PRATT v. WOMACK

PRATT v. WOMACK
1961 OK 10
359 P.2d 223
Case Number: 38910
Decided: 01/24/1961
Supreme Court of Oklahoma

DICK PRATT, J.B. PRATT AND W.B. PRATT, D/B/A PRATT GROCERY COMPANY, PLAINTIFFS IN ERROR,
v.
MYRTLE WOMACK, DEFENDANT IN ERROR.

Appeal from District Court of Love County; W.J. Monroe, Judge.

Syllabus by the Court

¶0 1. Although a storekeeper is not an insurer of the safety of his customer while in the store, he does owe the customer the duty of maintaining the premises, such as the aisles and other portions thereof usually used by the customer, in a reasonably safe condition for such use, and the duty to warn such customer of any dangerous conditions existing in the areas so used, the customer having the right to assume that it is safe to walk in the aisles near the counters for the purpose of making a selection of that which he or she intends to buy.
2. In a civil action for damages for personal injuries, all the plaintiff is required to do in order to establish a case is to make it appear more probable that the injury resulted in whole or in part from the defendant's negligence than from any other cause, which fact may be established by circumstantial evidence and the reasonable inferences that may be drawn therefrom.
3. Although the rule is otherwise as to temporary disability, there is a presumption that permanent disability will continue indefinitely, in absence of evidence indicating a substantial change in the condition of the injured party during the intervening period between the date of evidence tending to establish such disability and the date of trial.
4. Where trial court submits to jury an element of damages not supported by the evidence, error is harmless in view of disposition of case by Supreme Court requiring a remittitur by plaintiff.
5. Generally, any suggestion by plaintiff, plaintiff's counsel or any of plaintiff's witnesses that defendant is covered by liability insurance, whether accomplished inadvertently or intentionally, is improper and prejudicial to defendant, and an admonition to the jury to disregard same will not necessarily cure the prejudice.
6. Where, in an action for damages for bodily injuries, the jury is effectively informed by a witness for plaintiff that the defendant is covered by liabiliy insurance, prejudice results, and on appeal by defendant from judgment for plaintiff this court will grant appropriate relief either by requiring a remittitur or directing a new trial.

Action by Myrtle Womack, plaintiff against Dick Pratt, J.B. Pratt and W.B. Pratt, d/b/a Pratt Grocery Company, defendants, for damages for bodily injuries. Defendants appeal from judgment on verdict for plaintiff. Affirmed on condition of remittitur by plaintiff.

Butler, Rinehart & Morrison, Oklahoma City, Wilson Wallace, Ardmore, for plaintiffs in error.

J.W. Dixon, Marietta, Looney, Watts, Looney & Nichols, Oklahoma City, for defendant in error.

JACKSON, Justice.

¶1 Defendants appeal from judgment on verdict for plaintiff in the amount of $5,000 as and for damages for alleged bodily injuries caused by a stack of canned goods in defendants' grocery store falling on plaintiff's foot.

¶2 Defendants first contend, in Proposition I, that there was no evidence of negligence on the part of defendants, in that there was no testimony that defendants "stacked canned goods extremely high, at approximately six or seven feet, and in an awkward and crooked manner," as alleged in the petition. In this connection, it is argued that the cans could have been properly stacked and that a customer for example, could have caused them to become misaligned immediately prior to plaintiff's injury.

¶3 We think that the cases cited by defendants, although supporting the rule that there must be sufficient evidence of negligence to warrant submitting the issue to the jury, are distinguishable on the facts. In Whitehead v. Erle P. Halliburton, Inc., 190 Okl. 120,

¶4 In M & P Stores, Inc. v. Taylor, Okl.,

"Although the storekeeper is not an insurer of the safety of his customer while in the store, he does owe the customer the duty of maintaining the premises, such as the aisles and other portions thereof usually used by the customer, in a reasonably safe condition for such use, and to warn such customer of the dangerous conditions existing in the areas so used, said invitee having the right to assume that it is safe to walk in the aisles near the counters for the purpose of making a selection of that which he or she intends to buy."

See also, Great Atlantic & Pacific Tea Co. v. Mullen, Okl.,

¶5 In the instant case, plaintiff testified that at the time of the occurrence, canned goods were stacked irregularly on the shelves higher than she could reach and were leaning in several different places in the store and that they had been so stacked on previous occasions.

¶6 In Covington Coal Products Co. et al. v. Stogner, 181 Okl. 35,

"In a civil action for damages for personal injuries all the plaintiff is required to do in order to establish his case is to make it appear to be more probable that the injury came in whole or in part from the defendant's negligence than from any other cause, and this fact may be established by circumstantial evidence and the reasonable inferences that may be drawn therefrom."

¶7 We hold that there is sufficient evidence to make a prima facie case, on the theory that the cans were probably stacked by defendants' employees and/or that defendants knew or should have known of the condition for a sufficient length of time to have remedied same. J.C. Penney Co. v. Campbell, Okl.,

¶8 In defendants' Proposition 3, it is contended that there was insufficient evidence that plaintiff's injury was permanent to warrant submitting that element of damages to the jury.

¶9 Plaintiff testified that after first consulting Dr. M., in Marietta, Oklahoma, who treated and taped her foot, she went to a specialist at Ardmore, Dr. D.; that she was treated by him for two or three months, which treatment consisted of whirlpool treatments, massage, hot and cold applications, and taping and immobilization of the foot; that Dr. D. advised her to get crutches, and prescribed an inlay type of shoe for plaintiff to wear "from hereon", which plaintiff was wearing at the time of trial.

¶10 Dr. M., an osteopath, testified that when he examined plaintiff's foot on September 28, 1957, it was quite edematous, swollen and discolored. Examination indicated that her foot was quite tender over the arch, both on the anterior surface and on deep palpation on the sole of the foot, and plaintiff flinched quite noticeably during the examination. He applied supportive bandages and advised her to continue hot applications. He saw her about five times before referring her to Dr. D. and noticed no improvement in her condition.

¶11 Although Dr. D. had not examined plaintiff for a period of about a year and a half prior to trial, his findings at his last examination, on October 15, 1957, were, in part, as follows:

"The exact area of pain to be located around the cuboid and the second and third cuneiform bones, right foot. There was a mild edema on the lateral side of the foot. The foot motion disclosed a restricted dorsiflexion and plantar-flexion. In the standing position the right foot showed a definite limited dorsiflexion. Those were my physical findings. The x-ray examination * * * indicated no fracture of the bones in the right foot. There was a periosteitis of the cuboid and the second and third cuneiform bones with a rotation of the bucoid bone. The entire foot showed the pronation syndrome.

* * * * * *

"It will be necessary for the patient to continue wearing her orthopedic in-lays and her orthopedic shoes to maintain the proper function of her foot."

On direct examination, he testified?

"Q. Is that a permanent condition? A. It was at that time."

¶12 In the only case cited by defendants in support of this proposition, Griffin v. Asbury, 196 Okl. 484,

¶13 In the instant case, plaintiff's injuries were not purely subjective. At the time of trial, more than eighteen months after the injury, plaintiff was still wearing special orthopedic shoes prescribed by Doctor D. as necessary to maintain the proper function of her foot "from hereon."

¶14 We have held that there is no presumption that temporary disability will continue, and that evidence that a claimant in workman's compensation proceeding was temporarily disabled as of a given date would not support an award for temporary total disability made ten months later covering the intervening period. Ross v. Ross, 184 Okl. 626,

¶15 On the other hand, we have affirmed awards for permanent disability based on medical evidence as of a date several months prior to date of trial. Luper Transportation Co. v. Bramlett, Okl.,

"Hearings by the Industrial Commission often consume five or six months and are continued from time to time for further hearings in different parts of the state where the evidence may be reached more conveniently.

"To announce the principle urged by petitioner would result in a situation wherein the commission would either be bound by the testimony taken at the last hearing, or would require a repetition of all the testimony previously taken at every hearing."

¶16 In the instant case, no medical evidence was offered by defendant, and we find no indication in the evidence that plaintiff's condition had undergone any substantial change since the date of Dr. D.'s last examination, about a year and a half prior to trial. See Southern Drilling Co. v. Daley, 166 Okl. 33,

¶17 We therefore hold that Dr. D.'s opinion that plaintiff's injuries were permanent at the time of his last examination was sufficient to warrant submission of the issue of permanency to the jury. In the absence of evidence of a substantial change in condition, there is a presumption that a permanent condition will continue indefinitely.

¶18 Defendant next contends, in Proposition Four, that there was no evidence to support the allegation of medical expenses in the amount of $550, and that therefore the court erred in submitting that element of damages to the jury.

¶19 We agree with this contention. The record being devoid of any evidence to support that allegation, the court should have reduced the allowable amount of damages submitted to the jury by the amount claimed for that item.

¶20 In view of our final disposition of this case, however, requiring a remittitur by plaintiff, such error was harmless. Kurn v. Manley, 194 Okl. 574,

¶21 Defendants' final contention, in Proposition 2, is that the trial court should have granted a mistrial because of the injection of insurance into the case, which occurred during the testimony of plaintiff's husband, Mont Womack, as follows:

"Q. What was your conversation with the manager three or four days afterwards? A. We were just talking about the foot being so sore, and that he had better see about it, see into it, you know. I was very sure that they carried compensation."

¶22 Defense counsel immediately moved the trial court to declare a mistrial, which motion was overruled, and the jury was admonished to disregard the statement.

¶23 Plaintiff argues that the error, if any, was harmless, citing M & P Stores, Inc. v. Taylor, Okl.,

"Where the statement was voluntarily made by defendant's witness in answer to a proper question on cross-examination, with no further allusion thereto, we hold that the court's refusal to grant a mistrial was proper." (Emphasis added.)

¶24 In the instant case, the suggestion that defendants were covered by liability insurance emanated from one of plaintiff's witnesses, which renders our holding in M & P Stores, Inc. v. Taylor, supra, inapplicable.

¶25 Plaintiff also argues that the statement was barely audible and could barely be heard, and that the court admonished the jury to disregard same. We are unable to determine definitely from the record whether the jury heard the statement or not. The trial court evidently believed they might have heard it, otherwise he would not have deemed it necessary to admonish them to disregard it. We decline to assume that the statement was not heard by the jury.

¶26 We have held that such an admonition will not cure the prejudice. Dolliver v. Lathion, 183 Okl. 329,

¶27 In Redman v. McDaniel, Okl.,

"In some of our former decisions where plaintiffs informed the jury that defendants were protected by insurance, we refused to reverse the trial court because we could not say that a new trial would result in a different finding, or result in a smaller verdict. Stated another way, we refused to reverse because we were unable to say that the improper conduct had any prejudicial influence upon the jury. These decisions are not realistic. They are in conflict with the view that prejudice results when the jury knows that an insurance company will have to pay the judgment. It permits a plaintiff to deliberately inject beneficial prejudice into the case which experience has demonstrated will usually be reflected in a larger recovery. It permits a plaintiff to retain that larger recovery for the simple reason that it is difficult, if not impossible, for this court to segregate and identify the harm done. This type of decision encourages improper conduct.

"Since we are of the view that knowledge of insurance coverage will cause a jury to render a larger verdict, and in some cases render a verdict in favor of the plaintiff when otherwise they would not, it becomes the duty of this court to compensate for the harm done by appropriate action. In some cases this may be done by directing a remittitur. In other cases it may be necessary to grant a new trial."

¶28 The action taken by this court will depend upon the facts and circumstances of each particular case.

¶29 In Ruth v. Reeves, Okl.,

¶30 In view of the errors noted herein, we think justice requires a remittitur of $1,500. The judgment is therefore affirmed, upon condition that plaintiff file a remittitur of $1,500 in the trial court within ten days from the issuance of mandate herein, failing which the judgment is reversed, with directions to grant defendants a new trial.