Mrs. Mary Patterson, appellee in
The complaint, in each case, charges that defendant negligently permitted or caused “a bean or beans to be or remain on the
Both cases were triеd together before a jury. There was a separate verdict and judgment thereon in each case in favor of each plaintiff. Defendant brings these appeals from those judgments, and also from the judgment in each case overruling its motion for a new trial. Both cases were submitted here on one record.
The accident complained of by Mrs. Patterson occurred on January 16, 1960, between 6:00 and 7:00 P.M., in defendant’s food store in Mobile, Alabama. Mrs. Patterson entered the store for the purpose of purchasing several items, and had proceeded to the produce department to pick up two cartons of beer. She picked up the beer and was returning to her grocery cart when she fеll. She was knocked unconscious by the fall, and testified that, upon regaining consciousness, she saw two snap-beans on the floor. There is no evidence as to the condition of the beans, and Mrs. Patterson stated that she did not see anything on the floor prior to her fall.
Billy E. Griffin, an employee of defendant at the time of the accident, testified that, at the timе of the fall, he was in the back room of the store, but that prior to this, he had been in the produce section where he had swept and straightened up for inventory; that he had been in the back of the store for approximately ten minutes, but had cleaned and swept the area before leaving, and that at that time, there were six or seven customers аt the produce rack; that when he left the produce section, he did not see anything on the floor, nor did he ever see the bean that Mrs. Patterson said she stepped on.
■ Another employee of defendant, Stanford Gollotte, testified that he had also swept the produce area earlier, and as a matter of practice usually went over and checked the produce area after seeing customers there, to see if they had dropped anything on the floor. That, on this occasion he was busy operating one of the cash registers, and for this reason did not check the produce area although he saw several customers over there.
The principal question on this аppeal is whether there was sufficient evidence to submit the case to the jury. Our conclusion is that it was not error'to deny defendant’s requested affirmative charge with hypothesis in each case, nor to overrule defendant’s motion for a new trial in each case on the ground that the verdict was contrary to the great preponderance of the evidence.
Mrs. Patterson was an invitee of the defendant and the defendant, therefore, was charged with the duty of using ordinary or reasonable care to keep its premises in a reasonably safe condition. The rule is that in an invitor-invitee relationship, the invitor is not the insurer of the safety of its invitees, nor does the principle of res ipsa loquitur aрply. No presumption of negligence arises from the mere fact of injury to an invitee. See: Maybilt, Inc. v. Deese,
The appellant bases his argument on the holdings of this court in the case of S. H. Kress & Co. v. Thompson, supra, and the three
Great Atlantic and Pacific Tea Company
cases, supra. These and other pertinent cases were recently summarized in a well-written opinion of this court in the
“The rule is also well established that if there is evidence which tends to show that a foreign substance has been on the floor for a long while, it is proper for a jury to impute nеgligence to the defendant for not discovering and removing such foreign substance. Great Atlantic & Pacific Tea Co. v. Popkins,260 Ala. 97 ,69 So.2d 274 ; Rowe v. Alabama Power Co.,232 Ala. 257 ,167 So. 324 ; Anjou v. Boston Elevated Railway Co.,208 Mass. 273 ,94 N.E. 386 . So to prove negligence on the part of the defendant it is necessary to prove that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant, or that he had actual notice, or that he was delinquent in not discovering and removing it. In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in the maintenance of its floors. * * *
******
“It is not necessary, however, to enter direct evidence as to the length of time a foreign substance has remained on the • floor; it is permissible to allow а jury to infer the length of time from the nature and condition of the foreign substance. In Great Atlantic & Pacific Tea Co. v. Popkins, supra, wherein the plaintiff slipped on a lettuce leaf, this court stated [260 Ala. 97 ,69 So.2d 276 ]:
« ‘ * * * lettuce leaf was shown to have been dirty, crumpled and mashed. The jury could find from that condition that it had been on the floor long enough to have raised a duty on defendant to discover and remove it. * * * ’
“In the instant case, there was no evidence introduced as to how long the foreign substance upon which Mrs. Thompson slipped was on the floor. For aught .that appears from the evidence introduced, it might have been dropped upon the floor a minute before the appellee slipped upon it. No evidence was introduced to the effect that the appellant or any agent of the appellant knew the substance was on the floor. * * * ”
It is upon this language that the appellant bases his contention for a reversal of the cases. We do not agree.
This court judicially knows that markets and supermarkets today are not like the old time corner grocery store where customers came in at infrequent times, and were waited upon and did not have to “serve themselves.” We also know that often several customers will be selecting produce at the same counter at the same time, and such was the tendency of the evidence in these cases. To hold as a matter of law (that a customer has to spend some of his time looking for beans and other vegetable matter on the floor surrounding the counter and area, where and
while the customer was shopping, would place a higher duty upon the customer than the law requires. First National Bank of Mobile v. Ambrose,
There are many factual matters that are involved in cases such as this — as examples: How old was the plaintiff ? Her general health at the time of the accident? How much did she weigh? Was she wearing high or low heels? Was she under medication at the time that could have caused her to lose her equilibrium? Did she wear glasses ? Bifocals ? How long since they were changed or corrected? What was the condition of the floor as to сolor? Was it a slippery floor, or did it have a non-slippery surface? Countless other matters are important and usually present in such a case as this. All of such, however, are factual and for the
We do not think that what we define as a “stop watch” rule should be adopted by the court in actions such as these by holding, as a matter of law, any particular time shall govern as to whether the sweeping, cleaning, .or lack of sweeping and cleaning is negligence. Each case should be decided upon its specific facts.' We hold the rule to be that no absolute or positive invariable rule can be announced that can be applied to each case, and which will correctly define the duties of store keepers (invitors) in all cases, or the duties of the inviteеs (customers). The duties and liability of the invitor (store keeper), and the duties, risks and rights of the invitees (customers) must of necessity depend upon the circumstances of each particular case. First National Bank of Mobile v. Ambrose, supra. It is the continuing duty of a store keeper (invitor) to exercise reasonable care in the maintenance of his premises used by his invitees (customers) and keep such in a reasonably safe condition. Maybilt, Inc. v. Deese, supra; Southern Minerals Co. v. Barrett, supra; Great Atlantic & Pacific Tea Co. v. Bennett, supra; S. H. Kress & Co. v. Thompson, supra; Great Atlantic & Pacific Tea Co. v. Weems, supra; Great Atlantic & Pacific Tea Company v. Popkins, supra; Kittrell v. Alabama Power Co., supra; Ten Ball Novelty & Mfg. Co. v. Allen, supra; Britling Cafeteria Co. v. Naylor, supra; F. W. Woolworth Co. v. Ney, supra.
Here the evidence must be viewed ■in thе light .most favorable to the plaintiff,
and under the “scintilla rule”- that exists in this jurisdiction these cases were properly submitted to the jury, and the refusal to give the affirmative charge in each case was not error. Great Atlantic & Pacific Tea Co. v. Bennett,
The appellant next contends that the ap-pellees did not prove that the medical expenses incurred in the treatment оf Mrs. Patterson were reasonable expenses, and therefore said expenses should not have been recoverable as elements of damages.
The law in Alabama is clear that there must be proof of the reasonableness of expenses which are not of common knowledge. United Security Life Ins. Co. v. Sikes,
In the - case of Birmingham Amusement Co. v. Norris, supra, the expenses involved were doctors’ bills. The court stated the rule as follows:
“In every case where a party has incurred expense as the result of another’s wrong, only so much is recoverable therefor as is a reasonable and proper amount under the circumstances. Manifestly, the party so claiming must show to the jury what is reasоnable and proper, as a necessary basis for their finding.. If the subject be a matter of common knowledge, and the nature of the charge or expense be before the jury, the sum paid may serve as some evidence of reasonable value in the absence of evidence to the contrary. Birmingham Ry., Light & P. Co. v. Humphries,172 Ala. 495 , 497,55 So. 307 , citing 3 Suth. on Damages (2d Ed.) 2674. Otherwise, there being"no ‘еvidence;to show what is 'a'reasonable amount, the defendant- must, either move for the exclusion of the testir mony as to payment or liability to- pay, at the close of the evidence, or he must ask for an affirmative instruction against recovery in that behalf, as in - other cases of failure of proof.”.
In Alpin v. Dean, supra, the expense involved was a hospital bill, and the co.urt in holding that it was necessary to prove it was a reasonable expense, stated the following :
■“There was no error in permitting the plaintiff to prove the amount of the hospital bill. However,' before - the jury could award him any amount to cover this expenditure, the plaintiff had to show that the -bill or charge was reasonable. - Thе plaintiff could not jprove both the charge and the reasonableness of the same at one and the same time! ' True he must prove both. The natural order is to prove what the charge was, and then prove whether or not it -was reasonable. If, after, proving the amount of the charge, the plaintiff should fail to .offer any evidence tending to show hоspitalization w,as necessary, and the, charge to be reasonable, the-defendant should either move for the exclusion of the testimony as to the charge or bill, at the close of the evidence, or should ask :for. an affirmative instruction against recovery in that behalf, as in other cases of failure of proof. Birmingham . Amusement Co. v. Norris,216 Ala. 138 ,112 So. 633 ,53 A.L.R. 840 ; Birmingham Ry., Light & P. Co. v. Humphries,172 Ala. 495 ,55 So. 307 .”
In the casеs before . us, Dr. Henderson testified for the appellees and stated that his bill for Mrs. Patterson’s treatment was $150. Appellee, Floyd L.; Patterson, testified that the hospital bill incurred by him due to his wife’s injury was $530; that he had incurred an expense of $28.-20 for a surgical brace for his wife;an expense of $36.14 for prescriptions' and
medicines; and that he had paid Dr. T. J. Bender $40 for medical treatment of his wife. None of these expenses was shown to be reasonable, and they are outside the realm of common knowledge. The appellant made a proper and timely motion to exclude these expenses at the close of the testimony. This motion was erroneously overruled by the trial court. Although the trial court erred in making this ruling, we do not believe it necessitates a reversal of these cases. In regard to the case of Mrs. Patterson, the evidence shows, and appellant admits in his brief, that these expenses were those of Mr. Patterson for which he was obligated and accepted the responsibility to pay. Under these circumstances, we hold that these items were not included in the verdict rendered in favor of Mrs. Patterson, but were included in the verdict rendered in favor of Mr. Patterson. They could not be claimed as damages by both parties, and in this case, the evidence
In the case of appellee, Floyd L. Patterson, these expenses were improperly before the jury for their consideration as elements оf damages. However, we do not think it necessary to reverse the case and grant a new trial if the appellee, Floyd L. Patterson, will make a remittitur of the following amounts: $150 bill of Dr. Anderson, $530 hospital bill; $20.28 bill for surgical brace; $36.14 bill for prescriptions and medicines; and $40 bill of Dr. Bender. This is a total of $776.42, and we feel that the judgment is excessive to this extent. In the case of Fergusоn v. Callahan,
Appellant also contends that the damages for medical expenses and maid service are special damages and that they must be claimed as such in the complaint. Appellant also alleges that the following averment in the complaint of Floyd L. Patterson is nothing more than a general averment which will not support a recovery fоr special damages such as medical and nursing expenses:
“* * * [Plaintiff] was caused to incur and expend great sums of money in and about the treatment of said wife and in the future will be required to expend large sums of money in and about the care and treatment of said wife. * * * ”
We agree with appellant’s proposition of law that such damages must be alleged in thе complaint. Mobile City Lines, Inc. v. Proctor,
The word “treatment” would seem to clearly cover such things as doctors’ bills and nursing expenses. In other situations, this court has given the word “treatment” a broad construction. Hester v. Ford,
We find no reversible error in
A judgment will be entered here in
Affirmed as to
Affirmed conditionally as to