Opinion
32498.
DECIDED JUNE 23, 1949.
Action for damages; from Fulton Superior Court — Judge Hooper. March 16, 1949.
Reuben A. Garland, Anthony A. Alaimo, for plaintiff.
Charles D. Hurt, Haas Hurt, for defendant.
From the allegations of the petition in this case it appears that the plaintiff's injuries were the result of his own failure to exercise ordinary care in walking upon the marble floor of the hotel lobby while it was covered with soapy water, at the time and place in question; and in such circumstances the question of negligence is properly decided by the court as a matter of law. Accordingly, the trial judge did not err in sustaining the general demurrer to the petition and in dismissing the action.
DECIDED JUNE 23, 1949.
T. H. Ford filed his suit against S. A. Lynch Corporation, d/b/a the Atlantan Hotel, in Fulton Superior Court, for $10,000 damages, on account of injuries allegedly sustained when he slipped and fell on the floor of the lobby of the defendant's hotel where he was a guest.
The allegations of the petition, as amended, pertinent to the issues here involved, are as follows: "5. About 3:30 o'clock a. m. on the morning of June 21, 1948, plaintiff entered the Luckie Street entrance to said hotel of defendant as its guest and invitee, and walked down the steps leading from said entrance to the lobby of said hotel, and was approaching the desk in said hotel. 6. That the passageway in said lobby on the first floor of said hotel leading to said desk is of marble or stone and has a smooth and highly polished surface. 7. When plaintiff descended the steps leading from the Luckie Street entrance to the lobby of said hotel, the surface of that portion of the lobby floor tangent and adjacent to the bottom step of said steps was covered with water and was in a slick and slippery condition and plaintiff, in stepping from the bottom step to the lobby floor, fell upon said floor and steps with great force and violence. 8. Before plaintiff slipped and fell, plaintiff did not see and did not know that said floor was covered with water and was slippery and unsafe. 8a. Plaintiff at all times referred to herein exercised ordinary care and diligence for his own safety and protection using due care and circumspection in walking into said hotel. 9. Defendant knew that said floor was covered with water and that it was in a slippery and unsafe condition at said time and place. 21. Said defendant corporation was negligent in the following particulars to wit: (a) In causing and permitting water and grease to accumulate and stand on said floor in said passageway in said hotel in violation of the requirements of ordinary care and diligence. (b) In knowingly maintaining said premises in an unsafe and dangerous condition, in violation of the requirements of ordinary care and diligence. (c) In failing to mop and remove said water and grease from said passageway after causing same to accumulate thereupon as required in the exercise of ordinary care and diligence under the circumstances. (d) In failing to warn plaintiff of the peril and hazard of walking on said slick, slippery and dangerous passageway as required in the exercise of ordinary care and diligence under the circumstances. (e) In permitting said slick, slippery and unsafe condition of the passageway to remain and continue after acquiring knowledge thereof, notwithstanding it had caused grease and water to accumulate thereupon, said passageway being frequented by hundreds of people daily, as required in the exercise of ordinary care and diligence under the circumstances. (f) In not keeping the premises and approaches safe by the exercise of ordinary care, in violation of Code § 105-401, the same being negligence as a matter of law. (g) In failing to provide a safe way of ingress and egress to petitioner who was a guest and invitee lawfully upon the premises of said defendant at said time and place as heretofore alleged. (h) In failing to give plaintiff any warning or notice of said slippery condition or slippery surface of said floor as heretofore described and in holding same out to plaintiff as a reasonably safe way by which to enter said premises. 23. Plaintiff shows that he had resided at said hotel for a period of two years preceding the date of his injuries as set out herein, and was a resident of said hotel at the time of said injuries. 24. Plaintiff shows that the water standing on the floor of said lobby was placed there by an employee of the defendant, whose name is known to defendant but unknown to plaintiff. 25. Plaintiff shows that at all other times, when defendant mopped and wet said floor, defendant placed a warning on said wet areas, or blocked said wet areas off by chairs and other means to prevent persons from walking on said wet areas. 26. Plaintiff shows that when he walked down said steps, that he looked down steps and down on said lobby floor, but did not observe the water standing thereon because said water was translucent and transparent on said marble floor and not visible to the eye. 27. Plaintiff shows that prior to slipping and falling on said floor as herein set out, he did not see any employee or servant of the defendant mopping or wetting said floor. 28. Plaintiff alleges that said water standing on the lobby floor was soapy. 29. Plaintiff shows that at the time he suffered said injuries said wet area was not blocked off by chairs or other means, and no warning was placed thereon to show that said area was wet."
The defendant demurred generally and specially to the petition, the trial judge sustained the general demurrer and dismissed the petition, and the plaintiff excepted. The order in this respect, in part, is as follows: "Assuming without ruling, that defendant company was guilty of actionable negligence in washing its hotel lobby with water and failing to warn its patrons of the same, it does not sufficiently appear from the petition that the plaintiff himself was in the exercise of ordinary care for his own safety in walking upon said lobby floor in its wet condition, consequently defendant's demurrer is sustained and said petition dismissed."
From the allegations of the petition it appears that the plaintiff slipped and fell on a marble floor in the defendant's hotel lobby, which, at the time, was covered with soapy water. It is contended by the plaintiff in error in his brief that since the soapy water on the marble floor was not visible because it was transparent and translucent, the plaintiff was not guilty of negligence in failing to avoid a latent dangerous condition of which he was not aware. But it does not appear from the petition that the hotel lobby was not well lighted, nor does it appear that the plaintiff's vision was defective. Although it is alleged that the soapy water was transparent and translucent, soapy water that is transparent is not necessarily invisible, and soapy water that is translucent is visible, notwithstanding the allegation of the pleader that it was not visible. It appears from the petition that the plaintiff was familiar with the lobby floor and conditions in the hotel, as it is alleged that he had resided in the hotel for two years prior to the accident in question. The allegations of a petition on demurrer must be construed most strongly against the pleader, and only facts well pleaded, and not the conclusions of the pleader, are admitted by the demurrer. From the allegations of the petition in this case it appears that the plaintiff's injuries were the result of his own failure to exercise ordinary care in walking upon the marble floor of the hotel lobby while it was covered with soapy water, at the time and place in question, and in such circumstances the question of negligence is properly decided by the court as a matter of law. Accordingly, the trial judge did not err in sustaining the general demurrer to the petition and in dismissing the action. See, in this connection, Lebby v. Atlanta Realty Corp., 25 Ga. App. 369 ( 103 S.E. 433); Ogain v. Imperial Cafe, 25 Ga. App. 415 ( 103 S.E. 594); Hendricks v. Jones, 28 Ga. App. 335 ( 111 S.E. 81); Avary v. Anderson, 31 Ga. App. 402 ( 120 S.E. 683); National Bellas-Hess Co. v. Patrick, 49 Ga. App. 280 ( 175 S.E. 255); Lane Drug Stores v. Story, 72 Ga. App. 886 ( 35 S.E.2d 472); Holman v. American Automobile Ins. Co., 201 Ga. 454, 460 ( 39 S.E.2d 850). See also the recent case of Banks v. Housing Authority of the City of Atlanta, 79 Ga. App. 313 ( 53 S.E.2d 595), and citations.
None of the cases cited by the plaintiff in error authorizes or requires a different ruling from the one here made. In Bass v. Southern Enterprises, 32 Ga. App. 399 ( 123 S.E. 753), it does not appear that any issue was made as to whether or not the condition of the floor was obvious, there being a difference of some 6 inches between the floor under the seats in the theater and the aisle. In Wynne v. Southern Bell Tel. c. Co., 159 Ga. 623, 629 ( 126 S.E. 388), the Supreme Court pointed out that under the facts and circumstances of that particular case it could not be held as a matter of law that the alleged defect in certain steps was apparent, and that an ordinarily prudent person would not have reason to apprehend its existence. In Rothschild v. First Nat. Bank of Atlanta, 54 Ga. App. 486, 491 ( 188 S.E. 301), the same result was reached by the Court of Appeals in regard to the allegations of that particular petition, where it appeared that the plaintiff slipped and fell on a slippery floor, and that the condition was not obvious to her. In Macon Academy Music Co. v. Carter, 78 Ga. App. 37 ( 50 S.E.2d 626), the Court of Appeals, speaking through Judge Gardner, very carefully pointed out that a wooden floor was involved, which had absorbing propensities, and that it appeared that the floor had absorbed the liquid so that the slick condition of the floor was not apparent, and thus distinguished the case from the Lebby case, supra, where a tile floor was involved.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232, Code, Ann. Supp. § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.
Judgment affirmed. Sutton, C. J., MacIntyre, P. J., Gardner and Worrill, JJ., concur. Felton and Townsend, JJ., dissent.
I do not think that the allegations of the petition affirmatively show as a matter of law that the plaintiff was guilty of such negligence as would bar his recovery.