Melton ex rel. Melton v. Allied Supermarkets, Inc.

456 S.W.2d 644, 1970 Mo. App. LEXIS 584
CourtMissouri Court of Appeals
DecidedJune 12, 1970
DocketNo. 33579
StatusPublished
Cited by2 cases

This text of 456 S.W.2d 644 (Melton ex rel. Melton v. Allied Supermarkets, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Melton ex rel. Melton v. Allied Supermarkets, Inc., 456 S.W.2d 644, 1970 Mo. App. LEXIS 584 (Mo. Ct. App. 1970).

Opinion

DOERNER, Commissioner.

Plaintiff, a minor, by his mother as next friend, sued to recover for personal injuries alleged to have been suffered as the result of defendant’s negligence while he was a customer in defendant’s supermarket. At the close of plaintiff’s evidence the court sustained defendant’s motion for a directed verdict, and after unavailing post-trial motions plaintiff appealed.

On March 18, 1966, plaintiff, then six years and eight months old, together with his sister, Cynthia, eight years of age, were sent by their mother to defendant’s store to purchase food. Defendant’s employees had stacked five cases of bottled beer, one case on top of the other, approximately in the center of one of the aisles. Each case contained twelve 32-ounce quart bottles, in cardboard boxes, the bottles being separated by dividers. The top two cases had the tops and one side partially removed so that some of the bottles could be viewed and removed from the display by shoppers. The store manager, called as a witness by plaintiff, estimated that each case weighed fifty pounds. No witness testified to the dimensions of the cases, but the white tab attached to plaintiff’s Exhibit 1, a photograph of cases stacked as were those at the time of the incident, indicates that each case was 1U/2 inches by 15½ inches. The third dimension is not stated, but the photograph shows that the greatest [645]*645dimension, 15½ inches, was the length of the cases and ran perpendicular to the aisle. The same source indicates that the aisle in the store'was 9 feet, 7 inches wide,

As plaintiff states in his brief with commendable frankness, “ * * * The record is not clear as to what caused the boy to fall against the cases. * * * ” Nine years old at the time of trial, plaintiff related that he was walking down the aisle, followed by Cynthia, who was pushing a shopping cart. On direct examination he first testified that he tripped ■ because “ * * * there’s bumps in the floor and the floor ain’t level, and they put something over there.” However, on cross-examination plaintiff conceded that Cynthia may have hit him from behind with the cart. Cynthia stated on direct examination that the shoestring on plaintiff’s left shoe was untied, and that he tripped when he stepped on it with his right foot. Taxed with her deposition, in which she had said that plaintiff tripped on something, which could have been the front of the cart she was pushing, at the trial she stated that she could not remember having so testified. She did state that she saw no bumps on the floor, and that no one else was around when plaintiff tripped and fell against the stacked cases of beer. Defendant’s store manager, called as a witness by plaintiff, testified on cross-examination that the floor of the store was made of terrazzo, and that there were no bumps, lumps or dips in it. The photographs introduced by plaintiff do not show any.

Plaintiff was likewise vague as to the manner in which he was injured. In his direct examination he testified that when he tripped he hit the beer cases and one of them fell on his head. On cross-examination, however, plaintiff stated that three or four of the cases were knocked completely over when he tripped and pitched into them, so that they were lying on the floor, and when asked, “Michael, if you can think back for us and remember, was it a whole case that struck you on the head or just one of the bottles?” he answered, “I think it was just one of the bottles.” He also said that he thought the bottle hit the floor first, before the glass came up and struck his head, cutting it.

Both plaintiff and Cynthia, his sister, conceded that while they were in the store they had been cautioned that it was against the rules to run in the store with the cart, and plaintiff thought that he had been running before the accident. But both testified that neither of them was running at the time it occurred. The store manager stated on direct examination that he was the father of six children, and that, in general, he knew what boys are like when they are six years old. He also testified, on cross-examination, that ceiling lights were located all the way up and down the aisle, and that there were also lights in the freezer cases adjacent to the aisle.

In their briefs both plaintiff and defendant cite a passage from an annotation in 20 ALR.2d 95, 98, which reads :

“The general rule that the owner or occupant of premises owes to an invitee thereon the duty to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purposes of the invitation, has been expressly or impliedly recognized in the particular fact situation where a customer or invitee in a store is injured by the fall of displayed or piled goods or objects.
“More specifically, it has been said that merchants are under a duty to display their goods so that they will not ordinarily fall and injure a customer. The storekeeper’s duty to keep his premises reasonably safe for invitees includes the duty to store its goods so that children, who may be expected on the premises, will not be injured by normal contact with displayed or stored merchandise. And where goods are stacked so that customers can help themselves from the pile, the storekeeper is required to stack them carefully, so that they will not topple if a customer using due care attempts [646]*646to take something from the top of the stack.”

As noted on page 104 of that annotation, most of the cases discussed therein were decided under the res ipsa loquitur doctrine, and involved factual situations, at least under the plaintiff’s evidence, in which stacked, stored or shelved merchandise under the control of the store owner, and for an unexplained reason, fell and injured the plaintiff. See, for example, Keady v. Stix, Baer & Fuller Co., Mo.App., 15 S.W.2d 379; Garfinkel v. B. Nugent & Bro. Dry Goods Co., Mo.App., 25 S.W.2d 122; Pollard v. J. J. Newberry Co., Mo.App., 228 S.W.2d 398. Relatively few cases are cited in which plaintiffs pleaded a cause of action based upon an improper stacking of merchandise or a failure to secure the same. Able counsel have not cited any analagous Missouri case, and our own research has not revealed one.

In the instant case plaintiff did not plead a cause of action under the res ipsa loqui-tur doctrine. What he alleged, in substance, was that the defendant’s supermarket was not “ * * * safe for the use of customers of said supermarket, including plaintiff in that said beer case was in danger of falling * * There is nothing in the record which raises even the slightest suspicion that the beer cases were stacked in such a manner that the stack was unsteady, crooked, or liable to topple upon a passing customer. Nor is there the slightest indication in the evidence that the cases were stacked in such a manner that one or more were liable to fall by reason of any normal contact with them by a shopper. In fact, plaintiff’s own evidence, his photographs depicting the place and manner in which the cases were stacked at the time of the occurrence, shows that each was stacked in a straight columnar fashion, one directly above the other. And plaintiff testified that before he tripped and pitched into them they were not falling or moving in any way.

Nor did the plaintiff’s evidence show that the stack of beer cases were in the nature of a trap, that they were concealed, or that they occupied so great a proportion of the aisle as to constitute an obstruction.

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Bluebook (online)
456 S.W.2d 644, 1970 Mo. App. LEXIS 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melton-ex-rel-melton-v-allied-supermarkets-inc-moctapp-1970.