*1 whatever for liability, anything by McKelvey denying decision, as the underwriter. to do with Smelser’s circumstances, viewed facts Under foregoing hereinabove set of law the light applicable principles forth, issue as to whether the we think there was a jury fairly and reasonably, honestly, insurer dealt with the matter or, therewith capriciously dealt contrary, arbitrarily, inwas It follows that the trial judge unreasonably. non obstante veredicto. The error in granting judgment remanded is, and the cause reversed accordingly, judgment in accordance favor entry appellants judgment with the verdict jury. and remanded.
Reversed Moss, and Clarence JJ., J., Littlejohn, Lewis C. concur. E. Associate Justice, Acting Singletary, WIMBERLEY, Respondent v. WINN-DIXIE Hazel M. GREENVILLE, INC., Appellant (2d) 627)
(165 S. E. *2 Appellant, Orangeburg, for Horger, Messrs. & Horger Matthews, Gressette, St. Furman R. Esq., Respon- for dent, 16, 1969.
January Justice.
Littlejohn, recover This action was by brought result of sustained as the damages personal injuries on the floor of the self-service falling slipping rice Admittedly some defendant. there was operated was on the floor in one the aisles where this plaintiff the defendant. with furnished grocery shopping pushcart The found a for the The trial plaintiff. judge verdict nonsuit, ver- denied defendant’s motions for for a directed dict, and for the verdict. judgment notwithstanding alia, inter that the defendant complaint alleged, on the rice be or to be negligent permitting floor, in presence warn the failing thereof, inspect or the failing probability properly *3 therefrom, in failing provide the floor and remove the rice and broken containers at such location to check an attendant floor, the other substances on being avoid and thereby to its which customers furnishing buggies and shopping the in front of immediately obstruct view the floor customer. denied the material allegations answer defendant
By on the and contributory negligence of the complaint alleged of the plaintiff. part on that appeal only exception charges
Defendant’s the case to the submitting erred judge presiding there was no have directed a verdict because and be could from which a reasonable inference testimony the defendant of any proximately drawn negligence Plaintiff challenges plaintiff. causing it is too contending general. that sufficiency exception, however, cannot be that the point We are of opinion, gist position inasmuch as the defendant’s sustained in this there is an absence of the evidence required that is burden is on the plaintiff. case where proof A review of the transcript indicates that the store of the is a defendant modern typical supermarket, area display about 60 feet wide and about 80 feet Goods are long. shelved on racks back to back and referred to arranged The customer selects his own “battleships.” places purchases, them a for them on the pushcart, pays way out at the cashier’s desk in the front of the store.
Plaintiff’s fall occurred between and 11 a. m. on a Wednesday The defendant’s store closes morning. at 1 o’clock on and business on Wednesday activity the morning involved was minimal. There were four fall; store at the time of the were a they temporary acting a meat market manager, manager, produce manager a cashier.
On the morning question store was swept shortly before 8 o’clock. The store offers rice already packaged sale. It is and shelved at a displayed location well removed from the of the fall. The place store has a colored variegated floor, a white, of which is large part and upon which rice be may rather difficult to detect.
It is admitted that rice was the floor at place where fell. The plaintiff does not contend that there employee there, nor is it that there is argued evidence that any employee had actual of its knowledge presence.
There is a number testimony of customers quite in the store before shopped fell, the time the plaintiff *4 that 100 to 150 before at 1 shopped closing o’clock. At the years trial three after the fall none who testified could definitely whether other say customers had preceded down the plaintiff aisle where the took place.
It has been Carolina, settled in long South indeed in most that one jurisdictions, who operates store is not an insurer of the safety customers, of its
121 duty them of exercising ordinary owed is rather duty by cus ordinarily of the store as used care are keep parts Pierce Gilliland v. tomers in a safe condition. reasonably 268, ; E. 521 Motor 235 C. 111 S. (2d) (1959) S. Company, Stores, 139, S. E. Hunter Dixie C. v. Home S. Anderson v. Belk-Robinson Company, 262 (1957); (2d) 132, 192 S. 5 S. E. C. (2d) (1939). court in the case of
This was restated this duty by v. wherein Anderson Belk-Robinson Company, supra, liable order to hold a merchant we held there must be some defect premises, caused injuries his knew or that he or to show tending agents known, of reasonable diligence, should have exercise this rice on floor). defect case (in Stores, this Hunter v. Dixie court supra, Then in Home and re- on the question canvassed the authorities again rule affirmed the Anderson. applied this a directed verdict on the denial of passing testimony and must all the court of course consider most favorable in the light the inferences therefrom burden, however, plaintiff on the plaintiff. or its knew or have show that the defendant agents thereby floor and was known the rice was customers, and in our opinion the aisle hazard making has not this burden. carried to prevail a customer our cases order for Under be shown kind must in a case this there the floor was placed that the material on (1) store, that the merchant (2) through agency be actual or its notice may had notice of This presence. be proved by showing may constructive. Constructive on the floor sufficiently this that the rice had been case it. The only should have discovered that the defendant long has submitted this the plaintiff real issue in case whether notice. evidence that defendant *5 122
A search of the to record fails reveal how the rice had been on floor. showing long store had been m., before 8 a. swept just at opening and the fall occurred between and 11 a. m. in area adjoining produce area. The testified produce manager that he to the although went back of the store time from to time to procure area, from storage a goods passed he over every where the fall point occurred ten or fifteen minutes and was stationed in the immediately adjacent area produce the entire He on saw no rice the floor to the morning. prior fall.
Mr. Boykin, in as assistant charge testified that manager, he walked and down the up aisle before the opening store day. several times He during the did not see rice on the floor the fall. prior to
In addition law relying of this state counsel Markets, DeFeo, cites the case of Carl’s Inc. v. 55 So. (2d) in substantiation his of (Fla. 1951) posi- tion. written brief is argued that the premises were not in a safe kept reasonably condition because of insufficient personnel, inspection, inadequate floor inadequate maintenance, view, appellant’s pushcart and use obstructing of floor. Plaintiff variegated “The circumstances argues amply support that theory appellant of the rice on the floor and did nothing about it.” The Florida court has of adopted standard care different from that enunciated in our cases. The tendency of the Florida is cases eliminate of necessity proof actual constructive notice. Such not the rule this state.
No evidence is out which pointed tends to reasonably that the prove onwas the floor at any time prior actual fall. The not be permitted to it was speculate floor for such a length time as to infer that defendant was negligent failing detect and remove it. we conclude of the entire evidence
From review proof has burden failed carry be forthwith entered keeping for refendant shall judgment 27. with Rule
Reversed. E. Singletary,
Moss, Acting and J.,C. Clarence concur. Justice, Associate
Bussey dissent. Lewis, JJ., : Bussey, (dissenting) Justice in case of this a liability The of law principles governing state, but settled, not in this only kind are well reasonably encountered, is oft in most other Difficulty jurisdictions. facts to the however, in of these principles the application circumstances a case. of particular is, no direct precisely There evidence admittedly, how, when, rice, caused the which floor, it is settled but well fell defendant’s upon plaintiff, is not that, doctrine of res ipsa loquitur state while the this nevertheless, be proved by may, recognized, negligence defendant, if of a liability circumstantial evidence. When notice, as is the case constructive upon any, predicated can indeed, are, rare which here, the instances than circumstantial other prove evidence, negligent storekeeper of how grossly regardless been. have may here is whether there was evidence pivotal question infer that defend- reasonably
from which jury might reasonable ant, exercise of should have diligence, on the floor hazard which caused the injury known this it is elemen- determining question, to the plaintiff. and the inferences reasonably that all of tary most to be the light therefrom have viewed deducible rea- additional facts and Certain favorable the plaintiff. should be stated such light. inferences therefrom sonable discloses, time, As far as defendant, the record at the had on duty only two who had duties to any per- form, be, or reason particular store; area of the one the assistant and the other being manager, Boykin, Ott. The cashier’s duties produce were manager, store, at Garrick, the front of the naturally manager market, of the meat worked behind a counter at the rear of the store and the areas. adjacent storage floor,
The rice whenever and however it got there, was not there and was of sufficient by plaintiff, that it had to be after the quantity accident. swept up Boykin, the assistant testified that “slack manager, Wednesday he day”; that walked down the aisle before the store opened that and several times in the course morning but he had no recollection day, so at doing time. He admitted that due to the specific coloring *7 floor he could have the rice without it. passed seeing With to in any customer traffic the store that respect particular Ott, the was, testified that morning, produce manager, it “Well, about the one of the sir.” quietest, quietest, yes, one, Wednesday a a morning very quiet part time of the was devoted personnel making preparations the for first of the weekend trade. Thursday, big day in Ott was immediate of and had the duty of charge clear the area where was he keeping plaintiff While injured. testified that he or patrolled every such ten or inspected minutes, hawk, fifteen the floor like a examining and that in he was the same he did employed capacity, not the stand know color or either the of the floor. He design wore bifocal did not claim be but color blind. glasses, At time of the was the injury, in that plaintiff only person area the store. Boykin’s whereabouts at the disclosed, moment is not but Ott was room storage at the rear. Plaintiff’s fall made a terrific noise and the only who came to her rescue were first Ott and people Boykin, from the rear and from some Boykin Ott other coming part of the store. entered the a substantial period had store plaintiff and fall, for shopped
time before her thereto prior no in her or There is ten eight packages. pushcart other any that there were customers the record suggestion matter, fall, for that in the store at the time during in the store. the entire that was time period nonsuit, a In for the defendant’s motion overruling view, that it could be and I agree, trial was of judge there no were from evidence that reasonably inferred other store the whole time that customers during there, of the circumstances was under all had been a to whether there it was issue as jury defendant, in the exercise of time for the sufficient length care, it. of reasonable to have discovered the trial to arrive judge an announced effort induce for a directed-ver- at a different on the later motion ruling defendant, testimony was adduced from dict one market effect that some of the meat manager came into the store hundred customers hundred one fifty hour it the five period on that particular morning during however, He customers testify, not did open. before, of, shortly time the acci- in the at the were testimony would An of his uncorroborated dent. analysis belated guess, indicate that his estimate was pure little were warranted giving and the judge trial or effect. weight no case factually point
Research discloses to writer all, of few, the many A but not nearly with the case. instant *8 to to rise give of evidence sufficiency cases with dealing are collected reasonable inference of constructive are R. others A. L. 129. Certain (2d) an annotation in 61 Torts, Ed. of Prosser on to the 3d contained the footnotes Stores, Moore 216, 86, *9 “There was on which base a something conclusion that had not been a moment before candy dropped customer,”
In the instant case rather that the rice clearly appears had not been a moment before a customer. dropped It natural, circumstances, was only under the that the plaintiff was unable to moment at prove precise which defendant, reached floor precise and such moment is a matter of circumstances, Under all of the speculation. however, viewed favorably do, plaintiff, we must no involved at the speculation reason- arriving logical, able inference from the evidence that the injury producing rice had been the floor for a substantial quite period of time prior evidence was sufficient injury. warrant the so and it was for the finding, jury to whether, determine under all of the circumstances, disclosed defendant, in the exercise ordinary care and the dis- of its charge duty plaintiff, have discovered and I remedied the hazard. would affirm the judgment lower court.
Lewis, concurs. J., ZORN, Zorn, David as Administrator William Estate Diane CRAWFORD, Respondent, Appellant v. Fred
(165 (2d) 640) S. E. notes In v. Ameriran (1936) 87. 436, court, 541, A., 440, with Md. respect 182 said, notice, “What will amount depends to sufficient time case, circumstances of the and involves considera- particular tion of the danger, persons nature of the the number of likely it, to be affected discover diligence required it, the and means of prevent knowledge, opportunities which a care and foresight person ordinary prudence circumstances, would be to exercise under the expected the foreseeable of the conditions.” consequences Co., In the recent case of Garrett v. National Tea fairly 567, said, 12 Ill. 147 N. E. the court (2d) (2d) (1958), “There is no rule as of time arbitrary length obstruction must be on the floor before constructive know- will be ledge presumed.” The basic of liability rule to be the same in Illinois appears as it is in this and most other and under jurisdictions, case, circumstances of the the court held that there was sufficient evidence to a reasonable infer- support There, here, ence constructive notice. as oc- said, curred on a slack with to which the court day, respect was, therefore, “There for defendant’s better opportunity to exercise care to discover and remove ordinary the obstruction in question.” was, The time at least infer- element involved that case less than the time involved the instant case. There entially, exit, the obstacle there when the was near the but was not She, customer as the injured entered store. just here, cart, inwas the store to select a wheel it enough long area, the selection about and complete through shopping case, of her instant Unlike the the customer purchases. been checked out and for her already paid groceries. Co., In Hudson v. F. W. 275 Mass. Woolworth (1931) 469, 188, 176 N. E. there was circumstantial only candy constructive notice of a on the floor of piece store, sufficient, which caused such injury. holding commented, the court