## Facts

- Louella Combs shopped at a Safeway grocery store in El Paso, Texas.
- She slipped and fell after stepping into ketchup spilled on the floor from a broken bottle.
- Safeway did not dispute the presence of ketchup; the main dispute was whether Combs had been adequately warned before she stepped into it.
- Safeway’s store manager testified that he saw the spill and warned Combs not to step in it.
- The manager’s wife, who was present, was prepared to testify that she heard him yell, “Lady, please don’t step in that ketchup.”
- The trial court excluded the wife’s testimony as hearsay.
- The jury returned a verdict for Combs, and judgment was entered against Safeway.

## Issues

1. Whether testimony recounting the manager’s warning (“Lady, please don’t step in that ketchup”) was inadmissible hearsay when offered to show that a warning was given.
2. Whether excluding that testimony was prejudicial error requiring reversal and a new trial.

## Decision

- The Fifth Circuit reversed the judgment for Combs and remanded for a new trial.
- The court held that the excluded testimony was not hearsay when offered to prove the warning was spoken, rather than to prove the truth of any matter asserted.
- Because the existence of a warning was material to negligence and contributory negligence, excluding corroborating evidence of the warning was reversible error.

## Legal Principles

- An out-of-court statement is hearsay only if offered to prove the truth of the matter asserted.
- Words offered to prove that they were spoken, where the utterance itself has legal significance (a “verbal act” or operative fact), are non-hearsay.
- In premises-liability litigation, evidence that a defendant warned a plaintiff may be admitted to show the act of warning occurred, even if the evidence consists of testimony recounting the warning’s words.

## Conclusion

The court ordered a new trial because testimony that a witness heard a store manager warn a customer was admissible as a non-hearsay verbal act; its relevance was that the warning was given, a material fact bearing on liability.


Safeway Stores, Inc. v. Combs, 273 F.2d 295 (5th Cir. 1960)