This is a slip and fall case. Judgment was rendered for plaintiff on the jury verdict. The parties will be referred to here as they were in the trial court.
As we said in Swan v. Kroger Company, 452 S.W.2d 793 (Tex.Civ.App., Beaumont, 1970, error ref., n. r. e.), the law in this state is well settled as to the necessary allegations and proof in order to establish liability against the store operator for an injury received from a fall because of a foreign substance upon the floor. The landmark case is H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, 502 (Tex.Civ. App., San Antonio, 1949, error ref., n. r. e.), in which it is stated that a plaintiff must show:
The parties agree there is no evidence that defendant put the foreign substance (in this case, oil) on the floor (in this case, a parking lot) or that defendant knew the foreign substance was on the floor and wilfully or negligently failed to remove it. Plaintiffs rely solely upon the basis that the foreign substance had been on the parking lot for such a period of time that it would have been discovered and removed by defendant, had the defendant exercised ordinary care. The jury answered the series of isues, based upon that premise, favorably to plaintiffs. Defendant's primary complaint is that there was no evidence in the record to support those findings. In passing upon these points of error, we look only to the favorable evidence supporting such findings. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The evidence shows this incident occurred in the parking lot of the East Town Shopping Center in Orange, Texas, owned by defendant, J. Weingarten, Inc. Between 4:00 and 4:30 P.M., on a Saturday afternoon, plaintiff, Lillie Mae Anderson, went there in an automobile with her sister-in-law and children. As plaintiff got out of
Cal Myers was called as a witness by plaintiffs and testified to the following: He was employed as a part-time investigator for the law firm representing plaintiffs. He had retired from the army after twenty years' service. While in the army he was a maintenance officer for eight years, and shop supervisor for six years, and on seven different occasions had a huge parking lot to take care of. He was familiar with the problem of dripping crankcase oil on a surface similar to the Shopping Center. When asked to explain his opinion as to how oily surfaces can build up, he replied:
These questions and answers followed:
The foregoing resume and quotations contain all of the evidence in this record on the question before us. It is apparent that no witness was produced to show the oil had been seen on the parking lot for any length of time and the plaintiffs were compelled to establish this necessary element in their case by circumstantial evidence. A somewhat similar case is reflected by an earlier opinion of this court in S. H. Kress & Co. v. Selph, 250 S.W.2d 883, 890 (Tex.Civ.App., Beaumont, 1952, error ref., n. r. e.) The plaintiff in the Selph case testified she fell in front of the candy counter when she stepped on a piece of candy. She examined both her shoe and the place where she fell and testified the candy had been stepped on before she did, and had brush marks on it. The evidence also showed that defendants used brooms to sweep the floor. We quote the following from that opinion:
In Goodson v. Southland Corporation, 454 S.W.2d 823 (Tex.Civ.App., El Paso, 1970, error ref., n. r. e.), the plaintiff testified that after she fell she observed a brownish substance on the floor, part of which was sticky and part just wet. The jury found the substance to be an Icee which is a flavored carbonated ice product sold in paper cups. Plaintiff in the Goodson case relied upon a jury finding that the substance had been on the floor a sufficient period of time for defendant, in the exercise of ordinary care, to have discovered it. The evidence on the length of time came from a witness who testified that she had worked with an Icee machine for a year and a half, and she knew it would take six minutes for an Icee to melt and approximately thirty minutes for one to dry to a sticky substance. The El Paso Court of Civil Appeals held this evidence supported the jury finding.
In Isaacs v. American Petrofina (5th Cir. 1966), 368 F.2d 193, plaintiff slipped on some oil in a service station. The evidence showed the oil must have been on the driveway at least twenty minutes and it did not come from the car the plaintiff was riding in and no other cars were around during the time plaintiff was in the station. That court reversed an instructed verdict for defendant, holding the evidence raised a question of fact for the jury to determine as to whether the oil had been on the floor for such a period of time that it would have been discovered by defendant in the exercise of ordinary care.
H. E. Butt Grocery Company v. Marroquin, 466 S.W.2d 837, 838 (Tex.Civ.App., San Antonio, 1971, no writ), is a venue case. The Court of Civil Appeals reversed an order of the trial court overruling defendant's plea of privilege. It was held by the appellate court that there was no evidence of probative force to support an implied finding that the foreign substance had been on the floor for such a period of time that defendant acting with ordinary care would have discovered it. In that opinion a resume of the evidence was given as follows:
The "no-evidence" points are overruled. There is more than a scintilla of evidence to support the jury findings when we construe the evidence and reasonable influences in the most favorable light in support of such findings.
Defendant has a series of points of error contending the jury findings are contrary to the great weight and preponderance of the evidence. In passing upon these points we consider the entire record. These points of error are sustained.
Defendant's store manager testified plaintiff called him about 7:00 P.M. the afternoon she fell. He went to the place she indicated she had fallen and found a broken milk bottle, but no oily substance. In a written statement admitted in evidence, made about a month after this incident, plaintiff stated she slipped on a piece of glass and did not mention oil. Plaintiff's family doctor testified plaintiff came to him for treatment and in the history he took she told him she stepped on something she thought was a piece of glass and slipped. All of the evidence shows she cut her big right toe in the accident. Plaintiff was the only witness who gave the testimony that oil was on her shoe when it was returned to her. Neither the sister-in-law who picked up the shoe nor the son who returned it to plaintiff was called as a witness. Plaintiff's testimony that the oil was old and dirty could be construed to mean it had been in the automobile from which it dripped for a long time, and not give any indication as to how long it had been on the parking lot surface. Cal Myers's testimony could be construed to mean that the build-up of oil and sand and dust as described by him in his hypothetical case would become more slippery with time, but not as a statement that if it had just dripped from an automobile it would not be slippery. In view of all of this evidence, we conclude these findings by the jury to be clearly wrong and manifestly unjust.
The remaining points of error are found to be without merit and are overruled.
Reversed and remanded.