
    Niles v. Steiden Stores, Inc.
    Nov. 30, 1945.
    
      Chas. Will and M. Joseph Schmitt for appellant.
    Chas. W. Morris and Frank Garlove for appellee.
   Opinion of the Court by

Chief Justice Rees

Affirming.

The appellant, Dorothy Niles, was injured by a fall in_one of appellee’s stores in Louisville. She brought this action against the appellee to recover damages, and in her petition alleged that her injuries were caused by “the dangerous, slippery and unsafe condition of the floors * * On the trial of the case the jury returned a verdict for the defendant, and reversal of the judgment .dismissing plaintiff’s petition is sought because of alleged errors in the admission and rejection of evidence and in the instructions.

It was plaintiff’s theory that the floor at the point where she fell had been oiled and left in a slippery and dangerous condition. Her own testimony on this point is vague. She assumed that the floor had been oiled and was slippery because “it looked unusually clean” and was “shiny.” Wilson Bower, appellee’s manager, was not in the store when the accident occurred, but Shirley Osborne, a butcher employed by appellee, was at the meat counter when appellant fell. The place of the accident was about 13 ft. from tbe meat counter according to appellant, and about 25 ft. according to Osborne. He went to ber assistance, and sbe got up and left tbe store. Appellant described ber injuries as follows: “I bad a skinned elbow, a bruised bead and separation of tbe sacro iliac joint, wbicb is tbe small vertebra or cartilage, or something, in my back, and, also, a discoloration of my hip and leg all of the way down.” X-ray'pictures were introduced in evidence, but tbe medical witnesses disagreed as to tbeir interpretation. Tbe weight of tbe medical testimony was to tbe effect that they showed no injury to tbe sacroiliac joint. Wilson Bower, manager of tbe store at tbe time tbe accident happened, and Shirley Osborne were introduced as witnesses by tbe appellant. They were asked concerning statements they were supposed'to have made concerning tbe slippery condition of tbe floor, Bower to Mrs. Kathryn Gr. Elder tbe day after tbe accident and Osborne to appellant at tbe time of tbe accident. Both denied making tbe statements. Mrs. Elder testified that on tbe day after tbe accident sbe was in tbe store, and Bower told ber Mrs. Niles bad slipped and injured herself and tbe floor was slippery. Tbe court instructed tbe jury to consider bis testimony only for tbe purpose of contradicting Bower if, in tbeir opinion, it did contradict him. Before Shirley Osborne testified appellant was asked these questions and made these answers:

“Q. Who picked you up? A. Mr. Osborne, the butcher.

“Q. Don’t answer this question. At tbe time that be picked you up did be make any statements? A. Yes, be did.”

Tbe appellee objected and its objection was sustained, but tbe court ruled that appellant might make an avowal at tbe conclusion of ber testimony. Out of the presence of tbe jury appellant made tbe following statement, wbicb is incorporated in tbe record as an avowal: “When I fell and Mr. Osborne came over to pick me up I said to him, ‘This floor is so slippery.’ And he answered me, ‘Yes, Mrs. Niles, I know it is.’ ”

Appellant insists that this alleged statement of Osborne was admissible as part of tbe res gestae, and that tbe alleged statement of Bower should have been admitted as substantive evidence. After tbe foregoing avowal was made and after Osborne had testified, appellant was recalled and was permitted to state that Osborne said on the occasion in question that the floor was slippery. The court then admonished the jury that the testimony should be considered by them only for the purpose of contradicting Osborne if, in their opinion, it did contradict him. No objection to the admonition was made and no exception was taken. The statement attributed to Osborne was not part of the res gestae. He had nothing to do with oiling the floor, was not responsible for its condition, and was not a participant in the transaction in question. The admissions of an agent are not competent evidence against his principal unless they relate to and are made in connection with some act done in the course of his agency so as to form part of the res gestae. Louisville R. Co. v. Johnson’s Adm’r, 131 Ky. 277, 115 S. W. 207, 20 L. R. A., N. S., 133; Borderland Coal Co. v. Kerns, 165 Ky. 487, 177 S. W. 266. The alleged declaration of Osborne was not respecting acts done within the scope of his authority. However, appellant cannot complain of the admonitions of the court restricting the purpose for which the evidence concerning alleged statements made by Bower and Osborne could be considered, since no objection to the admonition was made on either occasion.

Appellee’s counsel was permitted to question appellant concerning prior accidents and illnesses, and it is insisted that this was error. In her petition she alleged that she received injuries which caused a severe shock to her entire nervous system, and that she had suffered and still suffered great and excruciating pain and mental anguish. It was shown that appellant had suffered from stomach ulcers since 1928, and there was medical proof that such a malady causes nervousness. This evidence was competent to show that any disability existing subsequent to appellant’s fall in appellee’s store was partly due to other causes. Chesapeake & O. R. Co. v. Cole, 281 Ky. 381, 136 S. W. 2d 5. The court properly admonished the jury as to the effect to be given such evidence. There was some proof concerning two operations, one for appendicitis many years before the accident in question. This was irrelevant, but was not prejudicial.

Robert B. Laufer, office manager of Steiden Stores, testified concerning the type of floor oil used by appellee in its stores and the manner of its application. Appellant in her brief quotes a part of Laufer’s testimony, and then asks: “Are not all of the above statements incompetent and hearsay evidence?” The answer is no, hut, aside.from this, not a single objection was interposed to the testimony of Laufer.

Appellant criticises instruction No. 1, which reads: “It was the duty of the defendant, its agents,' servants and employees to exercise ordinary care to maintain its floors in a reasonably safe- condition for the use of the customers in its store, and if you believe from the evidence that the defendant, Steiden Stores, failed in such duty, and that by reason of such failure, if any, the plaintiff was caused to be injured, then you will find for the plairitiff, but unless you so believe, you will find for the defendant.”

This instruction presented the only issue in the case in a clear and concise manner. It seems to be appellant’s theory that the instruction is erroneous because it fails to contain a statement to the effect that if the defendant knew of the slippery condition of the. floor and failed to exercise ordinary care to correct such condition, the law is for the plaintiff. The instruction given by the court assumed that the defendant had notice of the condition of the floor, and was more favorable to the plaintiff than the instruction which she now suggests should have been given.- Kroger Grocery & Baking Company v. Diebold, 276 Ky. 349, 124 S. W. 2d 505.

The judgment is affirmed.  