Medallion Stores, Inc. v. Eidt

ginning September 22, on and interest * * past due installments appeals, contending jury’s

Plaintiff finding:

answer to Issue 4 “2 or 7 days use, temporary

weeks” am- loss of so

biguous judgment and uncertain that a predicated has

cannot be thereon. Plaintiff

brought Facts. forward no Statement of

In the absence of a Statement of

Facts, it presumed appeal must supports findings judg

ment of the trial Lane Fair court. v. 683; 150 Tex. 243 S.W.2d

First Herring, Nat. Life Ins. Co. v. CCA

(n. 119; h.),w. Ehrhardt v.

Ehrhardt, CCA, Er.Ref., 37. 368 S.W.2d argument,

Defendant’s counsel on oral

however, conceded mathematical error

computation judgment in the amount

of $21.00. $398.23, is reformed to reformed, appeal is affirmed. Costs against appellee.

assessed

Reformed and affirmed.

MEDALLION STORES, INC., Appellant,

T.W. EIDT, Appellee.

No. 7714. Appeals

Court of Civil of Texas.

Texarkana.

May 31, 1966.

Rehearing July 5, Denied Pew, Walker, Jr., Jackson, Win- Jack

stead, Miller, Dallas, appel- for Cantwell & lant. Carter, Gallagher, Gallagher,

Charles Dallas, Magee, appellee. & Jones FANNING, Justice. appeal

This is an a verdict and appellee, customer in favor of appellant’s store, injuries sustained tripped when he the corner of a dis- play platform that constituted bound- ary of one in the store. There aisles finding liability was one and one against appellant: appellant, pellant’s Mason, question, employee, time and on the “had occasion witness and Miss display platform developed, among things, testimony without merchandise or other thereon”, objects resting tangible purpose other to the art of of dis- negligence play which act was and a to attract the attention of customers. 3) (Special Appel- cause. 2 and issues ques- type timely steps complied lant has with all the tion Exhibits Nos. is shown Defendant’s appellate process. points in the The of 1, 2 3, photographs the interior of presented germane here as- error are store; appellant’s appellee’swife measured signments appellant’s judg- in motion for height platform of the inches and at 4¾ ment non obstante veredicto and to disre- platform feet estimated that the was 3 or 4 special issues, gard certain its amended mo- long. wide and 5 or 6 feet trial, tion for new or both of them. undisputed It was that the color of the Appellee appellant’s into went store platform contrasted with the color of the purpose purchasing a television set. lighted. floor and that the store was well proceeding He and his wife were down an testimony There was to the effect that the depart- aisle in search of display platform type was of a standard ment; way display on his he noticed a stores”, used in “plenty of which “mighty dishes which he thought was disputed. testimony There was also pretty”; displays merchan- various change effect that stores displays their or placed upon platforms dise were and were display platforms. arranged to attract the attention of the The jury response 4,10 in to issues and 11 (cid:127) displays; customer to the one of various found to the (4) effect: that the failure of platforms “display these or had no islands” defendant to use a boxed appellee merchandise on it and while look- bottom, in at the at the time and on the oc- ing upwards signs towards in the television question, casion in negligence, (10) was not department being told his wife after that at the time and ques- on the occasion in them, tripped where to look for over the platform tion the display question in did platform “display or island” had no which an constitute unreasonable hazard to the objects upon injuries and received his purchasing public, plaintiff (11) tripping platform. over said He did proximity time he reached the of the platform display not see the island and or platform in did not have full had not been in the store before. He testi- presence. of its looking fied that he was toward the tele- department signs tripped vision when he There is no evidence or contention that over but further testified to platform question properly was not guessed the effect that he could aligned platforms with the other which have seen it if he had been down constituted the boundaries of the aisle. up. ac- instead of His wife did not photographs We have examined the The Crawford testified cident. witness platforms in the interior appellant’s store Eidt the accident and saw saw Mr. platforms and conclude that plain- are platform display trip or island. visible, ly open and are and obvious to testimony also to the effect that There was anyone might who choose to look at them. changing the employee of the store was The evidence is undisputed likewise question; platform how- on platforms plainly are visible. being the immedi- this was not done at ever tripped over the time Mr. Eidt ate when Appellee, appel a customer in question, however after lant’s was an invitee. A. C. Burton placed were accident merchandise boxes Stasny, Tex.Civ.App., Co. v. 223 S.W.2d Appel- platform display said island. on (1949). writ refused A retail store is attorneys, ap- lee’s cross-examination of not an insurer of its invited customers. Pierce, 2d (1950); Genell, Parker Food Inc. Tex. A.L.R.2d 853 ref., Civ.App., Flynn 632], wr. n. r. e. Inc. v. S.W.2d Tex. 358 S.W.2d [163 liability, protect (1964). any, duty The if must store’s His his predicated showing upon breach invitees dangers he, of a of which duty. Stasny, occupier, knows, of a A. Burton (because C. Co. v. of his supra. (223 310). he should inspect) which know ordinary care. exercise If there The contains invitee’s case at least three open dangers are which are not described essential elements. first obvious, a duty he is under to take such Torts, 2d fol- Restatement of § precautions reasonably prudent per aas lows. protect son would take to invitees them possessor therefrom to warn thereof. But subject land to li- “A open dangers there ability physical harm are obvious caused to know, if, they which the or of which by a invitees invitees condition the land if, charged knowledge, are then the but he with occupier duty’ ‘no to or owes them warn by “(a) or the knows exercise of so, protect This is the to the invitees. reasonable care would the con- discover duty’ say, cases there is ‘no to because dition, realize it in- and should things already person warn a of knows volves an unreasonable risk harm to or dangerous or of activities conditions invitees, and such open which and obvious that as are so charged a he will be with matter law “(b) expect they should will appreciation and thereof. danger, realize the not discover or Harvey Seale, v. 362 This Court said protect against will fail to themselves (1962): S.W.2d 310 duty is no whatsoever ‘And there fails “(c) to exercise reasonable so respect with to conditions are protect against them care to the dan- open dangers obvious, therein with ger.” apparent,

so the same are words, the “is In other invitee appreciated by the should be known presence prove under the of a right a burden to no to enter who has One visitor. danger premises and on the that the owner except the by virtue of landowner’s ought premises knew have known of that dan to the remain off consent can Co., ger.” Kirkpatrick Tex. Camp v. H. subject himself to not to wish does J. 413, ref., wr. e. Civ.App., n. r. 250 S.W.2d such conditions. injury risk of place, if the (1952). even opportunity In the second exer- Where he has an danger one that constitutes a condition is as to intelligent choice whether cise ought entry to have by of which the owner knew gained advantage to be known, incurring is not unless owner liable the store justify is sufficient duty” doc can overcome “no invitee owes him risk, landowner Halepeska see v. trine. connection In this him from harm.’ duty protect further Inc., Tex., Interests, 371 S.W.2d Callihan here throughout [Emphasis added.] 368, it was stated: wherein 362 at 312-313. S.W.2d against duty’ by is this: the oc “So in a an invitee ‘no doctrine suit

“The premises required occupier, cupier only prove must of land or the invitee premises proximate reason that he keep injured his land or a as a result was prem- This ably encountering for his invitees. a condition on safe condition occupier inspect involving ises duty an unreasonable risk includes a harm, prove, as dangerous part he must also discover conditions. but plaintiff’s case, occupier Tex. S.W. Henger, 148 226 Smith v.

421 spects appellee’s pre- remotely a take similar to owed him reasonable even this see C. Pen- protect cautions warn him or him from accident. In connection J. 385, e., 5 plaintiff nega- ney Company Norris, 250 F.2d Cir. danger, such i. must v. duty’ duty.’ (1957), plaintiff slipped re- on a tive ‘no This is the ‘no which stairway in Academically, cap descending in the it bottle a ferred to cases. while may clumsy but circuit concept, be rather it is and where the defendant’s negligence still the law. Bank v. court held that no shown Houston National was Adair, person testimony fallen Tex. 207 S.W.2d that another (1948)”. steps on such seven months earlier. Also Reynolds White, Huff v. Tex.Civ. & place and.in the third there can be no liabil App., (1964). 378 S.W.2d writ ity negligence complained unless appellee tripping over the circumstance injuries. cause of the invitee’s danger platform no evidence of Hazelwood, Baumler v. Tex. falling prove “the does not mere fact of S.W.2d 560 * *” * presence Camp danger Kirkpatrick Co., supra, H. carefully After reviewing the record in J. 413).

this cause is our opinion judg- it

ment trial court should be reversed nothing” and that a “take should Even if it be assumed defendant-appellant rendered favor of something dangerous there was about the following reasons: upon platform display objects without appellant and that knew or have should proba 1. There nowas evidence of danger, any, known of it is our such

tive force in the record to show it that was undisputed view that of this under facts dangerous appellant large, to a have case, objects without display platform, (as standard shown this upon it, any possible dangers incident and record) plain sight, in without merchandise thereto, open, obvious, plain sight, in were tangible or other objects In thereon. this clearly perceptible. under and Therefore the following connection see authorities: 61 duty” appellant the Texas “no had doctrine 122; A.L.R.2d Safeway Smith v. invitee, protect duty appellant, Inc., 206 264 (D.C.App., 1965); Eng A.2d alleged dangers from the which were clear dal v. Drug Co., 100,48 Owl 183Wash. P.2d ly Slade, perceptible and obvious. Steele v. 232 (1935); Letiecq McKay v. Denholm & Tex.Civ.App., 353 writ refused S.W.2d Co., 328 Mass. (1951). N.E.2d 86 Halepeska (1962); Callihan, supra (271 v. in this 368). S.W.2d Also connection see pro 2. There was no evidence Supply Company Camp Western Auto bative force in the record to that show bell, Tex., which 373 S.W.2d 735 (1964), appellant knew should have that known following quoted approval the lan with dangerous it was display plat such have Bohlen, guage in the Law from “Studies tangible form without merchandise or other Torts,” p. 183: objects In thereon. this connection see Camp Co., than Kirkpatrick supra (250 higher v. H. “The rises no owner’s J. 413). appearance nothing making S.W.2d was conform There which that of prior appellee’s reality, making occurred as which to the the condition accident might looks, suggestion, warning good bringing have served as to the as it appellant, or notice that it is as bad visitor display objects upon it, might visitor, having right without as it is. dangerous. There premises, was evidence that a to find enter the is entitled prior visit; in appellant’s only accident occurred it he is entitled safe for his prior not suggested may store but it was that said its real condition so that know any in any accept accident was manner or re- intelligently up in make his mind to reject permission the owner's to enter Proximate cause “embraces at it.” 738.) concepts, least distinct two both of which Appellant did not display plat- present: conceal must be (1) there must be cause in from appellee; fact, form it hidden produces was not a cause which an event —a - trap snare; appellant any did not in and without which the events would not way occurred; obscure the fact display plat- (2) have foreseeability.” form had tangible no merchandise or Hazelwood, other Baumler v. 162 Tex. objects resting Appellant thereon. made S.W.2d 560 good as looked, condition it and one “proximate Appellee’s theory on the who would look, choose to clearly could duty” questions “no as the cause” as well clearly what was perceptible, clearly upon “attractive dis- this case based open and obvious. Penney C. play” cases, Pewatts v. such as J. 736, Dist.Ct.Penn. Company, F.Supp. appellant 4. Even if it be assumed that appellee’s position this (1965). To show display plat- having a negligent “in regard reference with tangible or other without merchandise form ap- quote part cause we thereon”, is our objects resting it view pellee’s brief, as found below.1 cause the undisputed facts this under the appel- proximate cause of same was not dealing cases have found no Texas We injuries. lee’s fall and Ap display" theory. with “attractive proxi considering “In evidence jacent empty platform. While so only Appellant considers mate cause dishes, Ap- looking display of at it is favorable which pellee’s here’ it said ‘here wife only are inferences draws therefrom up Appellee either and was looked again says Appellant to it. favorable hanging sign looking Appellee down was not ceiling display of tele- or the response to his he looked because straight tripped sets ahead when vision had located she statement wife’s pointed As out heretofore fell. department. However, he the television proper from the evidence inference up looking he at also testified that was turning Appellee in the act of that was sign hanging from ceil the television ing. Appellee the completed right turn to the admiring dis had been the attempting down the to walk was platforms play of dishes on other the walking when aisle in which was his wife along was the so that his attention aisle right caught corner under the foot empty platform lo from the distracted throwing empty platform him for- of the aisleways. of two the corner the cated he four extent that stumbled ward to the Appellant told Miss Mason testified that by steps, fell the side of then five looking at the television her he was unequivocally stated his wife. Can it be immediately displays prior to fall. this upon placed that if had been merchandise Ap- question it be without Can pellee said platform, Appellee not have the would display would not seen have his turn? Would seen it when made empty platform of merchandise the peripheral vision it been within the have display had been there? if such Appellee he looked as as ***** walking Reason- the aisle? was down “Appellant An the situation. created Therefore, able could differ. minds empty placed display platform at the was question proximate of fact cause was a aisleways. of Merchandise corner displays two by jury. the to be determined placed upon plat- all were other says employee “Appellant was signs departmental forms in the area and changing in of the merchandise the act ceiling hanging from the to ob- were be Appellee display the at the time entered by entering customers served the store. However, there is no evidence store. Miss Mason that the merchandise testified removing began employee the when the platforms displays placed upon were the display which had thereto- merchandise attractively possible as so that cus- as any had, on the fore been walking in tomers aisles would be the in the record and there is Appellee attracted to them. while walk- display as to a new merchandise when ing looking aisle down the at and was only placed upon platform. admiring display the The was dishes that were the upon platforms immediately placed immediately ad- after evidence is that pointed pellant its brief has out one out was no evidence of causation in the testi- of state case its discussion of “at mony of Mr. Crawford. Mr. Crawford’s display” theory. quote tractive part We description ap- the accident was appellant’s from brief as found below.2 pellee walking “pretty was fast” ahead of “tripped” corner

his wife and over the testimony display platform. Appellee’s fact” question of “cause On The not following did make the observations. the effect that he point we on the is to wife, fall, not appellant’s who did that he was testimony him to caused know what after fall, signs no evidence see her husband television looking up at proved the testimony only causation. Her to the effect statement his wife’s accident, There department, fact of the not cause. location of the 2. “The first her 206 A.2d 264 and gested, is in which such a ped case is Smith v. dence of tangible objects resting tute, the platform store plaintiff-invitee undisputed mate cause was a fact jury. appeal, ny, walking straight other. Pewatts v. J. C. south matter tomers in a store do not tary was, the east-west injury, (as here) empty platform was situated. fall the (as here) observe the case at a admiring gard “In “Under the evidence “The “Appellant customer sufficient injured ^[*] over a injuries. single brought passage alongside turn in in and of was a owner? aisleway * * * and a and it was bar and should F.Supfp]. 736, supra. is, for a empty platform, employee placed had no ‘merchandise or other whatever Smith the merchandise display circumstance that the in some manner common and there was ^[*] while therefore, empty question presented by cause in fact of going created the situation store suit fact (D.C.App., 1966.) The evidence showed that ” We aisle-way departmental sign at the fasten itself, thing question. indisputable facts, had case, or when walking rack in a against question Safeway know was not cause. ^[*] there held that has even been produced have a condition which liability upon corner where under the above negligence. plenty question thereon’ one aisle Penney Compa- this case some boxes on execute a to the north- down the aisle situated as the store for plaintiff trip- crowded, grocery existed turning foreseen that ^[*] displays rack, Appellee’s that cus- failing of room one case no It display consti- to an- proxi- in the would in re- store while ^[*] Inc., mili- does sug- that The this evi- the it tion firmed. The trict of Columbia The trial ly lighted, nothing tended, of shelves, thereby clearly obscure its dinarily (as careless plainly with it. markets for vice, volved conceal placed sufficient shopkeeper gent his for gence. the aisles, of defendant’s 306 U.S. D.C. favorably and maintain his titled Jackson v. ever, fendant’s the evidence potato ‘The ‘The rule is well shopkeeper directly through here) for a directed require submission of the the use customers’ (as injuries resulting A.2d shopkeeper when such as the however, we visible on or about used In here) herein, customarily And where an person chips judge observable with its 265, emphasis added.) motion applying a a outlines. passageways going by, find someone Capitol every legitimate 99 F.2d of his customers. should not be found appellate of a well-lighted position presence reasonably rack was must be construed were since law does not the store was safety, granted 59 S.Ct. from negligence making is not an insurer premises, display for a directed shopkeeper Court of potato verdict, plaintiff, Transit that rule (as it.’ the rack placed settled that eyidence heedlessly injuring court and is liable here) from his it safe condition rack ‘was chip ordinary plaintiff con- and the including cert, a few merchandise, Co., outlines, nothing Appeals store’s who is held: possible goods n impose prevent here, A.2d is to tending there was inference. However, sufficient adequate- himself.’ used ” rack collides sort verdict, denied, on de- negli- negli- L.Ed. lower with 265.) how- jury. most App. keep bags only Dis- and mo- the de- en- in- or- af- guessed platform that he he could have seen tive to surmise that if the had it, display objects upon if had been had some that this appel- have would diverted re-diverted down. same, attention to in order lee’s to cause entirely speculative think We it is too down, especially him to look when it guess or surmise that if there been apparent that both at his own intent and platform items on by statement, also reason of his wife’s appellee’s accident, at the time of up looking up wanted to look and was appellee’s same would have at diverted department. locate the In so tention and him look caused down doing, platform he failed to look at the tripping see the and avoid visible, clearly open which was' and obvious running especially into when he was clearly perceptible anyone to. who chose intent locating department the television to look it. Could entire chain and had by heard the statement made reasonably by events have been foreseen wife, and when he wanted look appellant, prophetic short of ken? We looking up. holdWe there was Railway think In Texas & Pacific not. ques evidence of “cause fact” on the 223, Bigham, supra, (90 Co. v. Tex. S. of proximate tion cause. In this connection 162) it short W. was stated: “[N]othing Baumler Hazelwood, 162 Tex. prophetic anticipated ken could have (1961), 347 S.W.2d 560 Reynolds & happening of the combination of events White, Huff v. Tex.Civ.App., 378 S.W.2d person injury which resulted in the of the no writ plaintiff.” respect With to the “foreseeabil reasons, in and foregoing Each of the ity” aspect proximate cause, it is our itself, require judgment would further view that there was judgment of the trial court be reversed probative support force finding appellee here be noth- rendered that take the defendant-appellant could have ing appellant. Appellant’s points foreseen injury plaintiff-ap- questions which raise the above discussed pellee would alleged neg result from the are sustained. ligence; any negligence. there was In this connection see the following author reasons above For each and all of the ities: Texas & Pacific Big Co. v. Railway stated, judgment of the trial court ham, 90 Tex. 162 (1896); S.W. reversed and is here rendered Genell, Flynn, Inc. v. 163 Tex. appellee nothing appellant. take (1962). Appellant S.W.2d 543 was re

quired to Reversed and appellee foresee that rendered. would enter required but it was not to fore see the chain of circumstances that caused CHADICK, J., concurs. C. injuries. appel We do not think that lant can properly charged be with the abil DAVIS, J., dissents. ity appellee’s to foresee that attention would diverted to such an extent either his wife’s statement or his intent de own DAVIS, Justice. department, sire to locate the television study the law A careful lighted appellee that in a I dissent. well would I would trip large and facts will reveal otherwise. over the corner and obvious unusually specula judgment. and it affirm the would be

Case Details

Case Name: Medallion Stores, Inc. v. Eidt

Court Name: Court of Appeals of Texas

Date Published: May 31, 1966

Citation: 405 S.W.2d 417

Docket Number: 7714

Court Abbreviation: Tex. App.