*1 892 finding that defendant judgment court’s INCORPORATED, STORES, SAFEWAY “time material plaintiff on pay
agreed Error, corporation, Plaintiff although profit, plus percentage basis” agree- making such denied KEEF, Defendant in Error. Charles be- facts, do not we these Under ment. No. 40478. Legisla- as the a situation this is such lieve “open ac- referring to mind had in ture Supreme of Oklahoma. Court setting at- providing for when count” July 19, 1966. re- wherein torney’s in civil actions fees account. on such an covery is made in set- court erred the trial
determine from judgment attorney fee in the
ting an & Globe See appeal was taken. this Independent Co., etc., v. Republic Ins. Inc., supra.
Trucking Co., etc., this Court brief asks in answer
Plaintiff attorney for fees grant as $750.00 defending this attorney in of its serviсes fee allowed appeal, in addition to the to do for This decline court. we
foregoing reasons. court ac- is judgment of the trial setting
cordingly except as to affirmed attorney as which
of an fee reversed.
part judgment is of such same our attention calls judgment
supersedeas prays bond principal The bond is in
thereon. de $4,800.00, executed
amount of Akers, M. principal as and R. Okla
fendant County, surety. In accord with
homa (12 Rules O.S.
Rule of this Court 15, Appeal Error, Appendix) c. request, plaintiff’s judgment here bond, against rendered on thereon,
surety well as $1,778.70,
the amount of with interest per 6 per
thereon the rate of cent annum 1st, 1963, April paid,
from until entitled;
costs to which judg directed enforce
trial court is court.
ment if rendered in that
HALLEY, J., JACKSON, C. V. C. DAVISON, IRWIN, BERRY, and. concur; JJ., LAVENDER,
HODGES
fendant had actual notice that the banana e., floor, i. no evidence put defendant either the banana there or *3 knew before the accident that was there”. argues that “there is no evi- Defendant also swept in- dence that the floor was not analy- spected. Plowever, evidentiary suсh notice sis is immaterial because of lack of * * * any evidence evidence lack of the floor before the banana was on by inspection. Such evi- fall to be seen any necessary dence is foundation for plaintiff might contention make concern- employees”. inspection ing by defendаnt’s support argument de- In of the above Bullís, Monnet, Thomp- Hayes, & Grubb Company & v. fendant cites S. Kress Taliaferro, Jr., son, by Henry B. Oklahoma 565, Thompson, 171. 267 Ala. 103 So.2d City, plaintiff in error. In the contended Kress case premises was inspection of the Berry, Berry, by K. Howard Berry & manner, performed negligent in a in error. City, defendant Jr., Oklahoma inspect nеgligently failed to IRWIN, if there the court held that Justice. a which tends to is evidence show they to as be referred parties will the floor for foreign substance has been on trial court. appeared in the while, im- proper for a a is 1961, approximately at August On pute for not negligence to the defendant in de- P.M., plaintiff, while a customer 5:45 discovering removing foreign sub- piece store, stepped on a allegedly stance. fell, banana, sustained slipped commenc- Thereafter he personal injuries. not based on the The instant action is damages for the to recover proceedings ed inspect- grounds nеgligently that defendant a result of personal injuries sustained premises negligently ed the failed accident. connection, premises. evidence, the plaintiff’s At the close of alia, plaintiff alleged, inter that defendant demurrer defendant’s overruled trial court “failed to its floor at reasonable evi- thereto, of defendant’s at close tervals, so the banana on the as to discover for a dence, motion overruled floor, and remove it.” a ver- jury returned verdict. directed Penney Company Camp In C. render- J. judgment was plaintiff and dict for bell, Okl., 325 P.2d we held that a appealed Defendant has accordingly. ed storekeeper owes customers the to ex motion overruling its the order from the aisles, passage ercise care to trial. for a new ways parts premises and such PROPOSITION ordinarily used are customers court erred contends Defendant condition, reasonably safe and to warn plaintiff’s demurrer overruling customers of conditions verdict directed for a and motion evidence premises which are known or which reason there is no evidence because ably storekeeper be known to the part. customers; storekeeper but not is not insurer; question defend- wheth proposition To sustain the above er, case, storekeeper that de- has evidence argues “there ant customers, respect negligent particular, to his and in been jury. question for the usually a of fact was a fact for jury. therefore hold the trial court did not err testified that he entered defend- in overruling defendant’s plain- demurrer to P.M.; apprоximately ant’s 5:45 store tiff’s its motion for directed looking vege- that he for the lettuce or verdict. rack and he turned the corner and table couple steps his feet went out took PROPOSITION II down; assistant he went that defendant’s Defendant contends the trial court erred (Mr. manager Latimer) immedi- was there in refusing following instruc- ately picked squatted him and beside tion : *4 floor; up piece of a banana that “You are instructed that in order for the he Mr. Latimer what he had that asked plaintiff to recover herein he must have fallen on Mr. Latimer looked at the and proved by preponderance a piece pulp appears be of the of and said “It a evi- dence that piece banana”; piece of substance which he con- of that the banana tends him placed caused to fall picked up immediate- was Mr. Latimer first was there ly foot, presence left or three and that its of his left about two on inches; the flоor piece was a of breach that there was another duty of directly front, peel; banana and that reasonable and ordi- nary care piece dirty over-ripe plaintiff. you and toward the If banana was squashed. find that the had been further substance on testi- the floor “ * * * placed by got up fied that and brushed there I defendant but off, floor, dropped was myself or by where I fell brush- on on the the floor some my person, other customer dirty. ed or hands. floor was brush- then find, must my ed the dirt off we before hands and moved liable, can the front be of the store.” the defendant knew of it, there and failed to remove Additional evidence introduced establish- or that such substance had been there ed personal inju- sustained so in the exer- fall; ries as result of is evi- there cise of ordinary care, reasonable and dence produce depart- that the floor of the should have known of its ment where sustained his accident steps taken to rеmove it.” swept had not been 8:30 that since morn- ing; customary that there was no or rou- Safeway Stores, Defendant cites Inc., tine sweeping produce department Criner, Okl., 712; v. 380 P.2d except mornings; Kitterman, the store Owen 483, v. 178 Okl. 62 P.2d manager produce manager left had 1193. In the Kitterman case we held that P.M., store about 5:00 impose the assistant liability order injury to an manager off; day had the by man invitee reason of the condi charge of the store “third man” tion of the the condition must store; or manager an assistant occupant have been known to the owner or only he and employees five other were at or have existed for such time that it was accident; store at the time of the occupant the owner or to know employees none of defendant’s had of it. policed the any vegeta- area to ascertain if Both of the above cases were cited bles or matter had fallen on the Safeway Stores, Incorporated v. Fee floor. back, Okl., 519, 390 P.2d where we held that only We can conclude that under a customer injured of a store retail in a fall presented, circumstances herein by slipping caused vegetables lying on question as to whether defendant exercised may the store floor damages not recover respect care to his to his from the owner without that such ,' Estes, Old., P.2d Knight 383' by In v. there left negligently vegetables were held: had been employee, or we some or the owner latter time after there for judg- sufficient will the court reverse “Before knowledge there- constructive had' actual or jury be- the verdict of a ment based on exercise of it in the removed give giving or refusal to cause of the n ordinarycare. structions, clearly appear must given or refused evidence case In the Feeback This miscarriage justice. po- attempted to caused a continually that defendant much be determined as up рroduce and is to pick lice ab- before the In the the evidence be hazard. .anything that language used accuracy that de- stract action, there was evidence instant refused.” employees “instructed floor, pick it they anything on the if see State, Okl., P.2d Samara necessary”, but there is up, sweep if we held that if the instructions po- employees did the defendant’s fully is not error cover the case on since swept the floor lice the or had area party’s requested in to refuse to one morning. (cid:127)'8:30 that struction. *5 question generally a Although it is instruc We find and hold that the whether, under jury for the as to (cid:127)of fact tions, when cоnsidered the instructions are circumstances, dangerous condi (cid:127)all the whole, applicable correctly as a stated the long enough so that rea existed tion has in jury the issues law and submitted to the exercising ordinary would care sonable man proceeding. fur in instant volved the it, opinion, the in our Rave disсovered trial court did not com ther hold that the error in commit (cid:127)court did not reversible give de failing mit reversible error to requested in failing give to defendant’s requested forth instruction set struction. above. plain allegations material The Judgment affirmed. petition tiff’s were the trial summarized
n court’sinstructions LAVENDER, DAVISON, and concerning BERRY defendant’s JJ., concur. fall on permitting action in the banana to the floor remain and defendant’s and ’ WILLIAMS, J., specially. concurs it; removing and failure to floors (cid:127)defendant’s failure J., HALLEY, JACKSON, V. C. C so to discover the reasonable intervals HODGES, JJ., BLACKBIRD dis- it. banana the floor and remove sent. jury that the trial court also instructed the upоn proof plaintiff to estab burden of WILLIAMS, special- (concurring Justice by preponderance lish of evidence the ma ty)- petition, allegations his terial my mind, To have better been the any, injuries, if defend caused were practice given for the trial court to plain negligence, alleged, ant’s and that jury stаting an instruction the substance proxi injuries tiff’s direct requested defendant’s No. Instruction mate thereof. instructions result Other leaving objection- but out the matter in the were to the effect that defendant (requiring jury able first sentence invitees, safety insurer its business find defendant banana on rea was that of finding floor plaintiff). before sаfety; care for their sonable and Plaintiff, brief, rea in his states that if defendant failed to exercise in effect ordinary care, defendant, objection sonable the verdict without from plaintiff. argued jury proof should be for did not show that defendant had notice person, tomer or find, then must be- of the banana on floor and further that liable, fore the defendant can be proof did show that the banana had presence defendant knew of its there and enough long been on it, defend- failed to remove or that such sub- ant’s employees should have found and re- stance had been there for so moved it. in the exercise оf rea- ordinary care, sonable and should have appear jury Thus it would considered known of its and taken steps to the notice issue and the of defendant’s remove it.” employees cleaning to do such make frequent inspections may de- The defendant was entitled to such an reasonably necessаry termined to have been instruction to jury inform the that the bur- slippery the store clear sub- floor den of to show stances. knew, the defendant or should have known, true, sub- being
That question It stance. is a adequate Indeed, of fact for the respects. seem all negli- to decide whether objection defendant’s them thаn the failure gence failing premises requested instruction No. proximate plaintiff’s injury. cause of 5 was raised. Inherent such a is the matter of specially. I therefore concur actual constructive notice to the de- Stores, Safeway Criner, fendant. Inc. v. HODGES, (dissenting). Justice Okl., 380 P.2d we held: majority opinion this ac- states that “Unless it is established that customer tion is based the contention of the slipped through negligence on store floor “negligently *6 employees, of store owner’s or because inspect premises” that a failed to the of condition of which owner had actual presented the of fact was for noticе, or there can be no constructive jury and that were recovery.” agree I the should sufficient. case jury, I am
have been submitted to the Kitterman, also held Owen v. 178 agree unable to the instructions were Okl. P.2d that: opinion appears hold The to sufficient. liability in- impose “In order of that because there was a fаilure jury by of dan- to an invitee reason the spection dangerous the gerous of condition the cir- condition was created and under such the known to condition must have been setting requested instruction cumstances occupant or have existed owner requirement or con- forth the of actual duty the such time that it was defendant of the structive notice to the occupant it.” to know of owner or of a substance on necessary. apparently majority the court The of plaintiff alleged petition his point because these cases are not in feel that floor at defendant its the “failed instant casе which the there is evidence intervals, the reasonable so as to discover police failed to the defendant shows floor, remove Based banana on the it.” the subsequent a. m. on to 8:30 the area requested upon allegation this the defendant true, it day this the accident. While of following instruction the court to the the requirement the does not remove was refused: notice, or con- actual defendant must have “ * * * condition, or structive, dangerous of find If should informed. jury be so placed floor substance on the court given by the trial dropped instructions by defendant but was necessity any reference this case omit by sоme other cus- on the floor parties by of the existence stance. The are entitled to a trial the defendants of notice to jury upon proper To dangerous condition its store. based instructions. preserve right, I this would reverse as to this Paraphrasing the instructions respect- case for a new trial. therefore plaintiff issue, told that the fully dissent. injuries proximately caused alleged his JACKSON, in that I am authorized to state that floor at reasonable it failed to V. C. concurs the views herein ex- intervals, pressed. the banana so as discover it; that the burden
the floor and remove establish preponderance of thе evi- fact
such
dence; defendant owes a' reasonably place and providing a safe the cir- reasonable care under
must use reasonably provide safe
cumstances customers; place for its Thompson, and Laverne THOMPSON G. owed Error, Plaintiffs in care to reasonable and passage- premises, including the aisles S. RORSCHACH and Naomi Gеrald O. ways store, reasonably safe in a Rorschach, Defendants in Error. condition. 41022. No. instructions, jury could From these Supreme Court of Oklahoma. responsible for the find the defendant was July 1966. simply it failed plaintiff’s injury because 19. inspection and discover to conduct This is foreign substance. inspections diligent timely
error. If presence of
would not have revealed condition, the failure to make proximate inspections not be the the accident.
cause of *7 quite possible
It is from the fell from
this case that the banana only prior
produce a short time counter accident, and of the would
the occurrence exercise of been discovered
not have part defendant. diligence on the
due hand, there is circumstantial
On men could
evidence from which reasonable present the banana had been
conclude that length of time
in the aisle for a sufficient by the defendant
to have been discovered pru-
through the exercise of reasonable fact is an issue
dence. This jury should been instructed. unable to
Contrary majority, I am
perceive what the verdict been, had it been instructed
defendant must have actual or constructive sub- presence of
notice of the