Kroger Grocery & Baking Co. v. McCune

The above-entitled cause is now being determined on proceedings in error from a judgment of the common pleas court of Franklin county, Ohio. The parties appeared in the reverse order in the lower court, and will be referred to in this court as McCune, plaintiff, and the Kroger Company, defendant. The action was for personal injuries which the plaintiff, Mrs. Rhoda Helen McCune, claimed to have sustained on December 24, 1930, by reason of a fall in the grocery store of defendant. The amount of the verdict and judgment was $2,500.

Learned and exhaustive briefs are presented by counsel representing the respective parties.

The following short history of the facts will make the case understandable:

Between three and four o'clock, on the afternoon of December 24, 1930, the plaintiff, Mrs. McCune, entered the store of the defendant grocery for the purpose of purchasing some grapes. After she had opened the door and walked a few feet down the center and towards the rear where the grapes were located, she fell to the floor with considerable force, severely bruising her right elbow. She also claims to have sustained internal injuries from which a hernia developed about a month later. So far as the record discloses, no one saw her fall, nor is there any direct evidence of what caused her fall except deductions from things found immediately after her fall. A lettuce leaf was taken from the heel of her right shoe, and a splinter taken from under the strap of her slipper.

In plaintiff's petition she says that "she caught her foot in a splinter that was protruding from a basket of merchandise sitting on the floor of said store, and stepped on some lettuce that defendant had permitted to lie upon the floor of said store, when she was thrown heavily to the floor, injuring her as more specifically hereinafter set forth."

In her evidence she says that her slipping on the lettuce leaf caused her to fall, and, though it is not directly so stated, her evidence leaves the impression that her foot went into the basket as she was falling.

According to the record, no witness, plaintiff included, saw the lettuce leaf before the fall. It is urged that the defendant company was responsible for its being on the floor through the fact that it handled lettuce. If this inference can be indulged, the record is absolutely silent as to how long it had been on the floor. The only witnesses testifying relative to the fall were the plaintiff, Mrs. McCune, a neighbor, Mrs. Marie Mundy, who was in the store at the time, but not with Mrs. McCune, and William M. Malehorn, the manager of the store at that time. Neither the neighbor, Mrs. Mundy, nor the manager, Mr. Malehorn, observed the slip and fall, but learned of it immediately thereafter. Mrs. Mundy was attracted by the noise of the fall, and Mr. Malehorn, who was some twenty-five or thirty feet away, observed Mrs. McCune on the floor and immediately went to her assistance. Both Mrs. Mundy and Mr. Malehorn observed a piece of lettuce on the heel of her shoe. The manager said it was about the size of a half dollar. No other witness testified as to the nature, quality, or size of the piece of lettuce.

In the evidence in chief both Mrs. McCune and Mrs. Mundy leave the impression, in not very clear statements, that other vegetable debris was on the floor, in this aisle, and at the place where Mrs. McCune fell. In cross-examination Mrs. Mundy finally leaves it that what she saw was between the baskets, and Mrs. McCune says that after the fall she saw a banana peel and a bunch of celery. Both Mrs. McCune and Mrs. Mundy testified that immediately after the accident the manager instructed the clerk to get a broom and sweep up the debris from the floor before somebody else should fall. The manager has no recollection of any such incident.

The splinter, presumably from a basket, was taken from under the tongue of Mrs. McCune's shoe by a clerk in the store, who went to her assistance and arrived at her side before the manager did. This clerk was not called as a witness by either side. All seem to agree that the splinter was probably from a basket.

The trial court, by reason of the failure of evidence, withdrew from the jury any claimed negligence by a protruding splinter from a basket.

Herbert L. Budd, a son and witness of the plaintiff, Mrs. McCune, gave evidence, over the objections of the defendant, that late in the evening following the accident he had a conversation with Mr. Malehorn, the manager, in which the manager narrated to him how the accident happened, and made the request that nothing be said about the basket, because they were not supposed to have it there. Mrs. McCune also testified that upon different occasions the manager, Mr. Malehorn, made certain admissions to her and generally wound up requesting that she say nothing about the basket and so forth. We think this evidence should not have been presented, as it is highly prejudicial. Mr. Malehorn, the manager, so far as the record discloses, was not an officer of the company. Any statements that he may have made on the evening following the accident, or later, could not be presented under the theory of res gestæ; neither would they be admissible as a declaration against interest, since a manager would have no authority to make any admissions detrimental to the interests of his employer. Of course, the manager could and should testify to the truth when called upon as a witness, and, further, when called as a witness he may be inquired of as to whether or not he made statements at any time contrary to testimony that is then given. In other words, if material, the ground may be laid for impeachment; and thereafter, in rebuttal, witnesses may be called to furnish the impeaching testimony. This impeaching testimony would only affect the credibility of the witness Malehorn, and would not be substantive evidence of any act of negligence.

There is nothing so prejudicial in the eyes of a jury as presentation to them of evidence of a party in authority who is seeking to suppress evidence. To the jury's mind this at once is an admission of wrongdoing and a manifestation of willingness and effort to keep the truth from coming out.

Apparently counsel for plaintiff rely on the case of F.W.Woolworth Co. v. Saxton, 39 Ohio App. 118, 177 N.E. 219, as authorizing evidence of this character. This was a Franklin county case, a decision by the Court of Appeals of this district. The writer of this opinion was not a member of the court at that time, but my two associates were members of the court when that opinion was announced; it having been written by Judge Hornbeck. An examination of the Woolworth case discloses that the statement was made by the manager immediately following the accident, and thereby might have been proper as a part of the res gestæ. However, the court held admissibility of the evidence proper as showing knowledge on the part of the manager as to the condition of the oiled floor immediately before the accident. The court as now constituted is unanimous in the conclusion that the reasoning announced in the Woolworth case cannot be given application in the instant case for the reason that the situation is not at all analogous. Attention is called to volume 17 Ohio Jurisprudence, Section 289, and notes thereunder, which very clearly set forth the Ohio rule. Section 255 is also in point.

Counsel for the Kroger Company gives major attention to the claim that the trial court should have directed a verdict against the plaintiff below. This ground of error is properly presented.

The obligation of owners of stores to their patrons is very clearly set out in the case of S.S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R., 132:

"1. Owners or lessees of stores owe a duty to the patrons of the store to exercise ordinary care to prevent accident and injury to the patrons while in the store, but they are not insurers against all accidents and injuries to such patrons while in the store."

The general rule affecting knowledge of defect or a dangerous condition, which we think to be the Ohio rule, will be found in volume 45 Corpus Juris, 837, Section 245:

"Knowledge of Defect or Danger. In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises the condition must have been known to the owner or occupant or have existed for such time that it was the duty of the owner or occupant to know of it."

In the instant case, since there was no evidence that the employees in the Kroger store knew of the presence of the lettuce leaf on the floor at the time of or before the accident, nor any evidence as to the length of time it had been there before the accident, there is an absolute failure of knowledge, either actual or constructive, under the general rule above announced. If the above general rule is to be followed, it is obvious that the plaintiff must fail.

A further rule is invoked which has little if any expression from Ohio courts. In substance it may be stated to be that, where the dangerous substance has a nexus with the business an inference will arise that the danger is brought about through the operation of the business, and thereby liability is created. As applied to the facts in the instant case, the inference would be that, as the Kroger Grocery Company handled lettuce, the lettuce leaf upon which Mrs. McCune slipped was on the floor through the operation of the store's business, and the Kroger Company would be liable without any proof as to how it got onto the floor or how long it had been there. It was upon this principle that the trial court overruled the motion for new trial and entered judgment. The case of Lowe v. Hippodrome Inn Co., 30 Ohio App. 520, 165 N.E. 749, was the Ohio authority upon which the trial court based its conclusion. The opinion in that case was rendered by Judge Sullivan of the Court of Appeals of Cuyahoga county, and shows a splendid analysis and clear expression of the question involved. The determination was against liability. In the opinion, at page 523, the following language is used:

"In other words, its character, standing alone as it does, has no nexus with the restaurant itself, or its operation, and as reasonable an inference as any other is that its existence was due to an act wholly disconnected from the operation of the restaurant, and due solely to some cause foreign to the operation of the establishment."

This was only one of many reasons set forth by the court as to why the plaintiff was not entitled to recover. It is not the equivalent of a finding that, if the evidence had disclosed a "nexus," there would have been a liability. This word "nexus" is more or less new in legal phraseology, but, as used by Judge Sullivan in the Lowe case, supra, it was very expressive of the idea intended to be conveyed. We do not know at the moment of other cases where the word has been used, but for the purpose of brevity in expression we will hereafter refer to this principle as the "nexus theory."

F.W. Woolworth Co. v. Kinney, 121 Ohio St. 462, 169 N.E. 562, is cited as supporting the contention of plaintiff below. As we read this reported case, it is not based at all upon the "nexus" theory, although the question is properly in the case if the court had desired to follow it. In this Woolworth case a customer of a store slipped on a piece of candy and was injured. Evidence was presented that one or two days previous another person had slipped at or near the same place. This latter evidence was in support of the claim of plaintiff in her petition that the candy had been permitted to remain upon the floor such length of time as would charge them with notice. In the dissenting opinion Judge Marshall states that the jury must have found these facts to exist, as otherwise they could not have returned a verdict for the plaintiff. If the nexus theory of law was under discussion of the Supreme Court, it is hardly probable that Judge Marshall would have used the language set out in the dissenting opinion.

Counsel for claimant in their brief present for illustration the case where an employee carries oil across the floor in a leaky can, and thus creates a slippery condition, in which event the owners of the store should not be permitted to say that they did not know of the condition, since it was an incident in the operation of the store.

This illustration would present a direct operation of an employee, and, if he knew of the leaky can, such operation would be a direct negligent act if it created an unsafe condition on the floor. If he did not know of the leaky can, the question would arise as to whether or not because of his close contact with the operation he should have known of the condition. We have carefully examined the cases submitted by counsel for defendant in error in support of their so-called nexus theory, but we think each and every case is readily distinguishable from the case at bar.

For instance, in those cases, such as the slippery ramp, or the moving truck in the aisle, or the splinter in the floor, there was evidence of a continuous condition which, in the exercise of ordinary care, would have been known and corrected, or evidence of a direct moving force, which would demand that the employee should exercise a high degree of care in not injuring customers in aisles of stores.

Another well-recognized principle of law is that, in order to create liability for a slip and fall on some substance on a floor, there cannot be a claim of want of ordinary care unless it can be shown that the substance on the floor responsible for the slip and fall was known to have qualities which would make it dangerous to persons coming in contact with it. In this case the only evidence disclosed in the record on the question of the dangerous quality of a leaf of lettuce is the inference that might be drawn from the fact that the plaintiff, Mrs. McCune, did slip and fall thereon. It is probably true that the dangerous qualities of some substance is a matter of common knowledge, and in such instance no evidence would be necessary other than the evidence of the presence of the offensive substance upon which claimant slipped. Such would be the case in stepping on a wet piece of soap, greasy meat, tallow, banana peel, or other substances of that character. It cannot be said that it is a matter of common knowledge that a scrap of lettuce leaf about the size of a half dollar is a dangerous substance. We do not think that it can be said that it is a matter of common knowledge that such substance would have dangerous qualities.

Of course the banana skin, which plaintiff claimed to be in close proximity to the location of her fall, would be as a matter of common knowledge a dangerous thing to step on. But there is no claim that she did step on the banana skin, and furthermore there would be no probability of the banana skin being on the floor as an incident in conducting the business of the Kroger store. The company may and probably does sell bananas, but they are not generally sold to be eaten on the premises. The presence of this refuse of a banana would, in all probability, be the act of a child, one of such tender years as to be unmindful of potential danger in leaving the skin on the floor.

The bunch of celery also seen by plaintiff on the floor near the point of her accident is hard to understand, unless knocked from its displayed position by plaintiff's foot coming in contact with the vegetable basket after her slip and fall. It would be hard to understand how any employee or clerk would drop a bunch of celery and not know of it and pick it up instantly. Of course, it was not at that particular location for display and sale. If we indulge in inferences, we are inclined to the belief that it is just as inferable that the bunch of celery was dropped by some excited customer immediately following the fall. The only purpose of the evidence relative to other substances on the floor, aside from the lettuce leaf, would be to show negligence in permitting general debris to be present in the aisle where people walk. Our analysis of the evidence touching the banana skin and the bunch of celery brings to our mind the conclusion that their presence was more readily explainable upon other theories than upon the theory of the action or inaction of the management of the store.

Under the state of the record in this case, to hold the Kroger Company liable would be the equivalent of saying that the owners of stores are insurers of the safety of their customers whenever it be shown that a substance upon which a customer slips had a nexus with the operation of the store. We are unable to think that Ohio courts would desire to go that far in their announcement of the law.

It is our conclusion that the trial court was in error in not sustaining defendant's motion to direct a verdict at the close of plaintiff's testimony and renewed at the close of all the testimony. This court now entering the judgment which should have been entered below, enters final judgment for plaintiff in error.

Judgment for plaintiff in error.

HORNBECK, P.J., and KUNKLE, J., concur.