Opinion
No. 43584.
June 14, 1965.
1. Negligence — injury sustained by invitee in family room of funeral home — no act of negligence shown.
Action of funeral home employee, who had escorted invitee to chair, in releasing invitee while she was in front of chair and while her daughter still held invitee's arm was not negligence.
2. Pleading — proof should conform to allegations of declaration.
Proof should conform to allegations of declaration.
3. Negligence — injury sustained by invitee in family room of funeral home — changing theory of case — evidence improperly admitted over objection.
Where declaration in personal injury case charged that chairs of funeral home were placed too close together and that they caused plaintiff to trip, stumble and fall, evidence that funeral home employee voluntarily assumed duty of assisting plaintiff to her seat and then failed to perform such duty was improperly admitted over objection.
4. Negligence — same — same — issue of liability improperly submitted to jury.
Where declaration in personal injury action did not charge that family room of funeral home was overcrowded but only that chairs were placed too close to each other, issue whether family room, in which invitee broke her kneecap as she sat down, was overcrowded during funeral service was improperly submitted as ground of liability.
Headnotes as approved by Inzer, J.
APPEAL from the Circuit Court of Covington County; HOMER CURRIE, J.
Allred Adams, Collins, for appellant.
I. The lower court erred in permitting the appellee, over appellant's repeated objections, to present testimony that the stiff right knee which the appellee had, prior to the injury sued on, was obvious to anyone who looked at her; and in permitting the appellee, over appellant's repeated objections, to attempt to prove that the defendant knew, or should have known, of such pre-existing right knee; and, the lower court erred in permitting appellee to amend her declaration, after the appellee had presented all her evidence in chief, to allege that the defendant knew or should have known that appellee suffered from a pre-existing stiff knee and that the defendant, therefore, owed the appellee a special legal duty by virtue thereof; and, the lower court erred in denying to appellant, after the above amendment to the declaration was granted, a mistrial and a continuance of this cause.
II. The lower court erred in overruling the motion of the appellant, made at the close of the appellee's case in chief, to exclude all of the evidence adduced on behalf of the appellee and to direct the jury to return a verdict for the appellant; and, the lower court erred in overruling the renewal of said motion made by the appellant after the appellee had finally rested; and, the lower court erred in refusing the appellant's requested instruction to the jury to find for the defendant. Beard v. Williams, 172 Miss. 880, 161 So. 750; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; McAlpin v. McAlpin, 245 Miss. 25, 147 So.2d 623; Williams v. Hood, 237 Miss. 355, 114 So.2d 854.
III. The lower court erred in granting plaintiff's instruction Number Two, which reads as follows: "The Court instructs the jury for the plaintiff, Mrs. Winston Dunn, that the proprietor of a store, office, or similar place of business owes to persons present on the premises as invitees the duty of exercising ordinary, reasonable care to see that the portions of the premises which may be expected to be used by invitees are reasonably safe; that in this case, the defendant owed unto the plaintiff, as an invitee upon its premises, the duty of exercising ordinary reasonable care to see that the portions of the premises of the defendant which was expected to be used by the plaintiff was reasonably safe. That is, the family room of the funeral home of the defendant; and, should you find from a preponderance of the evidence, that the defendant failed to exercise its duty or ordinary reasonable care on said occasion, toward the plaintiff, in that the defendant through its agents and employees, caused the seats in the said family room to be placed in such close proximity that plaintiff was unable to safely use the same, then defendant was guilty of negligence, and should you further find that such negligence of the defendant, if any, was the proximate or contributing cause of the injuries and damages sustained by the plaintiff, then you should reach a verdict for the plaintiff."
IV. The lower court committed reversible error in granting plaintiff's instruction Number Three, which reads as follows: "The Court instructs the jury for the plaintiff, Mrs. Winston Dunn, that if you find for the plaintiff, it will be your duty to fix the amount of the verdict to that sum which will be reasonable and fair compensation for the injuries and damages sustained by the plaintiff, if any, as a proximate result of the negligence of the defendant, if any, and in calculating the amount of this verdict, you may take into consideration all of the testimony, if any, concerning any physical pain and mental anguish endured by the plaintiff, and all of the evidence, if any, concerning any pain and mental anguish that may be endured by plaintiff in the future as a result of the injuries received in said accident; all hospital bills, doctor bills and other medical expenses, if any, sustained by the plaintiff as the proximate result of said accident, and any future medical, hospital or doctor bills, if any, which the evidence shows the plaintiff may sustain as a result of said accident; as all of such items are proper for the consideration of the jury in calculating the damages sustained and in fixing the amount of the verdict." Johnson v. Howell, 213 Miss. 195, 56 So.2d 491.
V. The amount of the verdict in this case is so excessive as to evince bias, passion and prejudice on the part of the jury against the defendant, and further shows unwarranted sympathy for the plaintiff.
John K. Keyes, John D. Kervin, Collins, for appellee.
I. Cited and discussed the following authorities: Cannady v. Espey, 230 Miss. 355, 93 So.2d 453; Carruth v. Easterling, 247 Miss. 364, 150 So.2d 852; Phillips v. Montgomery Ward Co., 125 F.2d 248; S.H. Kress Co. v. Markline, 117 Miss. 37, 77 So. 858; Western Union Telegraph Co. v. Blakely, 162 Miss. 854, 140 So. 336; Sec. 1511, Code 1942.
Appellee, Mrs. Winston Dunn, filed this suit in the Circuit Court of Covington County, wherein she sought to recover damages resulting from an injury incurred while she was an invitee on the premises of the funeral home owned and operated by appellant, Terrell Investment Company, Inc.
Appellee charged in her declaration that her injury was the proximate result of appellant's negligence, in that appellant placed the furniture and chairs in the family room of its funeral home in such a manner that they were too close together and did not leave room to pass through the passageway between the chairs. She further charged that on August 8, 1962 she was an invitee on the premises for the purpose of attending the funeral of her brother, and that when she attempted to pass between the chairs, their closeness each to the other caused her to stumble, trip and fall. She charged that as a result of her fall she suffered serious, painful and permanent injury.
Appellant answered the declaration, denied that appellee was injured as a result of any negligence on its part, and affirmatively charged that it had complied with every duty it owed appellee and had not been guilty of any negligence that caused or contributed to her injury.
The case was tried at the May 1964 term of court, and the jury returned a verdict in favor of appellee, fixing her damages at $4,500. A judgment was entered accordingly, and from this judgment Terrell Investment Company appeals to this Court.
The facts in this case most favorable to appellee reveal that appellee was at the time in question a lady approximately 50 years of age, and on the date in question she went to the funeral home owned and operated by appellant for the purpose of attending the funeral of her brother, Scott Chain. She arrived at the funeral home about 11:30 a.m. to attend the funeral scheduled for 2:00 p.m.
The record discloses that the entrance to the funeral home faces west, and that the seats in the chapel face east. The casket of Mr. Chain was placed at the east end of the chapel, and to the left of the place where the casket was placed, is a room referred to in the record as the "family room." The purpose of this room is to provide a place for the family to sit together, separate and apart from the general public attending the funeral. This room is about 16 x 15 feet, and normally, when a funeral is not being conducted, it has a couch and three or four chairs therein. On the day in question, sometime between twelve and one o'clock in the afternoon, the employees of appellant rearranged the furniture in the family room so that several rows of folding chairs were placed therein. These rows were about 18 inches apart, and provided a passageway for people to reach the chairs.
The proof shows that appellee had been injured in an automobile accident in 1949, and as a result thereof had a stiff right leg which she could not bend at the knee joint. Because of this stiff leg, she could not sit in one of the smaller folding chairs that were placed in the family room, and Mr. Billy King, an employee of appellant, at the request of Mrs. Hosey, a daughter of appellee, placed a larger chair at the end of the second or third row of chairs for appellee to sit in. This type chair is referred to in the testimony as an "overstuffed chair." One of the folding chairs and one of the overstuffed chairs of the same types as those used were introduced in evidence, and they are now before this Court and have been examined by us. About five minutes before time for the funeral to begin, Mr. Terrell, manager of the funeral home, drew the curtain between the casket and the people seated in the chapel, for the purpose of giving the family an opportunity to have a last view of the remains before the casket was closed. Appellee, with the assistance of her daughter and someone else, went with the rest of the family to view the remains of her brother. She became upset, and when she returned to her seat she was assisted by her daughter and Billy King. When she arrived at the chair where she had previously been seated, and at a time when she was in front of the chair, Mr. King released her, and when she sat down her right foot caught under the rung of a folding chair in front of her. She said when that happened her leg "popped like a rifle." She remarked to her daughter, who was holding her when she sat down, that she had broken her leg. She sat through the funeral, and then was carried to the hospital, where x-rays disclosed that the kneecap of her right leg had been broken. Her leg was placed in a cast, and she remained in the hospital for one week. She then returned home, and her leg remained in the cast six weeks longer. It was still giving her some trouble at the time of the trial.
(Hns. 1-3) Appellant contends among other things that the trial court was in error in refusing to grant its motion for a directed verdict or peremptory instruction. We think this contention is well taken. Appellant owed the duty to appellee and others who were invitees on his premises of using ordinary reasonable care to keep its premises in such condition as to be reasonably safe for such persons. The declaration charged that the chairs were placed so close together that they caused appellee to trip, stumble and fall. The evidence shows that appellee did not trip, stumble or fall, and she now contends that her injury was caused by the negligence of Billy King in failing to carry out his duty to see that she was safely seated, after he had voluntarily assumed the duty of assisting her to her seat. We do not think this contention is well taken. Appellee testified that when Mr. King released her she was in front of her chair, and that her daughter at that time had hold on her arm. We do not think that the act of Mr. King in turning her loose at the time and place he did constitutes negligence. Especially is this true since proof on the part of appellee shows the chair in question was placed where it was at the direction of appellee's daughter, and that appellee had been seated in the chair prior to the time she arose to view the remains of her brother. Under these circumstances we do not think that the act of Mr. King constituted negligence. Furthermore, if such act had constituted negligence, appellee could not recover for such negligence under the state of the pleadings in this case. The record shows that appellant objected to the introduction of this evidence and other evidence on the the ground that there was no basis for this evidence charged in the declaration. The objections were overruled by the trial court. This action of the trial court was error. The proof should conform to the allegations of the declaration, and appellee should not have been permitted to base her claim on one theory and then introduce evidence to recover a verdict based on an entirely different theory. State Highway Comm'n v. Jacobs, 248 Miss. 476, 160 So.2d 201 (1964); State Highway Comm'n v. Rhymes, 248 Miss. 468, 160 So.2d 197 (1964).
(Hn 4) Appellee also contends that the trial court properly submitted to the jury the question of whether the family room was overcrowded during the funeral service of her brother. We do not find anywhere in the declaration a charge that the room was overcrowded. The charge is that the chairs were placed too close to each other. The proof shows that appellee was aware of how the chairs were placed in the room prior to and at the time she was injured. The chairs were placed as they usually and customarily were placed during a funeral, and there is no showing that appellant could have reasonably foreseen that appellee or anyone else would sustain injury as a result of the way they were placed. We said in Paramount-Richards Theatres v. Price, 211 Miss. 879, 53 So.2d 21 (1951), that:
The owner of the premises is not required to anticipate an unusual and improbable result, such as the injury sustained by the plaintiff in this case. The owner is merely required to anticipate a result that is more apt to happen than not to happen, that is to say he must anticipate only such a result as is reasonably foreseeable as a probable consequence of his act. Gulf Refining Co. v. Williams, 183 Miss. 723, 185 So. 234; Louisiana Oil Corp. v. Davis, 172 Miss. 126, 158 So. 792. (211 Miss. at 887)
This statement is fully applicable to the facts in this case, and we do not think that appellant could have reasonably foreseen that appellee or anyone else would be injured, as a result of the way the chairs were placed, or the manner in which the family room was used. Wallace v. J.C. Penney Co., 236 Miss. 867, 109 So.2d 876 (1959); Mauney v. Gulf Refining Co., 193 Miss. 421, 8 So.2d 249 (1942).
Our sympathies are with this lady who sustained a severe injury, but we are constrained to apply the true test of liability, and when we do this, we must reverse this case and enter judgment here for appellant.
Reversed and judgment here for appellant.
Ethridge, P.J., and Gillespie, Brady and Patterson, JJ., concur.