Henderson v. Progressive Optical System (57 Cal. App. 2d 180, 1943)

GRIFFIN, J.

This is an appeal by plaintiffs and appellants from a judgment of nonsuit entered against them and in favor of defendants and respondents E. L. Laisne, individually, and E. L. Laisne, transacting business under the firm name of “Progressive Optical System,” E. W. Laisne, and Juanita Laisne. The complaint alleges that the defendants were in control and possession of certain described office floors and appurtenances on June 16, 1939, and on that day the plaintiff Nellie Henderson was in the office as an invitee (by the pleadings these facts are admitted); that the floors were for the use of persons lawfully in the premises; that the floor was so negligently cared for that it became slippery and dangerous; that the defendants, well knowing the premises, negligently left said floor in said slippery condition without guards or warning and that in consequence of said negligence and as a direct result thereof said plaintiff fell while properly and necessarily walking upon said floor. The complaint then sets forth the injuries sustained by the plaintiff and the resulting damages. The above-mentioned allegations were denied by the answer except it was admitted by the pleadings that the plaintiff Nellie Henderson slipped on the floor. It was alleged in this connection, however, that she was guilty of contributory negligence.

The evidence produced shows that appellants are husband and wife and that they resided in Lindsay, Tulare County, for over 35 years. The respondents are optometrists, maintaining upstairs offices over a store in Fresno. The respondents, on and prior to June 16, 1939, conducted an advertísing campaign over the radio which the appellant Nellie Henderson heard. At that time she was wearing glasses which she thought needed examination and change. On that date, in response to the radio invitation, she traveled from Lindsay to respondents’ offices in Fresno to have her glasses examined. She entered the offices a little before 11 a. m. It was the first time she had ever been there. Upon first entering the offices she talked to respondents’ receptionist at a desk near the entrance door. She gave her name and address and waited at the side of the reception room until Dr. Laisne was at leisure. She was then taken into the examination room and her eyes were tested. Arrangements were made by her with the doctor for the purchase of glasses. Mrs. Henderson then went to a desk in an extension of the reception room where an employee of the respondents fitted her with bows for the glasses. She then commenced to walk leisurely across the reception room and when near the center of it her feet slipped out from under her and she fell. She claims that the fall was due solely to the condition of that part of the floor. The reception room floor was constructed of hardwood and had been very recently waxed. It was "highly polished.” The floor was bare the full extent of the room and there were no rugs, runners nor other protection. Except for the floor wax, there were no foreign substances whatever on the floor and it was perfectly clean. The general area of the floor upon which Mrs. Henderson fell was "slippery” or "quite slick.” She fell backwards and slightly to her left. The shoes worn by Mrs. Henderson were received in evidence. The evidence shows that such an excessive amount of wax had been placed on the area of the floor where the. fall occurred that wax was peeled from the floor by her shoe; that part of it became attached, during the fall or immediately thereafter, to her left shoe on the left side thereof and across the heel and the back part of the shoe; that part of the wax that attached to the left side of the shoe was ground into the fabric of the shoe in one spot and shortly after the accident formed a central spot of wax "about the size of a dime” with "feathers of wax” extending therefrom. She testified that she had examined these shoes before the accident and no such spot was on them. She also testified that she had no warning from the general condition of the floor that this slippery area existed; that she had walked across other parts of the floor prior to her fall and experienced no difficulty and noticed no excessively waxed areas.

Mrs. Henderson was severely injured by the fall, sustaining a fracture of her left hip. The damage sustained by her appears to be considerable. A Miss Dowell, who accompanied Mrs. Henderson to Fresno, later in the day called at the doctor’s office to meet Mrs. Henderson. As she entered the reception room Mrs. Henderson started to walk toward her and suddenly her (Mrs. Henderson’s) “feet slipped out from under her and she fell.” As to the condition of the floor, Miss Dowell testified that as she looked across it she