Opinion
No. 37382.
February 13, 1950.
1. Negligence — mercantile establishments — duty of care, as to customers — right of customer.
An invitee in a store is not to be too circumscribed as to his movements while waiting for a clerk to exhibit goods. He has a right to inspect goods and frequent places used by other patrons of the store and provided by the storekeeper for their use.
2. Negligence — mercantile establishments — duty of care as to safety of customers.
A customer who enters a department store, intending at the time to purchase in one department only, becomes nevertheless an invitee as to all the departments and is entitled to the protection of the rule that the storekeeper owes to his customers the duty of exercising reasonable care to keep the store in a reasonably safe condition at all places therein where any patrons of the store are invited to go.
3. Trial — personal injury — evidence, when sufficient to take issue to jury.
When it is undisputed that plaintiff was struck in defendant's store by a falling package containing a floor polishing machine and that she instantly fell screaming is sufficient of itself to take the issue to the jury on the question as to whether she was struck by the package in such manner as to be the cause of the injuries of which she complains.
4. Trial — instructions — customers of store — when invitees, not licensees.
When a customer of a store intending to purchase in one department accompanies a friend to another department where the friend is transacting business with the store and both are then and there at a place or point frequented by customers, both are invitees there and neither is a mere licensee, so that it was proper to refuse instructions based upon the licensee theory and to grant requested instructions on the law relating to invitees.
5. Damages — province of the jury — verdict not excessive, case in point.
The fixing of the amount of the damages in a personal injury case is one of the functions of a jury, and the verdict will not be interfered with by the court unless so excessive as to manifest such bias and prejudice that their determination is shocking to the conscience; so that a verdict for $4500, although large, for a back injury causing intense pain and suffering and requiring the use of a body brace similar to a corset with steel stays, will not be declared excessive.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, Judge.
Wallace, Greaves Wallace, for appellants.
I. The circuit court erred in refusing peremptory instruction requested by defendants-appellants.
The actual physical qualities and aspects of the instrument by which plaintiff-appellee claims she was injured, when it toppled and fell from a standing position, which is in the evidence and is a part of the record, viewed in the light of undisputed evidence showing (1) it was resting on its heavy end and (2) the total absence of objective symptoms of physical injury, establishes an absolute impossibility that she sustained any injury as a result of the cause she ascribes. Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 1 So.2d 242; Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747; Yazoo M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274; Illinois Cent. R. Co. v. Gatis, 202 Miss. 624, 31 So.2d 902; Mobile O.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; Southern Railway Co. v. Buse, 187 Miss. 752, 193 So. 918.
Damages recoverable in any case must be shown with reasonable certainty (and must be established as a reasonably certain probability), both as to their nature and in respect to the cause from which they proceed. S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343; Hawkins v. Stringer, (Miss.), 38 So.2d 454; 25 C.J.S., p. 493, Section 27; 15 Am. Jur., p. 410, Section 20.
Plaintiff-appellee has the burden of proof. Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Thompson v. Mississippi Cent. R. Co., 175 Miss. 547, 166 So. 353; F.W. Woolworth Co. v. Patrick, 175 Miss. 711, 167 So. 774; Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 1 So.2d 242; Illinois Cent. R. Co. v. Gatis, 202 Miss. 624, 31 So.2d 902.
In respect to the burden of proof, as in all other cases, possibilities and conjectures must be excluded, because evidence more substantial than a mere possibility or conjecture is essential to support a verdict and judgment. Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; New Orleans N.E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825; Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780; Equitable Life Assur. Soc., etc. v. Mitchell (Miss.), 29 So.2d 88; Danciger Oil Refg. Co. v. Free, 204 Miss. 870, 35 So.2d 542.
In civil cases, courts act on reasonable probabilities, and to prove a possibility only, or leave the issue to surmise or conjecture, is never sufficient to sustain a verdict in a trial under the common law. New Orleans N.E.R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80; Yazoo M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274; Burnside v. Gulf Refg. Co., 166 Miss. 460, 148 So. 219; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Mutual Benefit Health Accident Ass'n. v. Johnson (Miss.) 186 So. 297; Southern Railway Co. v. Buse, 187 Miss. 752, 193 So. 918; Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780; Equitable Life Assur. Soc., etc. v. Mitchell, (Miss.) 29 So.2d 88; Danciger Oil Refg. Co. v. Free, 204 Miss. 870, 35 So.2d 542.
A jury verdict cannot convert a possibility or any number of possibilities into a probability. Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747; Yazoo M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274; Illinois Cent. R. Co. v. Gatis, 202 Miss. 624, 31 So.2d 902; Mobile O.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 1 So.2d 242; New Orleans N.E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825.
Proof that a certain event transpired as a result of a stated condition proves only a possibility and does not establish a probability sufficient to sustain a verdict and judgment. Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Jabron v. State, 172 Miss. 135, 159 So. 406; Danciger Oil Refg. Co. v. Free, 204 Miss. 870, 35 So.2d 542.
Evidence must be completely disregarded, as being without probative force, if manifestly incredible, when tested by accepted physical laws, in the light of incontrovertible physical facts. Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747; Yazoo M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274; Illinois Cent. R. Co. v. Gatis, 202 Miss. 624, 31 So.2d 902; Mobile O.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 1 So.2d 242; Kelley v. Jones, 290 Ill. 375, 125 N.E. 334, 8 A.L.R. 792, and cases cited in the annotation on page 599 of A.L.R. citation.
Even if plaintiff-appellee was an invitee when she was at the place in the store building where the accident occurred, the most the law required of the defendants-appellants was reasonable or ordinary care for her reasonable safety, and that principle also required her to exercise reasonable or ordinary care for her own safety. Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; F.W. Woolworth, Inc. v. Patrick, 175 Miss. 711, 167 So. 774; Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 1 So.2d 242; Pryotely v. New York C. St. L.R. Co. (6th C.C.A.) 28 F.2d 868.
Since all of the credible testimony on the subject shows conclusively that the danger inherent in the standing package and at the place where it was standing, of which plaintiff-appellee complains, was obvious, reasonably apparent and was as well known to her as to the defendants-appellants, there is no liability for any injury to her proximately resulting from such danger; she assumed all of the risks inherent in such danger, if any. Sneed v. Moorhead, 70 Miss. 690, 13 So. 235; Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213, 48 Am. St. Rep. 547, 26 L.R.A. 686; Woodland Gin Co. v. Moore, 103 Miss. 447, 60 So. 574; McDonald v. Wilmut Gas Oil Co., 180 Miss. 350, 176 So. 395; Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; Hall v. United States, 54 F. Supp. 60; 38 Am. Jur., pp. 757, 758, Section 97, p. 761, Section 100.
Plaintiff-appellee is presumed to have seen and known what she could have seen and known if she was at all attentive to her immediate surroundings. Graves v. Johnson, 179 Miss. 465, 176 So. 256; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646.
Photographs, defendants' exhibits 2, 3, 4 and 5, show the portions of the store designed and set apart for uses and conveniences of customers is safe place for any customer to transact business and must prevail over any suggestion in the oral testimony tending to present a contrary view. Illinois Cent. R. Co. v. Gatis, 202 Miss. 624, 31 So.2d 902; Mobile O.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539.
Actionable fault must be predicated on action or nonaction accompanied by actual or implied knowledge of facts which make the result not only probable, but one reasonably to be anticipated. Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Jabron v. State, 172 Miss. 135, 159 So. 406; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; J.C. Penny Co., Inc. v. Scarborough, 184 Miss. 310, 186 So. 316.
The failure of the defendants-appellants to anticipate the bare possibility that plaintiff-appellee would thus place herself in the store does not constitute negligence. Woodland Gin Co. v. Moore, 103 Miss. 447, 60 So. 574; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Shuptrine, et al. v. Herron, 182 Miss. 315, 180 So. 620; Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780.
Ordinary (reasonable) care of a reasonably prudent person does not require that he should provide for or anticipate an unusual, improbable or extraordinary occurrence. Goudy v. State, 203 Miss. 366, 35 So.2d 308; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780.
An invitation to go on the premises of another is inferred where there is some common interest or mutual advantage. Robertson v. Yazoo M.V.R. Co., 152 Miss. 333, 118 So. 181; Yazoo M.V.R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; Yazoo M.V.R. Co. v. Cox, 132 Miss. 571, 97 So. 7; Illinois Cent. R. Co. v. Arnola, 78 Miss. 787, 29 So. 768.
In order to imply invitation, the owner of the premises must hold out some kind of allurement, and there must be some kind of adaptability of the premises to the purposes of the visitor thereon. Yazoo M.V.R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; Woodland Gin Co. v. Moore, 103 Miss. 447, 60 So. 574; Illinois Cent. R. Co. v. Arnola, 78 Miss. 787, 29 So. 768.
Plaintiff-appellee became bare licensee when she voluntarily departed from safe place provided in store and wandered into place where accident occurred, in Shipping Department of store. Murry Chevrolet Co. v. Cotten, 169 Miss. 521, 152 So. 657; Picard v. Waggoner, 204 Miss. 366, 37 So.2d 567; Roberts v. Mississippi Power Light Co., 193 Miss. 627, 10 So.2d 542; Robertson v. Yazoo M.V.R. Co., 152 Miss. 333, 118 So. 577; Yazoo M.V.R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; Illinois Cent. R. Co. v. Arnola, 78 Miss. 787, 29 So. 768; Sears, Roebuck Co. v. McClain, (5th C.C.A.), 167 F.2d 130; Morse v. Sinclair Automobile Service Corp., etc. (5th C.C.A.) 86 Fed. 2d 298; Cross v. Simmons, (8th C.C.A.) 96 F.2d 482; Bagly v. Barton (5th C.C.A.) 131 F.2d 887; Bollinger v. Gotham Garage Co. (2nd C.C.A.), 155 F.2d 326, Cert. denied, 329 U.C. 733; Peebles v. Exchange Building Co., 15 F.2d 335; Pryotely v. New York C. St. L.R. Co., (6th C.C.A.) 28 F.2d 868; Rhode v. Duff (8th C.C.A.) 208 Fed. 215; Keeran v. Spurgeon Mercantile Co., 194 Iowa 1240, 191 N.W. 99, 27 A.L.R. 579; Printy, Admr. v. Reimbold (Iowa), 202 N.W. 122, 41 A.L.R. 1423; Gavin, Admr. v. O'Connor (N.J.) 122 A. 842, 30 A.L.R. 1383; Ryerson v. Bathgate (N.J.) 51 A. 708, 57 L.R.A. 307; Parker v. Portland Publishing Co., 69 Me. 173, 31 Am. Rep. 262; See authorities cited in annotation page 228, Vol. 33, A.L.R., under the caption "Place Not Frequented by Customers; Shipping Rooms and Ware Rooms"; 38 Am. Jur., pp. 761, 762, Sections 100, 101.
Plaintiff-appellee's case not aided by fact that she accompanied her friend, Mrs. Bell, who had business to transact with the custodian of the "Package Department" in the "Shipping Department" of the store, since she had no business whatever to transact in that department. Murry Chevrolet Co. v. Cotten, 169 Miss. 521, 152 So. 657; Morse v. Sinclair Automobile Service Corp., etc., (5th C.C.A.) 86 F.2d 298; Cross v. Simmons (8th C.C.A.) 96 F.2d 482; Bollinger v. Gotham Garage Co. (2nd C.C.A.), 155 F.2d 326, Cert. denied, 329 U.S. 733.
II. The circuit court erred in granting the instruction to the jury requested by plaintiff-appellee which appears in full on page 27 of the record.
The principal vice in the instruction is that it is founded upon the erroneous premise that defendants-appellants were under the legal obligation to exercise ordinary care to so place the package complained of that it would not fall and strike plaintiff-appellee even if she were a mere licensee and is a peremptory instruction against defendants-appellants. Picard v. Waggoner, 204 Miss. 366, 37 So.2d 567; Murry Chevrolet Co. v. Cotten, 169 Miss. 521, 152 So. 657; Roberts v. Mississippi Power Light Co., 193 Miss. 627, 10 So.2d 542; Sears, Robuck Co. v. McClain, (5th C.C.A.), 167 F.2d 130; Morse v. Sinclair Automobile Service Corp., etc. (5th C.C.A.) 86 F.2d 482; Cross v. Simons (8th C.C.A.), 96 F.2d 482; Bollinger v. Gotham Garage Co., 155 F.2d 326, Cert. denied, 329 U.S. 733; Bagly v. Barton, (5th C.C.A.), 131 F.2d 887; Keeran v. Spurgeon Mercantile Co., 194 Iowa 1240, 191 N.W. 99, 27 A.L.R. 579; Printy, Adm. v. Reimbold (Iowa), 202 N.W. 122, 41 A.L.R. 1423; Ryerson v. Bathgate (N.J.) 51 A. 708, 57 L.R.A. 307; Parker v. Portland Publishing Co., 69 Me. 173, 31 Am. Rep. 262; 38 Am. Jur., pp. 761, 762, Sections 100, 101.
III. The verdict of the jury is contrary to and against the overwhelming weight of the testimony. Montgomery-Ward Co. v. Windham, 195 Miss. 848, 16 So.2d 622 — Suggestion of Error overruled, 17 So.2d 208; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; Beard v. Williams, 172 Miss. 880, 161 So. 750.
The amount of damages awarded by the verdict is excessive, and the amount is so excessive as to evince passion and prejudice by the jury. City of Jackson v. Carver, 82 Miss. 583, 35 So. 157; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; Beard v. Williams, 172 Miss. 880, 161 So. 750; Mutual Ben. Health Accident Ass'n. v. Johnson (Miss.) 186 So. 297; Montgomery-Ward Co., Inc. v. Windham, 195 Miss. 848, 16 So.2d 622 — Suggestion of Error overruled, 17 So.2d 208.
T.J. Wills and Bidwell Adam, for appellee.
The first question that arises in considering this answer to the brief of appellants is whether or not appellee was an invitee in the store at the time that she received the injury.
The record in this case shows that she left her home on 32nd avenue in company with Mrs. Bell and went to appellant's store for the express purpose of purchasing paint to paint her porch furniture; that she and Mrs. Bell entered the store together; that they went by the package room to get Mrs. Bell's silverware and from there intended to go in the direction of the front door by the paint department where she would pick up the paint that she needed for the painting of her porch furniture, and then out of the store on 25th avenue to their car and return home. There is no conflict in the evidence that this was the plan. Appellant contends in its brief that because she walked with Mrs. Bell by the package room where she, Mrs. Bell, had been advised by the clerk in authority in the office that her silverware would be delivered to her, that appellee lost her identity as an invitee and became a licensee. To have done otherwise the two ladies who were in the store as invitees who entered the store together as invitees and were accompanying each other in getting the merchandise each desired would had to have separated and one stand in the aisle and wait for the other to go get their merchandise, all of which was located in the store to which the public generally is invited to come and make the desired purchases.
"A customer is not to be too circumscribed as to his movements while waiting for a clerk to exhibit goods; he has a right to inspect goods and to frequent places used by other patrons of the store and provided for their use by the storekeeper." 38 Am. Jur. par. 132, p. 793. This court has had the identical question before it in the case of S.H. Kress Co. v. Markline, 117 Miss. 37, 77 So. 858.
The duty of a storekeeper to protect customers invited into the store to trade is one of the use of ordinary care. The storekeeper must see to it that conditions are such that a person in the store where customers are invited to go is in a reasonable safe condition for the safety of the customers therein. A breach of this duty makes the storekeeper liable for whatever damages are sustained. See Ness Creameries v. Bartheas, et al., 170 Miss. 865, 155 So. 222; See also Gulf Refining Co. v. Moody, 172 Miss. 377, 160 So. 559; Louisiana Oil Corp. v. Davis, 172 Miss. 126, 158 So. 792; Brinkworth v. Sam Seelige Co., 197 P. 427; Bridgeford v. Stewart Dry Goods Co., 231 S.W. 22.
This court will take judicial notice of the plain every day happenings in accordance with the law of nature, and it is shown that the carton which fell upon appellee would topple over. The fact that it did topple over speaks for itself. There was no probability or possibility of anyone striking the carton and knocking it over. It fell with great force, sufficient to knock appellee down; notwithstanding the efforts made by appellant to discredit the extent of her injuries she had been treated for nine months for the injury and was still wearing a steal brace. If ordinary care had been used the carton would have never been stood up on so dangerous position. The question was submitted to the jury and the jury found lack of reasonable care and their finding was supported by the evidence.
The appellant was charged with notice and should have reasonably anticipated that appellee or some other member of the public invited into the store, would be injured by the falling of this carton, and it was its duty to anticipate and to use reasonable care against such contingency. See Cato v. Crystal Ice Co., 109 Miss. 590, 68 So. 853.
Complaint is made of the excessiveness of the verdict; see Gulf Refining Co. v. Moody, supra. The Moody case holds that $5000 to an eleven year old child struck on the head by a falling light globe was not excessive.
All these questions of fact were properly presented to the jury and the jury found for the appellee and fixed her damages at $4500.
Appellee brought suit against appellants, Sears, Roebuck and Co., as owner, and Roy Ober, as manager, for the recovery of damages because of personal injuries alleged to have been sustained by her while a customer in a retail store at Gulfport, Mississippi, when a package fell against her back. The case was submitted to a jury and from a judgment in appellee's favor in the amount of $4,500 this appeal is prosecuted.
Appellants contend that they were entitled to a directed verdict and that consequently the trial court erred in submitting the case to a jury. In this connection the argument is pressed upon us that the package itself was of such nature that it was incapable of inflicting the injuries alleged, and further that the appellee was struck by the package at a place in the store where customers were not invited and where she was forbidden to enter.
According to the evidence this store is approximately fifty feet in width and 150 feet in length. It faces West and fronts on a business street. The retail department occupies the west 127 feet of this space. In the east 23 feet there is a balcony which is elevated a distance of apparently 8 or 9 feet above the level of the first floor. In this balcony the company maintains its offices and customers who desire to purchase goods on credit or to make payments on credit accounts are required to go to this balcony, access being gained by stairs leading directly to the balcony from the center aisle of the store. The space underneath this balcony is a continuation of the first floor but is separated from the main retail department by a wall, and entrance thereto from the first floor is gained through an opening of double doors. Running directly east from these doors is an open aisle which leads to one of the rear doors opening onto a public alley behind the store. To the north of this aisle there are a freight elevator and mens rest rooms, access to all of which is gained from the aisle. To the south of and adjacent to this aisle there are first a small room known as the "Will Call" room, next an aisle approximately five feet in width and about twelve or fifteen feet in length running due south from the first mentioned aisle, next a room known as the "Package Department" with solid walls on the south and east sides but with a counter about 3 1/2 or 4 feet high on the north and west sides, and, finally, to the east of this package department there is a small room, adjacent to the rear door, known as the mop room.
The door to the "Will Call" room opens into the last mentioned aisle which runs north and south. This room is maintained for the convenience of customers who have made cash purchases in the store and who desire to leave these packages with the company and call for them later, at which time the customer will enter the double doors from the main first floor of the store and walk to the east along the aisle first mentioned and then turn to the south in the aisle last mentioned.
The "Package Department" is maintained for the convenience of customers who have selected merchandise which they desire to purchase on credit terms. If the customer does not have an established credit rating with the company he may select the goods which he desires to purchase and they are removed from the stock on display and placed in this package department awaiting a satisfactory credit report on the customer. When his credit is approved the customer is notified by the company and returns to the store and reports to the office in the balcony where an order is handed to the customer and the customer then takes this order to the package department, presents it to the employee there in charge, signs a receipt for the merchandise, and it is then delivered to him.
It is shown by the testimony of several witnesses for appellants, employees of the company, that the east and west aisle from the main store back to the package department and the space around the package department is constantly frequented by customers of the store during business hours.
The north and south aisle is about 12 or 15 feet in length and its south terminus is in a door leading into another room, completely walled off from the package department and "Will Call" room, which is used as a wareroom and storage department and is commonly known as the "Receiving Room". In front of the door leading from the north and south aisle to the receiving room there is a sign which says "Employees Only". There is also a door in the east end of the receiving room which opens into the aforesaid alley and through which merchandise is delivered by truck to the company and deposited in the receiving room.
A few days prior to April 23, 1948, Mrs. Joe Bell, a friend of appellee, had selected a set of silverware from the stock of appellant company, which she desired to purchase on credit. Not having theretofore established a credit rating with appellant company she gave references and an investigation was made which resulted in appellant company mailing her a notice that her credit had been approved and that she could return to the company's office and obtain the silverware which she had selected. On said date Mrs. Bell asked appellee if she wished to go to appellant company's store with her, and appellee replied that she desired to purchase some paint from appellant company for the purpose of repainting her porch furniture and would be glad to go with her. Mrs. Bell accordingly drove to appellee's home and they then went to appellant company's store, entered the front door, walked directly east down the center aisle and up the steps to the office in the balcony. Appellee testified that they had decided that they would first attend to the completion of Mrs. Bell's purchase of the silverware and that appellee would then select the paint which she desired. At the office in the balcony Mrs. Bell was handed a slip or order and was directed to go back down the stairs and turn to the right and go to the package department where her silverware would be delivered to her. In accordance with these instructions she went to the package department and appellee went with her. While they were standing at the counter in the package department a package toppled over and struck appellee in the back, whereupon she screamed and fell to her knees.
The package which struck her was a cardboard carton containing a floor polishing machine. The carton measured 8 1/2 inches deep, 15 1/2 inches wide, and 56 1/2 inches long. The machine therein consisted of an electric motor, with polishing attachment, and a handle. Its entire weight was 39 pounds. Naturally this weight was not evenly distributed; in fact nearly all of it was in one end of the carton. The heavy end of the carton had been damaged, probably during shipment, and it was difficult to stand this carton on end with the heavy end on the floor. Another customer had selected this polishing machine from the stock in the main store and had made application to purchase it on credit terms. It had been sent from the main store back to the package department to await approval of its purchaser's credit rating, but the employee in charge of it, for some reason unexplained in the record, had stopped about five feet away from the package department and had stood the package on end at or near the corner of the "Will Call" room. The record is silent as to how long it had been there. At the time it fell and struck appellee some of the company's employees were engaged in moving an automobile motor, resting upon a "dolly" or floor truck with wheels, along the east and west aisle eastwardly past the freight elevator and appellants admit that the vibration of the floor caused by the moving of the automobile motor was probably the factor which caused the package to fall and strike appellee. Regardless of whether this was a cause which contributed to the falling of the package, it is undisputed that it was difficult to stand it on end with the heavy end down and furthermore that it was difficult to stand it on end with the light end down, and there was danger, in either event, of its toppling over.
Considering the contention of appellants that the appellee had no business to transact at the package counter but was only accompanying her friend to that portion of the store, it is nevertheless undisputed that customers of the store were constantly going to and from that department and its business with customers at that department was of such magnitude that it kept an employee there at all times. In the case of S.H. Kress Co. v. Markline, 117 Miss. 37, 59, 77 So. 858, 865, Ann. Cas. 1918E, 310, this court said: (Hn 1) "An invitee in a store is not to be too circumscribed as to his movements while waiting for a clerk to exhibit goods. He has a right to inspect goods and frequent places used by other patrons of the store and provided for their use by the storekeeper." (Hn 2) In this case it is undisputed that appellee entered the store for the purpose of purchasing paint. She was lawfully therein on business with appellant company and under the rule announced in the Markline case she was entitled to go with her friend to the package department. In so doing she was an invitee and not a mere licensee as contended by appellants. Appellants owed her the duty of exercising reasonable care to keep in a reasonably safe condition the place where patrons of the store were invited to go, and whether they failed in that duty is a question for decision by a jury. Appellant's authorities respecting the duty of a storekeeper to those customers who wander into shipping rooms, warerooms, and other places not frequented by customers, have no application here for it clearly appears from the record that appellee was approximately 12 or 15 feet north of the door to the wareroom when she was injured and that she never at any time entered the wareroom or went beyond the sign indicating that that space was reserved for employees only.
(Hn 3) With reference to the contention that the package was incapable of inflicting the injuries of which complaint is made, the appellants sought to show that the package was standing with the heavy end down, one of its employees tending to establish that fact, and it is argued that the light end of the package struck the appellee and could not possibly have caused any serious injury. As against this argument the fact remains undisputed that the package did strike her, that she instantly screamed and fell to her knees, that she was given ammonia and placed in a chair where she rested about fifteen minutes and then went directly to one of the company's doctors who examined her, strapped her back with adhesive plaster, and directed her to sleep only upon boards placed in her bed. We are of the opinion that the fact that appellee was struck in the back with such force as to cause her to spontaneously scream and fall to her knees is sufficient to make a question for decision by the jury as to whether she was struck with the heavy end of the package. (Hn 4) Appellants also assign as error the granting of an instruction to appellee, the main vice of which they contend lies in its failure to submit to the jury the duty which appellants would owe to a mere licensee. In this connection they argue that appellee was in a place which was not frequented by customers and where she had no business, that there were numerous packages around her, and that the company's employees were engaged in their duties in handling these sundry packages and articles of merchandise about her in the receiving room and shipping department; if there had been testimony that appellee was in such a place the instruction would be erroneous, but, according to the record here, there is no showing that there was even one other package about or around her or in reach of her, and it is definitely established that she was not in the wareroom or receiving room, but on the contrary that she was in a place frequented by patrons of the store. Consequently we find no error in the instruction.
The last assignment of error is that the trial court erred in overruling appellants' motion for a new trial, first because the verdict is contrary to the overwhelming weight of the testimony, and second because the amount of damages awarded is so excessive as to evince passion and prejudice on the part of the jury.
After a careful review of the voluminous record before us we are of the opinion that there was sufficient evidence to justify the verdict on the issue of liability. Appellants' evidence did not dispute the fact that the package toppled over and struck appellee at a time when she was at a place frequented by customers of the store; in fact all the employees who were present admitted it, and it was the province of the jury to determine whether appellants were guilty of negligence proximately contributing to the injuries claimed.
(Hn 5) As to the amount of the verdict, the medical testimony is conflicting as to the nature and extent of appellee's injuries. The physician who first treated her testified that the strapping of her back and sleeping with boards in her bed were proper treatments for the injury he found. The verdict, while large, is supported by his testimony. Furthermore, at the instance of appellant company the appellee went to Ochsner's Clinic in New Orleans for further examination and treatment, and she was there fitted with a body brace, similar to a corset, with steel stays which she was instructed to wear and was still wearing at the time of the trial, and it was shown that this was a proper treatment. There was evidence of intense pain and suffering by appellee, as well as her inability to carry on her usual work. The fixing of an amount of damages to be awarded in cases of this nature is one of the functions of a jury, composed of men from all walks of life, — "the butcher, the baker, the candle-stick maker, —" and we are not authorized to invade the province of the jury unless the verdict is so excessive as to manifest such bias and prejudice that their determination is shocking to the conscience. Since we are unable to so assert in this case the judgment of the trial court is affirmed.
Affirmed.