62 P.2d 1285 | Mont. | 1936
Plaintiff's action was predicated upon the theory of an overt act of negligence upon behalf of the defendants. The gist *423
of the negligence charged is the existence of a dangerous condition of defendants' own making — the placing of the box on the floor, maintaining it there, and failure of inspection and warning. No allegation of notice is contained in the complaint and under plaintiff's theory of the case counsel contended none was necessary. (Robinson v. F.W. Woolworth Co.,
The principle that "when a party intentionally creates a condition he is held to have knowledge of it and notice is not necessary" (Robinson Case, supra) has no application here. The record is absolutely devoid of any proof or any inference from which a presumption can be drawn that any servant, agent or employee of the defendant company placed the box in the position it occupied at the time of the alleged accident. One must of necessity speculate to formulate an answer to the inquiry as to who placed the box on the floor in the aisle. Hence there was a failure of proof in respect to the charge of negligence of the complaint that the defendants placed the box on the floor in the aisle. (Collins *424
v. Crimp,
From such knowledge of the position of the box as the clerk, Barry, testified to, it cannot possibly be held as a matter of law that the defendant company had constructive notice through him, as the box in the position and place that he observed it did not suggest to him the possibility of its being the cause of injury to anyone, or any reason for changing its position. (Dudley v. Abraham,
It has long been established that the trial court should instruct as to the use of the annuity tables, and where the evidence is conflicting as to whether the injuries of plaintiff are permanent, an instruction as to such tables should inform the jury that they are not to be used unless the injury is permanent. (Randall's Instructions to Juries, sec. 352, pp. 647, 648;Cornell v. Great Northern Ry. Co.,
Misconduct of counsel: The attack upon counsel for defendants and the manner thereof was so virulent that the entire proceedings after the first reference to the invoice in the testimony was such as to completely taint the entire case, and no admonition of the court and no instruction of the court could remove the prejudice created thereby. (Mangino v. Bonslett,
The record uncontradictedly discloses that the plaintiff was in possession of her faculties; that she knew the store, knew the location of the wares, and the methods used therein, in the transaction of the business. Yet, she claims that she did not see the box, or boxes, in the display section. This indifference and inattentive state of mind was undoubtedly the cause of her striking the box. An excellent summation would be negligence through inattention, or negligence by indifference. Judicially it has been declared to be "abstraction." And such abstraction defeats the right of action, as it is a proximate cause of the injury. (Reynolds v. Los Angeles Gas Elec. Co.,
The store was one of the type commonly designated "self-service." The tables, counters and floor displays were so arranged as to form aisles for the use of customers, who might themselves proceed to any part of the store for the purpose of selecting merchandise displayed therein. Just inside the main entrance there was a rack of shopping baskets for the use of customers. A customer, upon entering the store, could take one of the baskets and proceed around the store selecting the items desired for purchase. As selections were made the merchandise was placed in a basket, and when everything desired was selected, the basket was taken to a wrapping or checking counter near the center of the store, and everything taken from the basket, checked and wrapped by an employee of the store.
On February 15, 1935, shortly after 5 o'clock in the afternoon plaintiff with a friend, one Margaret McLeod, entered this store for the purpose of purchasing groceries. Each took a shopping basket and proceeded to different parts of the store to select the items desired; there is some conflict as to just where each of them went in the store. However, it appears that Mrs. McLeod was the first to assemble her selections. She thereupon carried her basket and its contents to the wrapping and checking counter. At about the same time plaintiff, having selected all of the grocery items she desired, walked toward the front of the store where the vegetables were kept for the purpose of selecting a head of lettuce. There is some conflict in the evidence as to whether she carried the shopping basket with her at this time, or had left it on the wrapping counter. She testified that when she fell, she had the basket and her purse in her hands. In any event, after choosing the head of lettuce she turned from the vegetable rack and started to walk back down the aisle toward the wrapping and checking counter. She had gone only a few *427 steps when she stumbled over a box and fell to the floor. While there is some conflict in the evidence on the point, it is fairly clear that the box over which she stumbled was sitting against a display counter and protruding somewhat out into the aisle along which she was walking. The box contained twelve quart jars of Miracle Whip salad dressing. It was a pasteboard box 16 1/2 inches long, 12 1/2 inches wide, and 7 1/2 inches high. It was sealed and unopened and had apparently been recently delivered to the store by the Montana Service Corporation.
The defendant Stafford, the manager of the store, was not in the store at that time; he had gone off shift at 5 o'clock. There were three clerks on duty — Harold Heinicke, Howard Casey and Lindley Barry. Heinicke was head clerk, in charge while Stafford was absent. Barry testified that he had passed down the aisle and had seen the box sitting against the display counter about five minutes before the accident. The other two clerks said that they never saw the box at all until afterwards.
There was some conflicting testimony as to the number of boxes; however, plaintiff testified that there was only the one over which she tripped. None of the three clerks knew who had placed the box at that place; none of them had seen the Montana Service Corporation deliveryman bring such a box into the store; and none of them had signed the delivery receipt for the box or the merchandise which it contained. There is no direct evidence as to who actually received this merchandise and signed the receipt for it.
A delivery receipt was finally obtained from the Montana Service Corporation and introduced in evidence. It showed that a box containing one dozen quart jars of Miracle Whip had been delivered to the store on that day, and that the delivery receipt had been signed with the initials "G.S." It was also shown that such merchandise, when received at the store, might have been received and receipted for by any of the clerks or the manager; that such goods were *428 always "signed for" when delivered; and that the deliveryman for the Montana Service Corporation would not leave merchandise unless "signed for." When merchandise was thus received in the store and "signed for," one copy of the invoice was kept by the store and one copy was retained by the truck driver who delivered the goods.
While there was conflict in the evidence as to the width of the aisle through which plaintiff was walking when she fell, it appears to have been approximately five feet wide. Plaintiff testified that she did not see the box and did not know of its presence or that it protruded out into the aisle, until she had fallen over it. It appears that the store was quite well lighted at the time; that it was still daylight outside; that there were also at least four strong electric ceiling lights burning; and that one of these lights was situated immediately over the aisle in which plaintiff fell. It further appears that at the time of the accident there were some fifteen or twenty people in the store, and that it was one of the busiest hours of the day.
Evidence was introduced to show that plaintiff had previously on many occasions visited this particular store, as well as other stores of the same type, and that it was customary for such stores to display potatoes, apples, boxes of oranges or onions, etc., all around on the floors, setting them on the floor alongside the display counters.
While the record discloses a great deal more evidence similar in nature to that outlined above, a more extended recitation thereof is unnecessary for the purposes of this opinion. The cause was tried to the court sitting with a jury. Defendants' motions for nonsuit were denied, and the matter was finally submitted to the jury with instructions from the court. The jury returned a verdict in favor of plaintiff for $12,000; judgment was entered thereon; motion for new trial was made and denied, and thereafter appeal perfected.
Defendants' specifications of error present several questions[1] for determination. The first proposition concerns the *429 court's refusal to grant defendants' motions for nonsuit. They assert that plaintiff's action was predicated upon the theory of an overt act of negligence on the part of defendants, viz., the placing of the box on the floor, and allowing it to remain there without proper warning. They point out that the complaint contains no direct or specific allegation that defendants had notice of the condition, and that there was no proof that defendants placed a box in the position referred to, or that they maintained it in such a place. Accordingly they argue that plaintiff is in the position of one who charges another with negligence because of a failure to remedy a defect not of his own making; that if in such circumstances plaintiff is to prevail, the complaint should allege, and the evidence establish, that defendants had knowledge of the dangerous condition, or that such a condition existed for such a length of time, without being remedied, as to charge them as a matter of law with knowledge thereof. The contention thus advanced constituted one of the principal grounds urged by defendants in support of their motions for nonsuit.
Considered as an abstract principle of law, this contention is undoubtedly correct. (See McEnaney v. City of Butte,
The next question raised has to do with the admission, over[2, 3] defendants' objection, of a mortality table to show the expectancy of plaintiff's life. In admitting it the court said: "This is a matter that is generally taken up in connection with instructions." The court also stated that "the proffered table is admitted in evidence, subject to instructions to be given to the jury at the close of the trial. Gentlemen of the jury, the expectancy of life of a female of the age of 34 years is 32.42 years." Defendants now complain that no instructions regarding this matter were later given to the jury. They contend that the court, after *431
admitting the table in evidence, should have instructed the jury as to the applicability of the annuity tables; and that where, as in this case, the evidence is conflicting as to whether the plaintiff's injuries are permanent the court should have instructed the jury that such tables were not to be used unless the injuries were found to be permanent, citing Cornell v.Great Northern Ry. Co.,
Under the authority of the case of Stephens v. Elliott,
Defendants predicate error upon the court's refusal to permit[4] the introduction in evidence of a certain X-ray photograph. It was claimed to be a photograph of a normal pelvic cavity. Defendants proposed to have it introduced in evidence for the purpose of comparing it with X-ray photographs of plaintiff's pelvic cavity. It is unnecessary to decide whether the photograph might, under proper circumstances, have been properly admissible in evidence for purposes of comparison as *432 proposed by defendants. Here the record discloses that Dr. Kane, witness for defendants, who identified the X-ray photograph as one taken by him, did not know or remember the person of whom the X-ray photograph was taken; he did not know whether it was of a man or a woman. In such circumstances it cannot be said that the court erred in refusing to admit the X-ray photograph in evidence to be compared with those taken of plaintiff.
Defendants contend that the evidence is insufficient to[5] sustain the verdict and judgment, and that the verdict is against the law. They suggest that under the evidence disclosed by the record, plaintiff was, as a matter of law, barred from recovery because of her own carelessness in failing to see the box over which she fell, and that she could have seen it if she had been looking. Thus they assert that plaintiff's own case raised a presumption of contributory negligence, that it therefore devolved upon her to refute such presumption, and that she failed to satisfy that requirement. In support of their position they cite and rely upon the rule adopted in the case ofAutio v. Miller,
The question of contributory negligence in cases such as this one is quite generally held to be one for determination by the jury. In addition to the authorities already cited, seeMontague v. Hanson,
As we have already indicated, there was sufficient evidence to go to the jury upon the question of defendants' negligence. We are likewise of the opinion that the question of contributory negligence was, under the facts and evidence disclosed by the record, a proper question for determination by the jury
Defendants predicate error upon the court's refusal to give[6] certain instructions to the jury. In view of the conclusion reached in this case, we deem it unnecessary to make any extended discussion of the questions thus raised. In most instances we find that the proposed instructions contain a correct statement of the law applicable to the case. However, the principles enunciated therein were specifically, or in effect, substantially covered in other instructions which were given by the court. In such circumstances defendants cannot be said to have suffered any prejudice by reason of the court's refusal to give the particular instructions in question. (Simons v.Jennings,
There remain but two other specifications of error which we[7] deem of sufficient importance to warrant special consideration. The first one is to the effect that the verdict was excessive and was given under the influence of passion or prejudice, and the second one has to do with a controversy which arose between counsel during the course of the trial and which resulted in accusations by one of plaintiff's counsel against defendants' counsel, whereby counsel for the defendants was accused of withholding and suppressing evidence. *434
The question of excessive verdicts alleged to have been returned under the influence of passion and prejudice was treated by this court at some length in the recent case of McCartan v.Park Butte Theater Co., ante, p. 342,
The matter of misconduct of counsel and the prejudice resulting therefrom has been discussed by this court in several recent cases. In the case of Vonault v. O'Rourke,
The record discloses that apparently the Montana Service Corporation in delivering merchandise to customers used duplicate or triplicate copies of such bills or invoices. Upon one copy thereof it was customary for the receiving merchant to indorse the receipt of the goods. The copy left with the defendant store was apparently in the possession of one of counsel for defendants. In the course of the trial counsel for the defendants admitted that he had such a copy in his possession, and upon request of counsel for plaintiff said that he would bring it into court. Later, however, he asserted that his copy was not an original, that the original was available to plaintiff in the possession of the Montana Service Corporation, and that counsel could secure it for introduction in evidence, and he then refused to bring his copy into court. Briefly, the controversy seemed to rage around the question of who should produce the invoice. Counsel for plaintiff apparently desired to have the copy in the possession of defendants' counsel brought into court in order to show the indorsement of the receipt of the goods, by whom received, and the time of the receipt therefor. He demanded that opposing counsel bring his copy of the invoice into court. The court refused the request and read section 10586, Revised Codes, to the jury. That section reads: "If the writing be in the custody of the adverse party, he must first have reasonable notice to produce it. If he then fail to do so, the contents of the writing may be proved as in case of its loss."
Apparently all copies were finally brought into court, but that did not satisfy the participants. Quite a spirited and acrimonious controversy took place between counsel and was continued from time to time. A part of this controversy occurred without the presence of the jury, but a considerable part of it either actually occurred before the jury or was brought to the attention of the jury by remarks of counsel in the course of the trial and later in the argument to the jury.
A serious feature of the controversy involved a statement made by counsel for the plaintiff in the presence of the jury *436 in connection with the attempt to force opposing counsel to bring his copy of the invoice into court. That statement was as follows: "If I can prevent it you are not going to hide this lady's case from this court and jury." The court did not then nor thereafter warn the jury to disregard the matter or instruct it that no weight should be given to it. The record discloses that thereafter at intervals through the trial the matter was adverted to by counsel for plaintiff and remarks were made tending to charge counsel for the defendants with the suppression of evidence. When the evidence had been closed and the case was argued to the jury, counsel for plaintiff apparently referred to the matter again two or three times in the course of his argument. The record does not show exactly what was then said, but it does show the objection made by counsel and discloses that there were again spirited arguments with relation to the matter, and still the court did not caution the jury to disregard such statements.
It is not necessary to discuss the matter at great length. The supreme court of Oklahoma, in the case of Green ConstructionCo. v. Lampe,
In the very recent case of State v. Navone, (Wash.)
A careful reading and study of the record in this case leads us to the same conclusion that we announced in the case ofBennett v. Gusdorf, supra, wherein we called attention to the fact that it is almost impossible to say definitely just what did or did not influence the jury, and just what could or did tend to arouse passion and prejudice, if such existed.
Litigants are entitled to have their cases tried and considered upon the issues involved, upon the facts admitted in evidence. There can be no doubt but what the copy of the invoice in the possession of the defendants' counsel was properly admissible in evidence, particularly the so-called "criptic" signs or indorsements found thereon. The object in requiring that particular copy was apparently to obtain the effect of the indorsements as to delivery of the goods, time of reception thereof, and identity of the party receipting therefor. It is entirely possible and probable that counsel for defendants was mistaken as to the legal rights of himself and his client; nevertheless there was an orderly and proper method available to plaintiff under the statute to require the production of the writing. The circumstances did not justify the assumption and the charge that evidence was being wrongfully suppressed and hidden from the court and jury.
Upon the two assignments of error, considered together, it is apparent that much prejudicial matter was called to the attention of the jury. Of course, no one can say how much, if any, effect this matter did have upon the minds of the jury *438 when considering their verdict. We are convinced that enough prejudicial matter found its way to the jury to justify the belief that the result may have been affected thereby. The cause should be tried in an orderly and legal manner and in accordance with recognized rules of court procedure. In order that that end may be achieved a new trial will be necessary.
The judgment is reversed, with instruction to grant a new trial.
ASSOCIATE JUSTICES MATTHEWS, ANDERSON and MORRIS concur.
MR. CHIEF JUSTICE SANDS, being absent, did not hear the argument and takes no part in the foregoing decision.