Annotate this Case

191 S.E.2d 435 (1972)

16 N.C. App. 80


No. 7221SC576.

Court of Appeals of North Carolina.

September 20, 1972.

Certiorari Denied November 8, 1972.

*437 Billings & Graham, by Donald R. Billings, Winston-Salem, for defendant appellant.

*438 White & Crumpler, by James G. White and Michael J. Lewis, Winston-Salem, for plaintiff appellee.

Certiorari Denied by Supreme Court November 8, 1972.

BRITT, Judge.

Defendant's first assignment of error is addressed to the pleadings. Defendant contends that since the original complaint served in this action named only Satterfield Development Company as defendant and no new complaint or amendment was filed after Billy R. Satterfield was made a party defendant, that the complaint as originally filed fails to state a claim upon which relief can be granted against the individual defendant and since the trial court dismissed the action as to the corporate defendant, the entire action should now be dismissed. Defendant moves this court to dismiss the action under G.S. § 1A-1, Rule 12(b)(6), for failure to state a claim upon which relief can be granted. The record does not show that a Rule 12(b)(6) motion was made by the individual defendant at trial.

The question of whether a motion to dismiss an action for failure to state a claim upon which relief can be granted can for the first time be raised on appeal was answered in the negative by Morris, Judge, speaking for this court in the recent case of Dale v. Lattimore, 12 N.C.App. 348, 183 S.E.2d 417 (1971), cert. den. 279 N.C. 619, 184 S.E.2d 113. No useful purpose would be served by repeating what was said there. The assignment of error is overruled.

Defendant next assigns as error the failure of the trial judge to direct a verdict for defendant at the conclusion of all the evidence for that plaintiff failed to show actionable negligence, and failure to enter judgment for the defendant notwithstanding the verdict or to set the verdict aside.

In deciding whether a plaintiff's evidence is sufficient to withstand a defendant's motion for a directed verdict in a jury case, both the trial and appellate courts must adhere to the same principles that governed under our former procedure with regard to sufficiency of evidence to withstand a motion for nonsuit under former G.S. § 1-183. Pergerson v. Williams, 9 N.C.App. 512, 176 S.E.2d 885 (1970); Sawyer v. Shackleford, 8 N.C. App. 631, 175 S.E.2d 305 (1970); Musgrave v. Mutual Savings & Loan Assoc., 8 N.C.App. 385, 174 S.E.2d 820 (1970). All of plaintiff's evidence must be taken as true and considered in the light most favorable to him giving to plaintiff the benefit of all reasonable inferences and resolving all inconsistencies in his favor. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969); Pergerson v. Williams, supra.

The issue submitted by this assignment of error is whether plaintiff's evidence in this case, when considered in the light most favorable to plaintiff, is sufficient to support the jury finding. We agree with the trial judge that it is.

Plaintiff introduced evidence which, if believed, tended to show that a foreign substance, oil, was present on the approach area of the lane on which plaintiff tried to bowl, that the presence of this foreign substance was reported to defendant's manager prior to the time plaintiff arrived to bowl, and that plaintiff without knowledge of its presence slipped and fell on this slippery substance sustaining personal injury. Considered in the light most favorable to plaintiff, the evidence tended to establish negligence on the part of the defendant with injury to plaintiff proximately resulting therefrom. "Where the slippery substance is placed on or negligently applied to the floor by the proprietor or his servants or employees, the proprietor is liable if injury to an invitee proximately results." Forrest v. S. H. Kress & Co., 1 N.C.App. 305, 308, 161 S.E.2d 225, 227 (1968). Further, defendant denied the presence of a foreign substance on the approach area and said that if the presence of oil was reported, it was removed immediately. The facts were in dispute and as Sharp, Justice, *439 said in Cutts v. Casey, 278 N.C. 390, 418, 180 S.E.2d 297, 312 (1971): "`A verdict may never be directed when the facts are in dispute. The judge may direct a verdict only when the issue submitted presents a question of law based on admitted facts.'"

We hold that the trial court did not err in denying defendant's motions for directed verdict, for judgment n. o. v., and to set the verdict aside. G.S. § 1A-1, Rule 50.

Defendant's third assignment of error relates to that portion of the trial judge's instruction to the jury that charged as follows:

"So now, members of the jury, as to this first issue, I instruct you that if you find from the evidence and by its greater weight that the defendant, Billy Satterfield, or his agent or employee, negligently created a dangerous condition on the player approach to bowling alley lane No. 10 by putting oil or some other slippery substance there when he knew, or should have known, a bowler was likely to go there and to slip on it, or if you find by the greater weight of the evidence that a foreign substance was on the floor at this place where the plaintiff was injured . . . ." (Emphasis added.)

Defendant contends that the trial court failed to declare and explain the law arising on the evidence in conformity with G. S. § 1A-1, Rule 51(a), by failing to limit the jury determination of negligence to the absence or presence of oil on the approach.

Here, plaintiff was an invitee of defendantan invitee being a person who goes upon premises for the mutual benefit of himself and the possessor. 6 Strong, N.C.Index 2d, Negligence, § 52; Pafford v. J. A. Jones Constr. Co., 217 N.C. 730, 9 S.E.2d 408 (1940); Quinn v. P. & Q. Supermarket, Inc., 6 N.C.App. 696, 171 S.E.2d 70 (1969). The fact that plaintiff was an invitee did not make defendant an insurer of his safety while he was a customer on the premises; defendant is liable to plaintiff only for injuries sustained as a result of defendant's actionable negligence. Farmer v. Wellons Village Shopping Center Drug Corp., 7 N.C.App. 538, 173 S.E.2d 64 (1970).

Since plaintiff was an invitee, it was defendant's duty to exercise ordinary care to maintain the premises intended for plaintiff's use in a reasonably safe condition and thus not expose him unnecessarily to danger; and, further, to warn plaintiff of hidden defects and dangers of which defendant had knowledge, or in the exercise of reasonable diligence in supervision and inspection should have had knowledge and of which plaintiff did not have knowledge. Wrenn v. Hillcrest Convalescent Home, Inc., 270 N.C. 447, 154 S.E.2d 483 (1967); Wegner v. Delly-Land Delicatessen, 270 N.C. 62, 153 S.E.2d 804 (1967); Routh v. Hudson-Belk Co., 263 N.C. 112, 139 S.E.2d 1 (1964); Sanders v. Anchor Co., 12 N.C. App. 362, 183 S.E.2d 312 (1971); Farmer v. Wellons Village Shopping Center Drug Corp., supra; Quinn v. P. & Q. Supermarket, Inc., supra.

Certainly, defendant would be liable to plaintiff as an invitee should plaintiff be injured due to the presence of any foreign substance on the approach of which defendant had knowledge or which defendant through the exercise of reasonable diligence should have had knowledge and of which plaintiff did not have knowledge. Although there was direct testimony that oil was found on the approach on which plaintiff was injured, plaintiff himself did not limit the substance upon which he slipped to oil but testified that he hit a "wet" or "slick" substance. Therefore, we believe that while the trial judge erred, semantically speaking, by instructing the jury that they might consider oil or "some other slippery substance," that the error was not prejudicial to defendant.

It is well settled that the jury charge must be considered contextually as a whole, *440 and when so considered if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed, we will not sustain an exception for that the instruction might have been better stated. 7 Strong, N.C.Index 2d, Trial, § 33; Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967). The assignment of error is overruled.

In his next assignment of error defendant contends that although the medical testimony showed plaintiff's leg to be approximately one-half inch shorter as a result of his injury, that in light of Dr. Goode's testimony that in his opinion this shortening should not be either disabling or inconveniencing to plaintiff, the judge was not justified in permitting the jury to consider permanent disability on the issue of damages.

Several courts have either termed the shortening of a leg a permanent injury or stated that evidence of the shortening of a leg would justify a jury determination of permanent injury. See Teesdale v. Anschutz Drilling Company, 138 Mont. 427, 357 P.2d 4 (1960), leg shortened two inches; Peagler v. Atlantic Coast Line Railroad Company, 234 S.C. 140, 107 S.E.2d 15 (1959), leg shortened two inches; New York Life Insurance Co. v. Williamson, 53 Ga.App. 28, 184 S.E. 755 (1936), leg shortened; Heil & Seidel, 249 Ky. 314, 60 S.W.2d 626 (1933), leg shortened one-half inch; O'Dell v. James Stewart & Co., 96 Neb. 147, 147 N.W. 121 (1914), leg shortened three-fourths inch.

Our Supreme Court has held that where there is evidence from which a conclusion of permanent injury proximately resulting from the wrongful act may properly be drawn, the court should instruct the jury so as to permit its inclusion in an award of damages. Short v. Chapman, 261 N.C. 674, 682, 136 S.E.2d 40, 46 (1964). We hold that the instruction was proper in this case.

We have considered defendant's other assignments of error and find them to be without merit.

No error.

MALLARD, C. J., and CAMPBELL, J., concur.