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NOVEMBER 25, 1987





This is a premises liability suit filed by Minnie L. Elder for a slip and fall accident at a Sears, Roebuck & Company catalogue store against both Sears and its authorized catalogue merchant, Robert Bates. Sears denied that an agency relationship existed with its catalogue merchant and asserted that the merchant had control of the premises. After a jury verdict against Sears alone, the Circuit Judge of Humphreys County set aside the verdict, holding that as a matter of law, the evidence established that Bates was an independent contractor. Elder appeals the setting aside of her jury verdict, and Sears cross-appeals on other grounds.


 In September, 1982, Sears, Roebuck & Co. (hereinafter Sears) entered into a Sears authorized merchants agreement with Robert Bates (hereinafter Bates), who was to own and operate the Sears catalog store in Belzoni, Mississippi. The building in which the store was located was leased by Bates from Jerry Holbrook. Sears owned no interest in the building. Two signs owned by Sears, bearing the insignia of Sears, identified Bates as a Sears authorized catalogue merchant of the store. One sign was prominently displayed on the outside over the entrance of the store and another was behind the service counter. Various items of Sears brand merchandise was offered for sale in the store. In the back of the building were a number of used items which Bates offered for sale to the public. This merchandise did not belong to Sears.

 At approximately 4:30 p. m. on January 14, 1982, Minnie Elder entered the Sears store owned and operated by Bates to make a payment on her Sears charge account. The customer service counter was located on the wall opposite the entrance with merchandise displayed to the right and left of the entrance doors. The main aisle down the center of the store led directly to the customer service counter. As Mrs. Elder entered the store, she turned to the left and began to walk in the area of the appliances. According to Mrs. Elder, she walked there because the main aisle was being mopped by employees of Bates. However, according to employees, no one was mopping the floor when Mrs. Elder entered. As Mrs. Elder turned into the area where the floor had been mopped the employees warned her that the floor was wet. She responded that she was wearing rubber sole shoes, and she could walk

 safely. Mrs. Elder slipped and fell. The employees tried to help her, but she arose without their assistance and immediately left the store.

 Later that evening Mrs. Elder went to her family physician for examination and treatment. He diagnosed her condition as contusion (or bruise) of the coccyx. Elder continued to seek medical assistance and saw several different physicians in Jackson and in the Delta, all of whom concurred with the diagnosis. She was treated conservatively with medication, but continued to complain of pain. No physician diagnosed her condition as permanent. A myelogram was performed and found to be normal. One treating physician was of the opinion that the myelogram was not necessary and that she could have returned to work in April following the accident, rather than waiting until October. Elder submitted medical bills approximating $2500 and proof of lost wages in the amount of $30,350.

 Mrs. Elder filed suit against Sears and Bates for failing to maintain the floors of the store in a reasonably safe condition. Sears answered the suit alleging Bates to be an independent contractor and denied any vicarious liability.

 At the close of Elder's evidence, Sears moved for directed verdict on the grounds that Bates was an independent contractor, that it had no control over the condition or the activities on the premises which led to the condition that caused Mrs. Elder to fall, and therefore, it was not vicariously liable for the injuries. The court overruled the motion. This motion was renewed at the close of all evidence but was again denied. After the jury verdict, the court entered its order of judgment notwithstanding the verdict and overruling the motion for new trial.


 Did the trial court err in finding that the evidence established no principal/agent relationship between Sears and Robert Bates?

 Mrs. Elder asserts that the evidence presented an issue clearly within the province of the jury. To the contrary, Sears contends that the evidence in the trial indicated that Sears was not the owner, possessor or party in control of the premises operated by Bates. Therefore, when there is no control by the person or party who engages the independent contractor, then no vicarious liability for the tortious conduct of the independent contractor may be imputed to Sears as a matter of law.

 [W]hen the facts pertaining to the existence or non-existence of an agency are conflicting, or conflicting inferences may be drawn from the evidence, the question presented is one of fact for the jury, . . . and even though the evidence is not full or satisfactory, it is the better practice ...

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