Opinion
38866.
DECIDED MAY 12, 1961.
Action for damages. Gwinnett Superior Court. Before Judge Pittard.
Merritt Pruitt, Glyndon C. Pruitt, for plaintiff in error.
Lokey Bowden, Hamilton Lokey, Joseph E. Cheeley, Glenn Frick, contra.
1. Matter of inducement which does not constitute the gist of the cause of action but contributes to an understanding of it is not surplusage, but it need not be pleaded with as great particularity as those facts upon which the plaintiff relies for recovery.
2. An allegation is not subject to special demurrer as a conclusion which avers (a) that the defendant had knowledge of certain facts, or (b) that the plaintiff was in the exercise of ordinary care for his own safety, unless other facts pleaded negative such statement.
3. One who accompanies a friend to a place of business for the purpose of inspecting personal property left by the customer to be repaired, and who is invited along with the customer to go to the place where such property is located, is an invitee and not a mere licensee, and the proprietor owes him the duty of exercising ordinary care in the maintenance of the premises to avoid injuring him.
4. Factitious and unreasonable demands by special demurrer are not encouraged, and this is particularly true where the facts called for are within the knowledge of the defendant.
5. Where it is alleged that the plaintiff was invited to descend a staircase located in a building operated by the defendant corporation as a place for selling and repairing automobiles; that the plaintiff went down the stairs to the ground floor area where the paint and repair shop was located; that the room was dimly lighted and the concrete floor appeared smooth and dry, but was in reality covered with a film of mud and water coming from automobiles washed in the area or from an earth wall next to the staircase; that the floor sloped toward a drain but the slope was not apparent under the conditions existing; that the floor was slick and dangerous when wet, which was unknown to the plaintiff, and that the defendant was negligent in maintaining the floor in an unsafe manner and in failing to warn the plaintiff of its condition, the defendant having actual knowledge of his presence, the petition sets out a cause of action for injuries received by the plaintiff when he slipped and fell.
DECIDED MAY 12, 1961.
Tarpley Haynie filed an action for damages in the Superior Court of Gwinnett County against Etheridge Motors, Inc., alleging in substance that the defendant owned an automobile agency in connection with which it operated repair and painting facilities for its customers and solicited patronage of purchasers and persons desiring to have automobiles serviced, repaired and painted. The physical construction of the building is as follows: it faces north on Moreno Street, its second floor being level with that street and containing show room, office, parts department and service and repair shop. The lower floor faces south and is below ground level and partially unexcavated on the north side; its entrance is by a driveway to Harris Street on the east. The floors are connected by a single stairway debouching on a concrete floor near the earth bank which forms the north wall of the lower floor; the floor has a one-inch slope toward a drain located 7 feet from the stairway; this floor is used for storage, body work, and the paint shop. The smooth finished concrete floor is slick when wet with water or mud from washing cars or from rain, and the portion near the stairway is also made slick when wet by mud seeping out from the earth bank next to the stairway. The plaintiff "went to the premises with Clifford King to get King's automobile which was being painted by the defendant, and upon the invitation and direction of an agent and employee of defendant, whose name is not now know to petitioner but is well known to the defendant, petitioner and Clifford King went into the parts department and down the stairway, as aforesaid, for the purpose of inspecting the paint job done by defendant on Clifford King's car. Petitioner was specifically invited by the employee aforesaid to go upon the premises and to see the work done by the defendant." At the foot of the steps the plaintiff slipped on the concrete floor, which was wet and muddy, and fell, sustaining described physical injuries. The petition further alleges that he was not familiar with the unsafe and dangerous condition; that the only windows were to the south and west and were covered with dirt; that the sun was in the west casting shadows and little light came onto the floor from outside; visibility was poor, the smooth finish and slope of the floor was not detectable, the floor gave the appearance, under those conditions, of being dry, level, and safe to walk upon and the plaintiff was unaware of the hazard until he fell. Negligence is alleged in failing to exercise ordinary care to keep the premises safe, in directing the plaintiff to use the area to reach the paint shop when the defendant knew or in the exercise of ordinary care should have known of its slick and slippery condition; in inviting the plaintiff to walk on a slick, slippery and dangerous area without warning him that it was a dangerous trap, camouflaged and intrinsically unsafe; that it knew of the presence of the mud and water in the area and permitted it to remain there; in failing to maintain adequate illumination; in failing to maintain the floor in a safe condition; in failing to keep the premises and approaches safe and give the plaintiff any warning thereof.
General and special demurrers to the petition were overruled and this judgment is assigned as error.
1. Paragraphs 5 through 13 of the petition describe the building with particularity for the purpose of showing that, as to customers entering on the main floor from the Moreno Street entrance, the route to the paint shop in the basement was that followed by the plaintiff, and they constitute matter of inducement insofar as the injury itself is concerned. Facts so pleaded are merely introductory to the substance of the complaint and may be pleaded with less certainty and particularity than those facts upon which the plaintiff directly relies for recovery, but if they are explanatory in nature they are not immaterial to the cause of action. Delta Air Corp. v. Porter, 70 Ga. App. 152 ( 27 S.E.2d 758); Hobbs v. Holliman, 74 Ga. App. 735 ( 41 S.E.2d 332); American Thread Co. v. Rochester, 82 Ga. App. 873 ( 62 S.E.2d 602). Special demurrers 5 through 13 attacking these allegations are without merit.
2. (a) Unless the petition affirmatively shows otherwise that the person charged with having actual knowledge of a certain condition does not in fact possess such knowledge, an allegation that a party knew or had notice of a certain state of facts is not demurrable as a conclusion. Warner Bros. Pictures v. Stanley, 56 Ga. App. 85 (6) ( 192 S.E. 300). Special demurrers 13, 14, 25, 27, 34 and 40, attacking paragraphs of the petition which allege certain facts to be within the knowledge of the defendant, were properly overruled.
(b) "In an action for negligence, the statement that the plaintiff was without fault is not a conclusion, but a statement of fact." Charleston c. Ry. Co. v. Lyons, 5 Ga. App. 668 (2) ( 63 S.E. 862). Special demurrer 37 to the allegation that the plaintiff was in the exercise of ordinary care for his own safety was likewise without merit.
3. Special demurrers 19, 22, 24, 28, 31, 33, 38, 39 and 42, as well as the general demurrer, contend that the petition as a whole and various paragraphs thereof show the plaintiff to have been a licensee rather than an invitee on the premises because of the fact that he transacted no business with the defendant. "The determining question as to whether a visitor is an invitee by implication or a licensee is whether or not the owner or occupant of the premises will receive some benefit, real or supposed, or has some interest in the purpose of the visit." Anderson v. Cooper, 214 Ga. 164, 169 ( 104 S.E.2d 90). The plaintiff, who went on the defendant's premises with a customer of the defendant for the purpose of inspecting a paint job performed by the defendant on a car belonging to the customer and in the defendant's possession occupied the status of an invitee, and this is particularly true where it is alleged that the plaintiff as well as the customer whom he accompanied were specifically invited to descend the stairway to the basement for that purpose. As such, the duty owed to him was to exercise ordinary care to avoid injuring him by reason of the defective condition of the premises. The petition is not subject to demurrer on the theory that the plaintiff was a mere licensee.
4. The legitimate function of a special demurrer is to compel the pleader to disclose whether he really has a cause of action or defense. Alford v. Zeigler, 65 Ga. App. 294 ( 16 S.E.2d 69). Reasonable definiteness is all that is required, and factitious demands by special demurrer are not encouraged. Stovall v. Rumble, 71 Ga. App. 30 ( 29 S.E.2d 804). The remaining 14 grounds of special demurrer fall within this category. For example, the allegation that "the light coming into said lower level room . . . cast shadows of objects in said room, such as the stairs and the posts placed to support the upper floor, so that there was not a uniform light on the floor in said room" was demurred to "in that it is not alleged . . . what shadows were cast." The allegation that the plaintiff slipped and fell "after leaving the stairway and taking one or two steps" is demurred to on the ground that "plaintiff should be required to state how many steps were taken," and so on. Such demands for minute details serve no useful purpose and should be discouraged. Further, as to those matters peculiarly within the knowledge of the defendant, such as the question in this case as to whether the mud and water on the floor came from the earth wall, from washing the automobiles, or from rain, the plaintiff is unable to supply exact details and is accordingly not required to allege that which is not within his knowledge in other than general terms. Davis v. Homer Lumber Co., 211 Ga. 144 (2) ( 84 S.E.2d 59). The remaining special demurrers were properly overruled.
5. The allegations of this petition with reference to the dim and uneven lighting and resulting poor visibility; the sloping, dangerous and deceptive condition of the floor, and the plaintiff's lack of knowledge and lack of ability under the circumstances to discover that it was slick, slippery, and covered with a film of mud, are sufficient to set out a cause of action as against the contention that the plaintiff's injuries were occasioned by his own failure to exercise ordinary care for his own safety or the contention that he had means equal to that of the defendant to discover the danger. See C. A. Trussell Motor Co. v. Haygood, 94 Ga. App. 40 ( 93 S.E.2d 411) and citations; Pilgreen v. Hanson, 89 Ga. App. 703 ( 81 S.E.2d 18). In so far as negligence is alleged in the maintenance of the basement floor at a point only a step or two from the stair landing, on the opposite side of the area from the doorway, this case differs from Watson v. McCrory Stores, 97 Ga. App. 516 ( 103 S.E.2d 648) where the plaintiff slipped on a substance dropped on the stairway by another customer and it was not alleged either that the defendant had knowledge of the condition or that it had been there for such a length of time as to impute knowledge. It differs from Hill v. Davison-Paxon Co., 80 Ga. App. 840
(57 S.E.2d 680), where the substance in question was a normal amount of rainwater which had collected around an outside exit on a rainy day, a fact obvious to persons entering the store. Further, the petition alleges that the defendant knowingly allowed the slick and muddy condition of the floor without warning the plaintiff of its presence, and the circumstances alleged are such as to raise the necessary implication that the condition described was a part of the manner in which the area was being maintained in connection with the business of the defendant of repairing automobiles. See Colonial Stores v. Scholz, 73 Ga. App. 268 ( 36 S.E.2d 189).
The trial court did not err in overruling the general and special demurrers to the petition.
judgment affirmed. Frankum and Jordan, JJ., concur.