Rossberg v. Montgomery Ward Co. , 110 Mont. 154 ( 1940 )

I concur in what is said in the foregoing opinion to the effect that the bill of exceptions and the additional assignment of error should be considered on the appeal. I disagree with that portion of the opinion which holds that there was not sufficient evidence to make out a prima facie case for the jury. In considering the propriety of the motion for nonsuit and directed verdict, it is our duty to view the evidence in the light most favorable to plaintiff, and to consider that as proven which the evidence tends to prove. These principles are elementary. I believe the case presented when so viewed was one for the jury.

The complaint alleged and the answer admitted that defendant Hedensten was the business manager of the Montgomery Ward Company store at Great Falls, and that it was his duty "to exercise reasonable inspection of the premises in and about which the defendant corporation conducts its business in the city of Great Falls to the end that the same were and would be at all times during business hours reasonably safe for the ingress, progress and egress of patrons."

The plaintiff testified that Hedensten in referring to the oil on the floor stated, "It was on there long enough to have been cleaned up." Certainly this was a declaration against interest and constituted some evidence tending to show that Hedensten knew of the presence of oil and should have known of the danger therefrom in time to have removed it or caused it to be removed before the plaintiff was injured. This evidence cannot be said to be lacking in probative value. A person does not ordinarily make such a statement unless he knows it to be a fact. It was the statement of an ultimate fact which is permissible when it relates to a matter so simple and usual as to constitute a part of the common stock of knowledge. (22 C.J. 530.) That it was made after the occurrence is immaterial. The rule is that "A statement of an agent may also tend to establish circumstantially the existence of material facts or of a relevant mental state, although it was not made in the course of transacting business for the principal and amounted to merely a narrative of past events." (22 C.J. 382.)

The declaration is admissible not as an admission of negligence, but as some evidence tending to show that defendants had knowledge of the presence of oil on the floor in time to cause it to be removed before the injury to plaintiff. Many cases are cited in the note in 22 C.J. 382, under note 55 (e), sustaining the admissibility of such declarations — some made before and some after the occurrence complained of — for the purpose of proving knowledge of the defect. Whether or not the statement was in fact made is not a question for us to say. That was a question for the jury. Also, if the declaration were not admissible it must still be considered under the circumstances here involved. It went in without objection.

While the cases are not in harmony on the effect of incompetent evidence received without objection, the weight of authority supports the view that it must be given the same consideration as if it were legally competent. The rule is stated in 23 C.J. 39, as follows: "Parties have a right to try their case on evidence which is not of the quality or character required by law, and where such evidence is admitted without objection it is the right and duty of the court or jury to give it the same consideration as if it were legal evidence." To the same effect is 10 Ruling Case Law, 1008.

Was the declaration sufficient to show knowledge or notice as against the company? I think it was. In considering this question we must keep in mind that Mr. Hedensten was the man who was employed by the defendant company to have supervision over the premises involved and to inspect them and keep them reasonably safe for the patrons. A corporation can only acquire knowledge through its servants and agents. His knowledge was knowledge to the corporation and his statement was competent to show the corporation's knowledge of the presence of the oil a sufficient length of time before plaintiff's fall to have removed it. This is the holding of the court under very similar facts in the case of Garnett v. S.S. Kresge Co., Kansas City Court of Appeals, 85 S.W.2d 157. To the same effect is the case of Wainwright v. Westborough Country Club, St. Louis Court of Appeals, 45 S.W.2d 86; and to the same effect, under facts very similar to those here, is the case ofF.W. Woolworth Co. v. Saxton, 39 Ohio App. 118, 177 N.E. 219. (See, also, cases cited under note 55 (e) in 22 C.J. 382.) The precise length of time that the oil was on the floor becomes unimportant in the face of the admission of Hedensten that it had been there long enough to have been cleaned up.

My associates in condemning the declaration of Hedensten rely on the case, among others, of Butler v. Manhattan Ry. Co.,143 N.Y. 417, 38 N.E. 454, 456, 42 Am. St. Rep. 738, 26 L.R.A. 46, but there the statement complained of had nothing to do with notice or knowledge on the part of the company of any defect. It had nothing whatever to do with the cause of action involved. The statement was, "He said I can go to hell. `Shut up.'" It is plain enough that the decision of the court in holding that declaration inadmissible was correct.

The case of Omaha Rep. Valley Ry. Co. v. Chollette,41 Neb. 578, 59 N.W. 921, is also relied upon but that case holds that the declarations there involved were admissible as a part of the res gestae. The case of Worden v. Railway Co.,72 Iowa, 201, 33 N.W. 629, is also relied upon by my associates, but there the declaration held inadmissible was simply a conclusion that there was a defect. Here the defect — a substance either oil or gasoline on the floor — is conceded. The only issue left, and the purpose of the declaration of Hedensten was to show that the defendants knew or in the exercise of reasonable care should have known of the presence of oil in time to have removed it or warned patrons of its presence before the injury to plaintiff. I think it was admissible for that purpose and tends to prove the fact. It is my view, therefore, that the case should have gone to the jury as to both defendants.

I express no opinion as to whether the rebuttal evidence offered by plaintiff was properly stricken or whether the court properly refused to grant leave to open the case in chief, as without this evidence I think there was sufficient to take the case to the jury.