Baham v. F. W. Woolworth & Co.

DORE, Judge. The plaintiff sues to recover damages for an alleged injury to her right foot, which she claims to have sustained on May 5, 1934, in the store of the defendant company while purchasing a hat. She avers that while she was standing in one of the aisles of the store looking at a hat, the assistant manager carelessly and negligently dropped or let fall a roll of screen wire on her right foot causing a contusion of the foot and third toe and a severe sprain. She asks for damages in the sum of $2,-526. Defendant denied that plaintiff was struck and injured by a roll of wire while in its store on the date alleged in the petition, but alleged that on April 28, 1934, while plaintiff was in its store, one of the clerks was measuring off some screen wire when the roll of wire began to unroll down the aisle toward the point where plaintiff was standing, but that another clerk stopped the wire before it struck plaintiff. The defendant denied that plaintiff suffered any injury, but pleaded in the alternative that if she had suffered any injury her claim was prescribed as more than one year had elapsed from April 28, 1934, to the date of filing the suit on May 1, 1935. The Travelers Insurance Company was joined in the suit as the insurer of defendant against public liability and this defendant made the same defense as the Woolworth Company. Judgment was rendered against both defendants in solido for the sum of $513 from which judgment both defendants appeal. Plea of Prescription. Plaintiff claims that the accident and injury occurred on May 5, 1934, while defendants claim that if any accident occurred it was on April 28, 1934, and consequently any claim arising therefrom was. prescribed (Civ.Code, art. 3536) when the suit was filed on May 1, 1935. Plaintiff testified that she came down town on May 5, 1934, and first went to-the office of the waterworks company and paid a bill. She files in evidence a receipt by that company dated May 5th. Ella Walker,' a colored woman who assisted plaintiff in boarding a street car and getting home after the injury, testified that it was on May 5th. She -fixes the date from the fact that on the following day, Sunday May 6th, a society of which she was a member had its annual anniversary sermon, which occasion was always in May. Edward York, a colored man who witnessed the accident, testified that it was on May 5th. He was able to fix the date from the fact .that his wife’s birthday came on that day, and he had gone to town to make some purchases in connection with that event. Nicholas Baham,. a cousin-of plaintiff’s husband, says that it was on May 5th that plaintiff was hurt. He attended a baseball game and returned' to plaintiff’s home, where he was staying at about 3:30 in the afternoon and went to sleep. When he awoke about 7:30, he found plaintiff sitting on the bed complain-' ing about her foot. Dr. Brown, who treated plaintiff for the injured foot, says his first treatment was on' May 5th. His first charge for services was on May 5th. While this doctor testified that the injury to plaintiff’s foot could have occurred several days before he treated her on May 5th, yet his whole testimony is to the effect that the injury was a recent one. There is nothing in his testimony on this point that conflicts with the testimony of plaintiff and her other witnesses. Mr. Jules J. Maitre, Jr., the assistant manager of the store, testified that the incident out of which the action arises took place on April 28, 1934. He bases his testimony on the date from a memorandum which he claims to have made of the accident just after it occurred, and which memorandum he gave to the manager. Miss-Julia Kleinpeter, a clerk in the store fixes the date as April 28th, for the reason that *800 her uncle died on April 26th and was buried on April 27th and she went to work the following Saturday April 28th. The district judge, who heard the witnesses and evidently knew some of them, reached the conclusion that the accident happened on May 5, 1934, and- overruled the plea of prescription. There is no manifest error in this finding of facts, and his ruling was correct.