that caused them as his own, and thereafter stands forth as their author. When he accepts work that is in a dangerous condition, the immediate duty devolves upon him to make it safe, and if he fails to perform this duty, and a third person is injured, it is his negligence that is the proximate cause of the injury. His liability may be incurred either from his substitution for the contractor or from his neglect to repair."

In Slavin the contractor was nevertheless held liable because the defect caused by the negligent installation of the basin was hidden or latent, a condition unknown to the owner and which could not have been discovered by a reasonable inspection.

The rule in Slavin was followed by the Third District Court of Appeal in the Baader case, ² and in the Mastrandrea case. ³ Each of these cases involves the liability of a materialman for injuries suffered as a result of the negligent stacking of materials delivered by the materialmen to a contractor. In each instance the materials negligently stacked in a dangerous manner had been delivered to and accepted by the contractor to whom they were sold. No hidden or latent defects were involved. The rule in Slavin was applied to insulate the materialmen from liability.

Although the principle of law contended for by Pepsi-Cola is sound in every respect, and is recognized as the law of this state, it is our view that it has no...