Mowrey v. Marina Corp.

GRIFFIN, J. Josephine I. Mowrey, a waitress for defendant and appellant Marina Corporation, brought this action for damages against defendant alleging that she was injured on December 14, 1952, while waiting on customers; that one Mildred Stockton, another waitress, was carrying a heavy tray in the dining room and she called plaintiff to assist her because the tray was too heavy and she was afraid she would drop it. The complaint further alleged that plaintiff immediately placed her hands under the edge of the tray to keep it from falling or tipping; that Mildred negligently and carelessly permitted the tray to tip and caused the casserole thereon to skid; and that by reason of the careless act of Mildred the steaming liquid from the casserole, containing steaming lobster, spilled over and upon the hands of plaintiff and badly scalded and burned them, to her detriment and damage in the sum of $10,000. Special damage in the sum of $2,811.95 was also claimed. Defendant corporation appeared by answer and denied generally these allegations, admitted that plaintiff sustained injuries while employed by it; alleged that her injuries were the result of an unavoidable accident; and that she was adequately compensated therefor by virtue of an award by the Industrial Accident Commission in the sum of $796.80, plus medical expenses, etc.

It appears that a pretrial conference was held on May 12, 1954, and as a result of an order of the judge, approved by counsel for the several parties, it was “agreed” that plaintiff “was asked to assist another employee to prevent a tray containing food from tipping which the other employee was carrying. Thereafter, the tray did tip and the food thereon was upset and spilled over and upon the hands of the plaintiff causing the injuries complained of . . . that at the time of this injury the defendant was not covered by Workmen’s Compensation Insurance . . . ”; that the satisfaction of the award received in evidence sets forth the items of such award; [788]that “It is admitted by the defendant that the plaintiff was an employee, that at the time of the injury she was acting in the scope of her employment, that she was injured, and that the defendant was not covered by Industrial Accident Insurance”; “that there is a presumption that the injury sustained by the plaintiff was proximately caused by the negligence of the defendant”; and that the principal issues will be: “1. Whether or not there was any negligence on the part of the defendant. 2. Whether or not it was an avoidable accident. 3. Nature and extent of the plaintiff’s injuries. 4. Amount of plaintiff’s damages, if any, including loss of earnings. 5. The extent to which any award made to the plaintiff by the Industrial Accident Commission shall be credited to any judgment recovered in this action. 6. Amount of plaintiff's attorney’s fees, if any.”