20 A.2d 722 | Conn. | 1941
The complaint alleged negligence by the defendant in waxing the linoleum floor of its office so heavily as to cause wax to cake on a heel of plaintiff's shoe, because of which she slipped and fell on a tiled floor in defendant's vestibule. The jury returned a verdict for the plaintiff, and this appeal is from the denial of a motion to set it aside.
The first question is whether the jury could reasonably have found that the defendant was negligent in the maintenance of its public offices. There was evidence that the linoleum floor of the office where the plaintiff paid her telephone bill was heavily waxed; that the wax was heavily applied and that the floor looked very glossy and very slippery. While talking to one of defendant's clerks she stepped off of a rubber mat three feet wide, which extended across the linoleum *134 floor from the vestibule to the counter, onto the waxed linoleum, and stood there about fifteen minutes. As she turned away from the counter to leave, her right foot slipped, leaving a heel mark upon the linoleum. She put her right hand on the counter in order to save herself from falling. She then walked on the mat to the vestibule, and when she stepped onto its tiled floor she slipped and fell, receiving serious injuries. Thereafter it was found that the entire heel of her right shoe was covered with wax. The jury could reasonably have found that while the plaintiff was standing at the counter some of the wax from the floor accumulated on her heel and by reason thereof when she stepped onto the tile she slipped and fell.
The defendant relies on Smith v. Union New Haven Trust Co.,
The defendant further claims that the plaintiff failed to give it a written notice containing a general description of the injury, and of the time, place and cause of its occurrence, as provided for in General Statutes, Cum. Sup. 1935, 1684c, in force when this action was brought but since repealed. We have no occasion to decide whether the written reports made to the defendant by physicians employed by it to examine the plaintiff, upon which she relies, was such notice given by her or on her behalf as would satisfy the statute. Being for the benefit of the defendant, the notice is a protection upon which it may insist, but one which it may waive. Lee v. Casualty Co.,
There was evidence in support of the following facts: The defendant had immediate notice of the injury, for its employees picked the plaintiff up and a doctor called by it removed her to her home. The next day the defendant's local manager called at her home. He knew all about the accident, and told her everything would be taken care of. She was taken to the hospital in an ambulance hired and paid for by the defendant. On March 26, 1938, two days after the accident, the defendant caused an examination of the plaintiff to be made by its physician. On April 9th the defendant's insurer caused another examination to be made. In August the plaintiff had to go again to the hospital. Before going she notified the local manager, who told her to go and he would notify the company. Shortly before the expiration of the six months' period the plaintiff and an adjuster for the insurer had telephone conversations, and he suggested the matter of adjustment be put over until he could obtain a reexamination of the plaintiff. Shortly before September 29th, he requested a doctor to examine the plaintiff; on that day the doctor wrote him that he would proceed with the matter and on October 1st, after the expiration of the six months' period, the doctor did examine the plaintiff, with the understanding that the examination was being made so *137 that the adjuster would be in a better position to discuss an adjustment of the case. On November 30th he called on the plaintiff and discussed the case with her. Neither in the evidence nor correspondence does it appear that any claim of lack of statutory notice was made until it was pleaded as a defense. On the contrary, the plaintiff was requested to forward all bills in connection with her injury. The adjuster later requested further information as to payments she had made for help. On January 29, 1939, more than ten months after the accident, he notified her that it was not a case of liability. From this and other evidence the jury could reasonably have found that the defendant never had any intention of claiming lack of notice until the case came into the hands of its attorney, and that the conduct we have recited was inconsistent with a claim that for the long period the adjuster was handling the matter the defendant was intending to insist upon the lack of written notice which would relieve it from liability. The defendant already having waived its right to rely upon a written notice, the claim that it was not a case of liability was an attempt to change its position. "But rights once waived cannot be regained by revoking the waiver." Lee v. Casualty Co., supra, 208.
There is no error.
In this opinion the other judges concurred.