Fanelty v. Rogers Jewelers, Inc.

55 S.E.2d 493, 230 N.C. 694, 1949 N.C. LEXIS 442

• Court: Supreme Court of North Carolina
• Decided: October 12, 1949
• Status: Published

Opinion

EeviN, J.

First consideration will be given to the assignments of error relating to the exclusion of testimony.

The plaintiff was not hurt by the rulings covered by her first and second exceptions because substantially the same evidence was subsequently admitted. Metcalf v. Ratcliff, 216 N.C. 216, 4 S.E. 2d 515; Bryant v. Reedy, 214 N.C. 748, 200 S.E. 896; Keith v. Kennedy, 194 N.C. 784, 140 S.E. 721.

The third exception challenges the ruling of the court excluding testimony tending to show that at least one month after the plaintiff’s fall Bill Avery, the manager of the defendant’s store, stated to plaintiff’s counsel in a casual conversation that the store had “a very dangerous front.” There was no fact or circumstance indicating that Avery had any independent authority to speak for the defendant as to the subject of the declaration. Stansbury: North Carolina Evidence, section 169. This being so, the propriety of the ruling in question is to be determined by recourse to the general rule that an admission of an agent is not competent against his principal unless it meets this threefold test: (1) The admission must be relevant to the issue; (2) the agent must have been acting within the scope of his authority in making the admission; and (3) the transaction to which the admission relates must have been pending at the time when it was made. Salmon v. Pearce, 223 N.C. 587, 27 S.E. 2d 647; Caulder v. Motor Sales, Inc., 221 N.C. 437, 20 S.E. 2d 338; Howell v. Harris, 220 N.C. 198, 16 S.E. 2d 829; Hester v. Motor Lines, 219 N.C. 743, 14 S.E. 2d 794; Bank v. Toxey, 210 N.C. 470, 187 S.E. 553; Staley v. Park, 202 N.C. 155, 162 S.E. 202; Bank v. Sklut, 198 N.C. 589, 152 S.E. 697; Pangle v. Appalachian Hall, 190 N.C. 833, 131 S.E. 42; Berry v. Cedar Works, 184 N.C. 187, 113 S.E. 772; Bank v. Wysong & Miles Co., 177 N.C. 284, 98 S.E. 769. The declaration of the manager of the defendant’s store did not fulfill the second and third prerequisites to admissibility, and was rightly rejected. Moreover, the statement was incompetent for another reason. It was an expression of opinion rather than a statement of fact. National Life & Accident Ins. Co. v. McGhee, 238 Ala., 471, 191 So. 884; Wert v. Equitable Life Assur. Soc. of U. S., 135 Neb. 654, 283 N.W. 506; Edwards v. Maryland Motorcar Ins. Co., 204 App. Div. 174, 197 N.Y.S. 460.

The fourth and fifth exceptions are to the rejection of evidence indicating that at some undisclosed time subsequent to plaintiff’s fall the defendant covered the part of the. entryway between the entrance door and the sidewalk with rubber matting. The testimony relating to this change in the condition of the premises was offered for the avowed purpose of showing that defendant was negligent on the particular occasion in controversy. Consequently, it was properly excluded. Shelton v. R. R., 193 N.C. 670, 139 S.E. 232; Farrall v. Garage Co., 179 N.C. 389, 102 S.E. 617; Muse v. Motor Co., 175 N.C. 466, 95 S.E. 900; Boggs v. Mining Co., 162 N.C. 393, 78 S.E. 274; Tise v. Thomasville, 151 N.C. 281, 65 S.E. 1007; Aiken v. Manufacturing Co., 146 N.C. 324, 59 S.E. 696; Lowe v. Elliott, 109 N.C. 581, 14 S.E. 51. The rule excluding evidence of subsequent repairs and precautions when offered to establish antecedent negligence is founded on the sound policy “that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers.” Terre Haute & I. R. Co. v. Clem, 123 Ind. 15, 23 N.E. 965, 18 Am. St. R. 303, 7 L.R.A. 588.

The sixth and seventh exceptions embrace rulings of the court rejecting testimony of the plaintiff’s witness, Miss Annie Davis, that she visited the defendant’s store right after the terrazzo flooring was put in the entryway; that she then observed what she took to be wax upon “the whole floor” of the store; and that she thereupon told one of the defendant’s clerks that “it was too slippery.” This witness could not fix the date of her observation and remark. The plaintiff testified, however, that the terrazzo was placed in the entryway “several months — six months or a year” before her fall. The testimony under scrutiny was tendered by plaintiff as a basis for invoking the evidential rule that “proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time.” 31 O. J.S., Evidence, section 124. The- court rightly refused to admit the testimony even if it be assumed that the observation and remark of the witness applied to the entryway as well as the inside of the store. The condition described by the witness was of a highly temporary character. Hence, no presumption of its continuance arose. In re Will of George v. Credle, 176 N.C. 84, 97 S.E. 151; Ross v. City of Stamford, 88 Conn. 260, 91 A. 201; Wigmore on Evidence (3d Ed.), section 437.

The remaining assignment of error is directed to the entry of the compulsory nonsuit, and raises this query: Was the testimony produced by plaintiff at the trial sufficient in law to support findings that defend ant failed to exercise proper care in performing some legal duty wbicb it owed to tbe plaintiff under tbe circumstances in wbicb tbey were placed, and tbat sueb negligent breach of duty was tbe proximate cause of plaintiff’s fall and injury? Truelove v. R. R., 222 N.C. 704, 24 S.E. 2d 537; Mills v. Moore, 219 N.C. 25, 12 S.E. 2d 661; Gold v. Kilter, 216 N.C. 511, 5 S.E. 2d 548. Tbis question must be answered in tbe negative.

It was undoubtedly tbe legal duty of tbe defendant in its capacity as a storekeeper to exercise ordinary care to keep tbe entryway to its sbop in a reasonably safe condition for tbe use of customers entering or leaving tbe premises, and to warn tbem of bidden perils in tbe entryway known to it or ascertainable by it through reasonable inspection and supervision. Harris v. Montgomery Ward & Co., ante, 485, 53 S.E. 2d 536; Ross v. Drug Store, 225 N.C. 226, 34 S.E. 2d 64; Watkins v. Furnishing Co., 224 N.C. 674, 31 S.E. 2d 917; Pratt v. Tea Co., 218 N.C. 732, 12 S.E. 2d 242; Griggs v. Sears, Roebuck & Co., 218 N.C. 166, 10 S.E. 2d 623; Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E. 2d 199; Pridgen v. Kress & Co., 213 N.C. 541, 196 S.E. 821; Williams v. Stores Co., Inc., 209 N.C. 591, 184 S.E. 496; Fox v. Tea Co., 209 N.C. 115, 182 S.E. 662; Cooke v. Tea Co., 204 N.C. 495, 168 S.E. 679; Farrell v. Thomas & Howard Co., 204 N.C. 631, 169 S.E. 224; Clark v. Drug Co., 204 N.C. 628, 169 S.E. 217; Parker v. Tea Co., 201 N.C. 691, 161 S.E. 209; Bowden v. Kress, 198 N.C. 559, 152 S.E. 625; Bohannon v. Stores Company, Inc., 197 N.C. 755, 150 S.E. 356. But tbe testimony will not justify tbe conclusion tbat tbe defendant breached its duty to tbe plaintiff in any respect.

No inference of actionable negligence on tbe part of tbe defendant arises from tbe mere fact tbat tbe plaintiff suffered personal injury from a fall occasioned by stepping on some slippery substance on tbe defendant’s premises. Harris v. Montgomery Ward & Co., supra; Fox v. Tea Co., supra; Parker v. Tea Co., supra; Bowden v. Kress, supra. Tbe evidence does not disclose tbe size or dangerous character of such substance or indicate tbat tbe defendant placed or permitted it to be in tbe entryway. Pratt v. Tea Co., supra; Brown v. Montgomery Ward & Co., supra. Indeed, tbe testimony of tbe plaintiff’s witness, Wayne Broad-burst, affirmatively absolves defendant from responsibility for putting it there. No fact or circumstance adduced at tbe trial suggests tbat tbe substance bad been upon tbe floor of tbe entryway for any appreciable period of time before tbe plaintiff stepped upon it and fell. In consequence, tbe evidence does not support tbe theory tbat tbe defendant ignored an opportunity to discover tbe substance and avoid injury to plaintiff by removing it or warning plaintiff of its presence prior to tbe accident. Pratt v. Tea Co., supra; Fox v. Tea Co., supra; Cooke v. Tea Co., supra. Tbe fact tbat tbe surface of tbe terrazzo flooring was smooth and sloped downward from the entrance door to the sidewalk was insufficient of itself to show negligent construction of the entryway. Griggs v. Sears, Roebuck & Co., supra. Moreover, there was no proof of any causal relation between the surface and slope of the entryway and the plaintiff’s fall.

For the reasons given, the trial in the court below was free of legal error, and the judgment must be upheld.

Judgment affirmed.