Opinion
36336.
DECIDED NOVEMBER 19, 1956. REHEARING DENIED DECEMBER 5, 1956.
tort; injuries to invitee. Before Judge Pharr. Fulton Superior Court. May 22, 1956.
W. Neal Baird, Hurt, Gaines Baird, for plaintiff in error.
Howard Hyatt, Eugene L. Tiller, contra.
Under the allegations of the petition a jury question was presented as to whether or not the plaintiff was entitled to recover. The court did not err in overruling the general and special demurrers.
DECIDED NOVEMBER 19, 1956 — REHEARING DENIED DECEMBER 5, 1956.
Mrs. George A. Townsend filed an action for damages suit against Rich's, Inc. The defendant filed demurrers, both general and special. The trial judge overruled all of the demurrers. It is to this judgment that the defendant excepts and assigns error here.
We deem it expedient to set forth in substance the petition and the demurrers, since they are so extensively argued by counsel for both parties. The petition, omitting the formal parts, reads: "1. The defendant herein is Rich's, Inc., a corporation having an office and agent and place of business in the City of Atlanta, Fulton County. 2. Said defendant has damaged petitioner . . . by reason of the facts hereinafter set out. 3. On February 2, 1954, petitioner was injured as a result of the negligence of said defendant, as will be hereinafter more fully described. 4. The business of said defendant is the maintaining and operation of a store for the sale of merchandise to members of the general public and said defendant was so engaged on the date petitioner was injured as aforesaid. 5. On said date at approximately 12 o'clock noon, petitioner was in the store and place of business of said defendant as a prospective customer and for the purpose of looking at articles of merchandise which defendant had for sale. 6. Petitioner went to the fourth floor of said store and visited what was known as the `Store for Homes,' one of the departments of defendant's business in which there were on display and for sale various articles of furniture, rugs and other merchandise of the type generally used in homes. 7. A portion of said fourth floor in said store for homes was so arranged that articles of merchandise were displayed in such manner as to illustrate a model room. 8. Members of the public and prospective customers were invited to wander through said rooms and inspect the various articles of merchandise on display. 9. As petitioner and her friend prepared to leave the model room they started through an opening approximately three feet wide, leading out of said room. 10. On the left hand side of that part of the floor along which petitioner was walking as she started to leave said room there were a number of flower pots containing ferns and other plants. 11. Some of the ferns in said pots were bent over and spread out along the floor to the left of petitioner, having reference to the direction in which she was walking, and said pots were partly covered by said ferns and plants. 12. As petitioner started through said opening her friend was walking along even with her on her right-hand side, having reference to the direction in which she was walking, and just as they reached said opening petitioner's left foot was inadvertently placed upon one of the ferns. 13. When petitioner stepped on the leaves of the fern which appeared to be resting on the floor she suddenly was made aware of the fact that there was no floor immediately underneath said leaves but that she had stepped into a pit approximately 10 inches deep, and that the flower pots were not sitting on the floor surface but on the bottom of said pit. 14. As a result of stepping into said pit among said flower pots, petitioner was thrown off-balance and fell backward to the floor, sustaining severe and painful injuries which will be hereinafter described. 15. Petitioner further shows in this connection that there was no guard or other device along the edge of said floor at the point where said pit had been constructed, and there was nothing to indicate to petitioner or a person walking along said floor that said pit had been built in the floor at said point, or that said flower pots were not on the level surface of the floor. 16. When petitioner fell as aforesaid, she sustained injuries to her back, shoulders, left hip and left leg, and as a result of the fall she sustained a ruptured intervertebral disc. 17. She likewise sustained various contusions about the body and suffered a severe shock to her entire nervous system. 18. Petitioner suffered intense physical pain and mental anguish as a result of said injuries and she has not yet recovered from the effects thereof, but continues to suffer with pain in the lower part of her back, her left hip and left leg, and she alleges that her injuries are permanent. 19. Petitioner alleges that said defendant was negligent at said time and place in the following particulars, to wit: (a) In that it built said pit in said floor adjacent to that part of the floor leading from said room as hereinabove described along which persons would be walking, and failed to place any guard, railing or other protective device along the edge of said pit so that persons walking along said floor would be prevented from stepping into said pit. (b) In that it constructed said pit and placed therein pots containing plants and ferns in such manner as to conceal the fact that said pots were not standing on the floor but were in a pit some ten inches below the floor level. (c) In that it failed to place any sign or warning at any point in said room indicating that said pit was adjacent to the edge of the floor along which petitioner was walking, and failed to post any notice whatsoever of the existence of said pit. (d) In that it allowed said ferns to overflow said pots to such extent that the leaves would spread out and cover and conceal said pit, thus creating a pitfall or trap into which defendant's invitees were likely to fall; petitioner alleging in this connection that such condition existed at the time she fell as aforesaid. (e) In that it failed to place soil or dirt among said pots in such manner as to eliminate any depression which would cause the place where said pots were located to be lower than the level of the floor along which persons would walk as they were leaving said room. 20. Petitioner alleges that she did not discover the presence of said pit and had no knowledge of its existence until she stepped therein as aforesaid. 21. Petitioner alleges that by reason of the presence of said ferns and the condition in which the leaves thereof were apparently spread along the floor, it was impossible for petitioner to observe, without a close inspection thereof, that said leaves were not lying on the floor but concealed a hidden pit. 22. Petitioner alleges that the proximate cause of the injuries sustained by her was the negligence of said defendant as herein set out."
The demurrers, omitting the formal parts are: "1. The defendant demurs generally to said petition for that said petition, as a whole or in any of its paragraphs, allegations or parts, fails to set forth a cause of action against the defendant. 2. Defendant demurs specially to plaintiff's petition as a whole upon the ground it is duplicitous, there being allegations of negligence and allegations of wilfulness and wantonness in the same count. 3. Defendant demurs specially to said petition for that paragraphs, allegations, and parts thereof are altogether multifarious. Plaintiff attempts in said petition to allege, join and combine portions of several distinct, separate, independent and inconsistent causes of action. Such procedure is illegal and plaintiff should be required to elect which asserted cause of action — if any — she will retain. All other causes of action should be stricken. 4. Defendant demurs to the portion of the allegation contained in paragraph 2 of said petition reading `by reason of the facts hereinafter set out,' and moves to strike same for that such allegation is a mere conclusion of the pleader, without any factual basis therefor being alleged in said paragraph or in said petition. 5. Defendant demurs to the portion of the allegation contained in paragraph 3 of said petition reading `as will be hereinafter more fully described,' and moves to strike same for that such allegation is a mere conclusion of the pleader, without any factual basis therefor being alleged in said paragraph or in said petition. 6. Defendant demurs to the portion of the allegation contained in paragraph 4 of said petition reading `as aforesaid,' and moves to strike same for that such allegation is a mere conclusion of the pleader, without any factual basis therefor being alleged in said paragraph or in said petition. 7. Defendant demurs to paragraph 8 of said petition and moves to strike same for that the allegations thereof are mere conclusions of the pleader, without any factual basis therefor being alleged in said paragraph or in said petition. 8. Defendant demurs to the portion of the allegation contained in paragraph 14 of said petition reading `which will be hereinafter described,' and moves to strike same for that such allegation is a mere conclusion of the pleader, without any factual basis therefor being alleged in said paragraph or in said petition. 9. Defendant demurs to the portion of the allegation contained in paragraph 16 of said petition reading `as aforesaid,' and moves to strike same for that such allegation is a mere conclusion of the pleader, without any factual basis therefor being alleged in said paragraph or in said petition. 10. Defendant demurs to paragraph 19 (d) of said petition and moves to strike same for that: (a) The allegations of said paragraph are mere conclusions of the pleader, without any factual basis therefor being alleged in said paragraph or in said petition; (b) The allegations of said paragraph are not germane to the issues of this case; and (c) The allegations as to `a pitfall or trap' are irrelevant and immaterial to the plaintiff's asserted fall, which she alleges in said paragraph occurred `as aforesaid.' 11. Defendant further demurs to paragraph 19 (d) of said petition and demurs to the petition as a whole for that the allegations of said paragraph 19 of said petition asserting the creation of `a pitfall or trap' are inconsistent and in conflict with plaintiff's assertions of `negligence,' and there thus results patent duplicity in pleading. Plaintiff should not be permitted to equivocate and should be required to make an unequivocal election upon which allegations of the petition she will rely."
We wish to commend counsel for both parties for their diligence in calling to the attention of this court over one hundred citations, including Code sections and decisions of the appellate courts concerning the sufficiency and deficiency as to whether or not a petition for damages based on negligence or lack of negligence is subject to demurrer. We will not attempt to discuss all of these cases brought to our attention. We think only a few cases are necessary in order for us to arrive at a decision. We are aware that a petition must be construed most strongly against the pleader. We call attention to Macon Academy Music Co. v. Carter, 78 Ga. App. 37, 39 ( 50 S.E.2d 626) wherein this court held: "We will first consider whether the court erred in overruling the demurrer. It is conceded by all that ordinarily questions of ordinary care are for the jury to determine, but where defective conditions of floors are obvious under ordinary circumstances, if ordinary care is employed in using the sense of sight and where such conditions are so obviously dangerous that no person of ordinary prudence while in the exercise of ordinary care would use the floor, then the courts have held that the issue will be resolved against the plaintiff on demurrer. There is a long line of decisions where our courts have held uniformly that where the defect is hidden and would not be obvious to the plaintiff in the exercise of ordinary care, the question is for the jury. As illustrative of this line of decisions, see Mattox v. Lambright, 31 Ga. App. 441 ( 120 S.E. 685); Moore v. Sears, Roebuck Co., 42 Ga. App. 658 ( 157 S.E. 106); Wynne v. Southern Bell Tel. c. Co., 159 Ga. 623 ( 126 S.E. 388); Firestone Service Stores v. Gillen, 58 Ga. App. 782 ( 199 S.E. 853); Scott v. Rich's, Inc., 47 Ga. App. 548 ( 171 S.E. 201); Woolworth Company v. Wood, 32 Ga. App. 575 ( 124 S.E. 110); Parsons v. Sears, Roebuck Co., 69 Ga. App. 11 ( 24 S.E.2d 717); Colonial Stores v. Scholz, 73 Ga. App. 268 ( 36 S.E.2d 189); Rothschild v. First National Bank of Atlanta, 54 Ga. App. 486 ( 188 S.E. 301); Holloman v. Henry Grady Hotel Co., 42 Ga. App. 347 ( 156 S.E. 275); Southern Grocery Stores v. Braun, 57 Ga. App. 31 ( 194 S.E. 219); Southern Grocery Stores v. Greer, 68 Ga. App. 583 ( 23 S.E.2d 484); Mandeville Mills v. Dale, 2 Ga. App. 607 ( 58 S.E. 1060). There are other decisions to the same effect." We call attention also to Townley v. Rich's, Inc., 84 Ga. App. 772, 775 ( 67 S.E.2d 403), which reads as follows: "As was said by Powell, J., in Mandeville Mills v. Dale, 2 Ga. App. 607, 612 ( 58 S.E. 1060), `Ordinary care and diligence, as applied to the keeping of premises in safe condition, is a very elastic term, varying the quantum of actual caution to be exercised, according to the nature of the use to which the property is devoted.'. . . To paraphrase this court's language in Firestone Service Stores v. Gillen, 58 Ga. App. 782, 786 ( 199 S.E. 853), if knowledge of the worn-down, smooth condition of the metal strip was knowledge of specific defects, and the plaintiff had knowledge of these particular defects, and yet had no knowledge of the particular, unapparent, dangerous condition connected therewith which occasioned the injury ( Samples v. City of Atlanta, 95 Ga. 110, 22 S.E. 135), knowledge of such defects does not necessarily import knowledge of a dangerous condition of such stairway. We again say that `knowledge of defect' should not be confused with `knowledge of danger.' Mathis v. Gazan, 51 Ga. App. 805, 808 ( 181 S.E. 503), and whether or not the plaintiff in the instant case had knowledge of the danger present in using the stairway is a question for the jury." We think this principle of law applies in the instant case.
We have studied all of the contentions of the defendant with reference to the inconsistencies and the contentions as to wilful and wanton negligence and other questions made by the general and special demurrers. We cannot reach any conclusion but that the petition set out a cause of action based on ordinary negligence to be determined by a jury. It must be kept in mind that it may be conceded, but this court does not decide, that the plaintiff was in some degree negligent, but under the same comparative negligence rule of this State if the plaintiff was less negligent than the defendant, the plaintiff would be entitled to recover some amount. All of these are jury questions.
Judgment affirmed. Townsend and Carlisle, JJ., concur.