Louie v. Hagstrom's Food Stores, Inc.

Plaintiff brought this action to recover for personal injuries resulting from a fall in the entrance to defendant’s grocery store. The cause was tried before a jury. It brought in a verdict of $2,500. From the judgment entered on the verdict, and from the order denying the defendant’s motion for a judgment notwithstanding the verdict, defendant appeals. It is defendant’s theory on this appeal that the evidence is insufficient, as a matter of law, to establish any negligence on its part, that the evidence demonstrates, as a matter of law, that plaintiff was guilty of contributory negligence, and that the court erred in not sustaining its objections to certain evidence relating to several items of consequential damage, and erred in its instructions on this issue.

Defendant operates a grocery and vegetable store in Oakland. Plaintiff was a regular customer of the store. The establishment is of the self-service type, with a cashier’s stand located near the front of the store, a short distance from the entrance. The floor is of concrete, and the various articles for sale are displayed in open shelves, boxes and bins. In approximately the center of the wide entrance is a substantial wooden post extending from the floor upwards

There is no dispute that it was a puddle of syrup that caused the fall. One of the employees of defendant testified that after the accident he cleaned up the syrup from the cement floor; that there was a broken glass pint jar of Karo syrup lying in a torn paper bag alongside the post. Defendant makes no contention that the syrup was plaintiff’s, or that she had dropped it or caused it to drop. Plaintiff makes no contention that any employee of defendant placed the broken bottle at the foot of the post. On this appeal there is no dispute concerning the nature or extent of plaintiff’s injuries.

Plaintiff testified that she selected her purchases, had them checked by the cashier, paid for them, picked them up, and started to leave the store, intending to go to her husband’s ear, then parked near the store. Just as she reached the post she slipped and fell in a sitting position. She tried to get up and slipped again. She testified that she “walked into something that was slippery and sticky and caused my feet to fly from under me”; that she concluded she had fallen in some syrup; that she did not see the syrup

One of the employees of defendant, Pattee by name, testified that at the time of the accident he was in charge of the produce counter and that it was also his duty to sweep the store periodically and to keep the aisles clear. At the time of the trial—October, 1946—he was the manager of the store in question. He testified that he cleaned up the syrup after the accident; that there was an egg-shaped puddle of syrup of about 6 to 8 inches; that he swept the floor periodically and always swept from the front towards the back; that it took about 15 minutes to sweep the entire store; that he had just completed the sweeping operation when the accident occurred. There is some confusion in his testimony on this point, defendant’s counsel at the trial interpreting Pat-tee’s evidence to mean that it was 5 or 10 minutes after the sweeping operation had been completed that the accident occurred. The testimony is susceptible of that interpretation. Pattee testified that when he swept the entrance the broken bottle of syrup was not there. Thus there was a period of between 15 to 25 minutes immediately before the accident that Pattee, and apparently no other employee, had examined the entrance to the store.

Pattee also testified that he was familiar with the characteristics of syrup; that the kind here involved was Karo; that Karo is a thick syrup that does not flow freely; that October 6, 1945, was a cold day; that syrup will flow more freely under conditions of warmth than under cold conditions; that Karo is thick and adhesive and does not flow freely; that if Karo were dropped on the floor it would “just sit there before it began to gradually ooze out.”

The other employees of defendant knew nothing about the accident and could add nothing to the factual back

As frequently occurs in the field of torts there is no substantial dispute over the applicable rules of law—the real dispute is over the application of those rules to the facts of the case. Admittedly, the plaintiff, as a customer, was the business invitee of defendant. Admittedly, the defendant is not an insurer of the safety of business visitors. The true rule is that the owner or occupier of business premises owes to invitees a duty to exercise reasonable care in keeping the premises reasonably safe for such invitees. (Tuttle v. Crawford, 8 Cal.2d 126 [ 63 P.2d 1128 ]; Owen v. Beauchamp, 66 Cal.App.2d 750 [ 152 P.2d 756 ]; McKellar v. Pendergast, 68 Cal.App.2d 485 [ 156 P.2d 950 ].) To impose liability for injuries suffered by an invitee due to the defective condition of the premises, the owner or occupier “must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect

The same rule is adopted by the Restatement of Torts. Section 343.reads as follows: “A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care should discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them.”

So far the parties agree. But the defendant contends that before the question can arise as to whether the owner or occupier should have discovered the defective condition there must be some evidence of how long the defective condition existed, and it urges that there is no such evidence here. It seems to be the thought of defendant that such evidence must be direct evidence.. That is not the law. The true rule is that, while plaintiff must prove that the defective condition existed long enough so that by the use of reasonable care it should have been discovered and remedied, that fact, like other facts, may be proved by circumstantial as well as by direct evidence. It is generally a question of fact for the jury as to whether, under all the circumstances, the defective condition existed long enough so that a reasonable man exercising reasonable care would have discovered it. In Rothschild v. Fourth & Market St. R. Co., 139 Cal.App. 625 , 627 [ 34 P.2d 734 ], the court stated: “However, the question whether the condition which caused the injury had existed so long as to be discoverable by the defendant within a reasonable time is one for the jury.”

In Tuttle v. Crawford, 8 Cal.2d 126 , 130 [ 63 P.2d 1128 ], the Supreme Court stated the rule as follows: “Whether the floor of a store or public market place was so negligently maintained as to render the person responsible for its condition liable in damages is a question of fact to be decided by the jury.”

The same court in Hatfield v. Levy Brothers, 18 Cal.2d 798 , 807 [ 117 P.2d 841 ], declared: “Further, the question of whether the condition which caused the injury had existed

The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances. A person operating a grocery and vegetable store in the exercise of ordinary care must exercise a more vigilant outlook than the operator of some other types of business where the danger of things falling to the floor is not so obvious. This was recognized by the Supreme Court in the Tuttle case, supra, where at page 130 the court stated: “The fact that the attention of persons who visit public markets is attracted by the display of the wares offered for sale and more or less absorbed by the transactions which they have in mind would seem to increase the necessity of exercising care to the end that the floor spaces and aisles allotted to the use of customers should be made safe and kept fit for such purpose.”

In the instant case it is quite clear that there was sufficient circumstantial evidence from which the jury could have inferred that the syrup was on the floor a sufficient time so that, in the exercise of reasonable care, the defendant should have discovered it and remedied the defective condition. There is evidence that the cashier could see the foot of the pole from her position at the cashier’s desk; that while her back was to the pole when wrapping packages and collecting money her duties required her to face the front of the store on frequent occasions. Moreover, it is a reasonable inference that when this glass jar fell to the concrete floor with sufficient force to break it, it must have made an appreciable noise which the cashier should have heard. There is evidence that no employee of defendant examined the front entrance for between 15 to 25 minutes immediately preceding the accident. There is evidence that the puddle of syrup had reached appreciable proportions before the accident. There is evidence of defendant’s own witness that this syrup was quite thick, possessed adhesive qualities, that the day was cold, and that on such a day the syrup would flow quite slowly. It is a reasonable inference that for this heavy thick fluid to have seeped through the paper bag and to have formed a puddle of appreciable proportions would take a substantial period of time. When

None of the California cases cited by defendant compels or suggests a contrary conclusion. While defendant cites some cases from other states that contain language supporting its position, in view of the wealth of California authority on the subject, those cases cannot be deemed authoritative in this state. In support of its contention that plaintiff, as a matter of law, has not met her responsibility of showing the existence of the defect for a sufficient length of time to bring into operation the rule of constructive notice defendant places its main reliance on McKellar v. Pendergast, 68 Cal.App.2d 485 [ 156 P.2d 950 ], and Owen v. Beauchamp, 66 Cal.App.2d 750 [ 152 P.2d 756 ], In the McKellar case the appellate court affirmed a judgment for the defendants based on the granting of a motion for judgment notwithstanding the verdict. There the plaintiff, a tenant in an apartment house, slipped on some oily substance on the lobby floor. Her main theory was that the janitor negligently allowed garbage drippings to fall on the floor. She offered no substantial evidence on that issue. Plaintiff also argued that if a third person dropped the substance on the floor defendant should have remedied the condition. The appellate court held that there was no evidence at all to support that contention because there was no direct or circumstantial evidence as to how long the unknown oily substance had been on the floor. That case is to be distinguished from the instant one where, as already pointed out, there was substantial evidence to support a reasonable inference that the syrup had been on the floor an appreciable time. Moreover, as already pointed out, while the “degree” of care in the instant ease is identical with that required in the McKellar case, the “quantum” of care necessary to constitute “reasonable” care is more exacting and greater in a public store than in an apartment house lobby.

The other case upon which defendant places its main reliance is Owen v. Beauchamp, supra. It was decided by

The next contention of defendant is that the evidence, as a matter of law, shows contributory negligence. The contention is predicated upon plaintiff’s evidence that she did not look at the floor as she walked towards the entrance of the store. This point is without merit. It is elementary law that contributory negligence becomes a question of law when, and only when, from the facts, reasonable men can draw but one inference, and that an inference that points unerringly to the negligence of plaintiff contributing to the injury. In all other cases the question of contributory negligence is one of fact for the jury. (See discussion and cases cited in DeGraf v. Anglo California Nat. Bank, 14 Cal.2d 87 [ 92 P.2d 899 ]; Parker v. Manchester Motel Co., 29 Cal.App.2d 446 [ 85 P.2d 152 ]; Tuttle v. Crawford, 8 Cal.2d 126 [ 63 P.2d 1128 ].) The exact point now urged by defendant —that the customer is obligated to keep his eyes on the floor—was decided adversely to defendant’s contention in Wills v. J. J. Newberry Co., 43 Cal.App.2d 595 , at page 601 [ 111 P.2d 346 ], where it was stated: “Defendant operated a retail store for the purpose of selling goods to customers. In order to promote sales the goods were displayed on counters to attract the attention of the customers. It should be trite to suggest that a customer could not look at the goods on the counters and at the same time keep his eyes on the floor. Since it was the intention of defendant that its customers should see the goods displayed on the counters, and not have to watch the floor, it should have realized that dangerous substances on the floor would create a dangerous condition and should have acted accordingly.”

The last point raised by defendant raises a most troublesome question. In her complaint plaintiff prayed for $5,000

Before directly discussing the legal point involved, the state of the evidence on this issue should be reviewed. At the trial the plaintiff offered evidence of but two items of special damage—the amount of the doctor’s bill, and loss of wages. The evidence as to the amount of loss of wages showed that such loss was substantial. The evidence on this issue came into the case without objection and defendant’s counsel cross-examined plaintiff at length on this issue. This being so, defendant cannot now object to the introduction of this evidence of special damages. Moreover, whatever may be the law as to the necessity of joining the husband where the wife sues to recover for general and special damages, section 370 of the Code of Civil Procedure expressly provides that a “married woman . . . may sue without her husband being joined as a party in all actions, including those for injury to her person ... or for the recovery of her earnings. ...” This section expressly confers the right on a married woman to sue alone for the “recovery” of her earnings.

This leaves for consideration only the amount of the doctor’s bill, that being the only other item of special damage on which evidence was offered. While the doctor for plaintiff was on the stand plaintiff sought to offer proof that the reasonable value of the doctor’s services was $150, which amount was unpaid. Defendant objected on the ground that the husband alone could sue for such damage. After argument the trial judge overruled the objection and admitted the evidence that such services were reasonably worth $150. This is the only item of special damage involved on this point. Even if defendant were correct on this point,

We turn now directly to a discussion of the right of a married woman living with her husband when she sues to recover for personal injuries, to recover also for consequential damages, such as medical expense. The law is most confused on this subject. There are some appellate court cases holding or implying that even though the wife may, by statute, sue alone for her personal injuries, she cannot, without joining her husband, recover for consequential damages directly attributable to such injuries, because, so it is said, the recovery would be community property, and the husband has the power of management and control over such property. (Redwing v. Moncravie, 131 Cal.App. 569 [ 21 P.2d 986 ]; Martin v. Costa, 140 Cal.App. 494 [ 35 P.2d 362 ]; Meier v. Wagner, 27 Cal.App. 579 [ 150 P. 797 ].) There is at least one early case—Fassett v. Nascimiento, 108 Cal.App. 14 [ 291 P. 269 ]—and several much later appellate court cases, where it was directly held that section 370 of the Code of Civil Procedure, supra, conferring on the wife the right to" sue alone for her personal injuries includes, by necessary implication, the right to recover for consequential damages arising out of such injuries. The leading case so holding, and where the point is adequately discussed, is Purcell v. Goldberg, 34 Cal.App.2d 344 [ 93 P.2d 578 ]. The Supreme Court, without a dissenting vote, denied a hearing in that case. This case was followed in Hyman v. Market Street Ry. Co., 41 Cal.App.2d 647 [ 107 P.2d 485 ], and again a hearing was denied by the Supreme Court, two justices voting for a hearing. (See, also, Ades v. Brush, 66 Cal.App.2d 436 [ 152 P.2d 519 ].) These later cases would be conclusive on the issue were it not for the fact that subsequent to the decision in the Hyman case the Supreme Court decided the case of Sanderson v. Niemann, 17 Cal.2d 563 [ 110 P.2d 1025 ]. In the Purcell and Hyman cases the problem had arisen in factual situations where the wife was injured, brought suit for her personal • injuries, and attempted, in addition, without joining her husband, to recover

After discussing certain other code sections relative to the status of husband and wife with regard to the property

At page 570 appears the following: “Although a few decisions have been rendered in this state wherein, in an action instituted by a married woman, in her own name, for the recovery of general damages for injuries to her person, it was held that she might also recover consequential damages [without citing any of those decisions, and particularly without mention of the Goldberg and Hyman cases, supra],— the weight of authority in this state is to the effect that the right of action for the recovery of consequential damages which may result from financial loss suffered by the community resides in the husband by virtue of his right of control of the community property.” (Citing the Redwing case in 131 Cal.App. and the Martin case in 140 Cal.App.)

It is most important to note what was actually decided in the Sanderson case. So far as the issue under discussion is concerned, all that was decided was that the husband may sue for such consequential damages suffered by his wife, and .that when he sues, the wife is not a necessary party to the action. That is undoubtedly good law. As stated by the Supreme Court, the “primary right” to recover rests in the husband by virtue of his power of management and control over the community property. When the husband is a party he is the one who is legally entitled to recover for such consequential damages. But the very existence of a “primary right” implies the existence of a “secondary right,” and such “secondary right” obviously rests in the wife by virtue of section 370 of the Code of Civil Procedure. That section did not divest the husband of his “primary right” to

Moreover, when a wife is living with her husband, and sues for her personal injuries and likewise for consequential damages resulting therefrom without joining her husband, it may readily be inferred that the husband has consented to her acting on behalf of the community under familiar agency principles. (Ades v. Brush, 66 Cal.App.2d 436 [ 152 P.2d 519 ].) It must be remembered that the wife has a vested interest in the community property. Certainly, under such circumstances, if the wife first recovered for such injuries, and then the husband sought to recover, we would have no difficulty at all in holding the husband was estopped and that his action, if any, was against his wife. That fully protects a defendant. While he has a legal right not to be sued twice for the same damage, he has no legal right to escape liability entirely on a mere technicality. In many eases that would be exactly what would happen if defendant’s arguments were to prevail.

In view of the fact that the point here under discussion was directly involved and decided adversely to the contention of defendant in the Goldberg and Hyman cases, supra, in view of the fact that the Supreme Court did not cite and therefore did not overrule those cases in the Sanderson case, supra, in view of the fact that the holding in the Sanderson case can be logically reconciled with the Goldberg and Hyman cases without overruling those cases, and in view of the sound and logical reasons that support the Goldberg and Hyman cases, we are inclined to follow the rule of those cases until they are directly overruled or until the Supreme Court directly decides to the contrary.

The judgment and order appealed from are affirmed.

Bray, J., and Finley, J. pro tem., concurred.

A petition for a rehearing was denied October 30, 1947, and appellant’s petition for a hearing by the Supreme Court was denied November 24, 1947. Schauer, J., voted for a hearing.