Smith v. Goss , 48 Ala. App. 502 ( 1972 )

HOLMES, Judge.

This is an appeal from the Circuit Court •of St. Clair County, Southern Judicial Division, Pell City, Alabama, wherein appellee filed a one count complaint alleging that while appellee was an invitee on the •premises of a washeteria operated by appellants, she fell; that her injuries were •caused by negligence of the appellants in iailing to keep the premises safe.

A demurrer was filed and overruled. On the day of the trial, the complaint, apparently by agreement, was amended by adding another party defendant: to wit, appellant James Smith. Appellants thereafter amended the previous demurrers to include defendants, James and Randall Smith. This amended demurrer was subsequently overruled. From the record it appears that there was no formal plea entered and after overruling the amended demurrers the trial of this cause was had.

The assignments of error argued are that the trial court erred in refusing to give the affirmative charge with hypothesis and without hypothesis.

Testimony reveals that appellee had gone to appellants’ washeteria to wash clothes and had slipped on a round compressed paper candy (sucker) stick on the porch of appellants’ washeteria within such close proximity of the washeteria front door— within one foot — that appellee struck the door in falling. Appellee sustained a broken ankle as a result of the fall and appellee lost time from her employment because of her injury. Appellee testified that she fell on a sucker stick. Appellee’s sister-in-law testified that she saw appellee slip on a candy stick and further testified, in agreement with testimony of appellee’s son who was present at the time of the fall but did not see the appellee slip, that the area where appellee fell was a mess, containing match stems, sucker sticks and spilled Coca Cola. The candy stick was not available at trial. A witness testified that he was employed at appellants’ place of business, a washeteria, and had swept the floor in the area where appellee fell an hour before appellee fell. This employee, along with another washeteria employee, testified that they saw nothing on the ground where appellee fell. Neither saw appellee fall, but were present only minutes after the fall.

Appellant argues in his Assignment of Error III, without citing any authority, that the trial court was in error for refusing to give the affirmative charge without hypothesis because appellee’s fall occurred outside the washeteria building and appellee did not show appellants had “control” over the porch area immediately before the front door. Therefore, appellee failed to show a duty on the part of appellants owing appellee. The evidence revealed that appellee fell on the porch just prior to entering the front door of appellants’ business establishment, within a foot of the door. The record reveals that the appellants did maintain the area in which appellee fell; that one of its employees swept the area. A storekeeper is under a duty to customers to exercise reasonable care in keeping passways in safe condition. Reed v. L. Hammel Dry Goods Co., 215 Ala. 494, 111 So. 237. A storekeeper has a duty to “exercise reasonable care in providing and maintaining reasonably safe premises [emphasis added] for the use of their customers.” Delchamps v. Stewart, 47 Ala.App. 406, 255 So.2d 586. The closeness or proximity of the fall to the front door and the fact of the employee sweeping the fall area do show facts from which an inference may be drawn that the area of fall was within appellants’ control. This court cannot say that the trial court erred in refusing to give the affirmative charge without hypothesis for the reason that no evidence was presented that defendants had a duty to maintain the area where appellee fell.

Appellants’ attention is called to Alabama Electric Co-op v. Partridge, 284 Ala. 442, 225 So.2d 848; Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362, wherein our Supreme Court has said that failure to discuss or mention authorities in support of assignment of error does not amount to an argument. Appellant does not discuss or cite any authority in his argument of Assignment of Error III.

Appellant further contends that the court was in error in refusing to give the affirmative charge without hypothesis as to appellant James Smith because there is no evidence in the record that appellant James Smith was in any way connected with or had any interest in the place of business where appellee fell. The defendants’ requested charge reads as follows:

“The Court charges the Jury that they must find for the Defendants in this case.”

The law in Alabama is well settled that charges must be given or refused in the terms in which they are written. Tit. 7, § 273, Code of Alabama of 1940 (Recompiled 1958). Here the charge as requested was directed to both appellants and was properly refused. Pollard v. Crowder, 239 Ala. 112, 194 So. 161; Jefferson County Building & Loan Association v. Weaver, 25 Ala. App. 189, 143 So. 193.

Appellants’ contention in their Assignment of Error IV is that the trial court erred in refusing to give the affirmative charge with hypothesis for that appellee failed to prove a prima facie case.

In the case of Delchamps, supra, this court stated:

“There is a duty upon all storekeepers to exercise reasonable care in providing and maintaining reasonably safe premises for the use of their customers. The storekeeper is not an insurer of the customers’ safety while on the premises, but is liable for injury only in the event he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition. . . . ” (255 So.2d at page 587)

The Alabama Supreme Court said, in Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211:

“We hold the rule to be that no absolute or positive invariable rule can be announced that can be applied to each case, and which will correctly define the duties of store keepers (invitors) in all cases, or the duties of the invitees (customers). The duties and liability of the invitor (store keeper), and the duties, risks and rights of the invitees (customers) must of necessity depend upon the circumstances of each particular case. . . . ” (282 Ala. at page 482, 213 So.2d at page 216)

We find the evidence supporting an inference of negligence because of the condition of the area of appellee’s fall. As the Supreme Court stated in S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171:

“It is not necessary, however, to enter direct evidence as to the length of time a foreign substance has remained on the floor; it is permissible to allow a jury to infer the length of time from the nature and condition of the foreign substance. . . . ” (267 Ala. at page 569, 103 So.2d at page 174)

From a reading of the record it cannot be said that the trial court erred in refusing to give the affirmative charge with hypothesis in that appellee failed to make out a prima facie case.

Having disposed of appellants’, arguments contained in their brief other assignments of error need not be considered.

There being no error presented or argued to this court upon which to base reversal, the judgment of the lower court must be affirmed.

Affirmed.

WRIGHT, P. J., and BRADLEY, J., concur.