Opinion
July 29, 1952.
Appeal from the Circuit Court for Pinellas County, John Dickinson, J.
Carroll R. Runyon, W. Furman Betts, Jr., Henry Esteva of Holland, Betts Esteva, St. Petersburg, for appellants.
Barton, Saltsman Enwright and Mann, Harrison Stone, St. Petersburg, for appellee.
The appellant-wife sued the appellee, owner and operator of a hotel, for damages sustained when she fell on a floor that was alleged to have been "dangerously slippery" and not reasonably safe for the use of herself as a guest. The appellant-husband joined in the action to recover for the loss of the companionship, society, services and consortium of his wife. Issue was formed by pleas of general issue and contributory negligence.
The jury returned a verdict in favor of the defendant.
All four questions now posed for consideration and determination by this court involve the propriety of charges to the jury.
Appellants first complain about what they call a "misstatement of the pleadings" made by the court to the jury by injecting into the case, gratuitously, a third defense, when but two of the pleas interposed by the defendant remained at the time of trial.
We, of course, do not subscribe to the proposition that a court may mislead a jury in outlining the issues that body is to try, but we must, before we disturb the judgment, determine that the charge assailed, considered by itself and also in connection with the whole charge, was erroneous and harmful as well.
The appellants contend that the judge introduced on his own account "a third and special defense * * *" by drawing the jury's attention to "` its (meaning defendant, Soreno Hotel Company) statement that the conditions prevailing on the floor at the time and place was the general condition all over the hotel and that are generally used and was not a dangerous condition * * *.'" The quotation is from appellants' brief; the underscoring was supplied by its author.
Out of context it might appear that the reference to the nature of the floors in other parts of the hotel actually became a defense, and we may say this portion could well have been omitted; but we are not convinced that it was injurious to plaintiffs' case.
In the first place this part of the charge was prefaced by a fair and accurate analysis of the plaintiffs' claims as given in their pleading. There followed immediately the language: "The defenses filed by the hotel convey general denial of the negligence which occasions a burden of proof upon the plaintiffs in the first instance * * *"; here in the same sentence appeared the challenged language we have quoted from appellants' brief, except the parentheses, and the sentence was closed with the words: "and the third plea that Mrs. Staff's own negligence caused the injury." The judge continued with a definition of a plea of contributory negligence, the burden assumed by one who offers it, and so on.
Although the part of the charge assailed by appellants may have been ambiguous and improperly given, it does not follow that it undermined the verdict. The part of a clause in a set of charges that seem to have covered the duties of the jury generally and the manner of determining the controversy specially could hardly have misled men and women possessed of the intelligence to service in that capacity when it is considered, too, that on at least three occasions the judge sustained objections to testimony about the state of floors at places in the hotel other than the one where the fall occurred. Thus it was made obvious that no such issue was involved in the trial. The bare reference to the statement conveyed by the general denial might as well have been taken to mean, if it had any significance at all, that all the floors were dangerous, as that all were safe.
Appellants seek to strengthen their position that a new plea was submitted by the court to the jury by emphasizing the judge's reference to contributory negligence as the "third" plea, hence implying that the matter of the state of floors in other places in the hotel was the second. We think appellee's explanation of this reference is so logical that it completely refutes the argument. Originally, five defenses were filed; three were eliminated on motion. The third was the plea of contributory negligence. The judge was simply referring to it by its initial designation. He was not adding a defense of his own concoction.
In presenting their next question the appellants insist that the judge invaded the province of the jury by charging that the owner of the floor in a hotel may apply wax in the usual and customary manner, when an issue had developed in the testimony whether any wax at all should be used on the sort of floor on which appellant-wife slipped.
The full charge was: "In treating the floors of a public building, such as a hotel or similar establishment, the owner may apply wax or oil or such other substances in the usual and customary manner without ordinarily incurring liability to one who slips and falls thereon. This must be connected with the charge I gave you of the hotel keeper as keeping the place in a reasonably safe condition." The charge to which there was reference defined the duty to use proper care in maintaining the accommodations in a reasonably safe condition.
Here again it seems to us that mischief can only appear to have been done if the words "the owner may apply wax" are isolated and lifted out of the charge leaving behind the modifying words "in the usual and customary manner" and ignoring the charge about the duty of maintaining the floors in a proper condition. How wax could be applied in a usual and customary manner if it shouldn't be applied at all would require an interpretation so impossible as to make the objection too far fetched to justify our sustaining appellants' position.
The remaining two questions are so lacking in merit that we do not feel obliged to answer them.
Affirmed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.