Cook v. Kroger Baking & Grocery Co

• Decision Date: 19 June 1941
• Docket Number: No. 28902.,28902.
• Citation: 15 S.E.2d 531
• Court: Georgia Court of Appeals
• Parties: COOK. v. KROGER BAKING & GROCERY CO.

15 S.E.2d 531

COOK.

v.KROGER BAKING & GROCERY CO.

No. 28902.

Court of Appeals of Georgia, Division No. 1.

June 19, 1941.

Syllabus by the Court.

1. Where special and general demurrers are filed to a petition claiming damages for negligence which alleges in general terms that the defendant was guilty of negligence, it is not sufficient to allege the negligence in general terms when the defendant objects by proper demurrers to such allegation or allegations, calling for the particulars of the negligence complained of; and when the judgment on the special demurrers requires the pleader to amend in these particulars wherein he has been delinquent, and he refuses to amend, the pleading may be dismissed if the delinquency relates to the entire cause of action set up in the petition.

2. "While under this rule negligence must be alleged in such a specific way as to put the defendant on notice of what it is to answer, still the rule is not to be carried to the extent of requiring minute particularity in the averments of negligence. See Sims v. Western & A. Railroad Company, 111 Ga. 820, 35 S.E. 696." Russell v. Central of Georgia Railway Co., 119 Ga. 705, 707, 46 S.E. 858.

3. "A general demurrer enables the party to assail every substantial imperfec-tion in the pleadings of the opposite side without particularizing any of them in his demurrer; but if he thinks proper to point out the faults, this does not vitiate it." Martin v. Bartow Iron Works, 35 Ga. 320, 323, Fed.Cas.No.9, 157. There was no error in sustaining the special demurrer in this case, and in thereafter sustaining the general demurrer and in dismissing the action.

Error from Superior Court, Fulton County; A. L. Etheridge, Judge.

Action by W. T. Cook against the Kroger Baking & Grocery Company to recover damages resulting from injuries sustained by plaintiff's wife who fell in defendant's store, wherein defendant filed demurrers. To review a judgment which dismissed the action, plaintiff brings error.

Affirmed.

W. T. Cook brought suit against Kroger Baking and Grocery Company seeking damages resulting from injuries allegedly sustained by his wife in a Piggly-Wiggly store operated by the defendant at College Park, Georgia. The petition alleges that it was the usual practice for a purchaser in the store to first obtain a basket at a counter, then proceed through the store to the various shelves, serving one's self to the various articles, and after obtaining all one desires go back to the counter where the cash register is located in order to get his purchases wrapped and to pay therefor. [It is further alleged that often purchasers accidently drop vegetables or other groceries on the floor in front of the counter where purchasers "check in, " and often they are mashed underfoot by the crowds coming up to the counter and cash register, and slick places are created on the floor in front of the counter and cash register and purchasers are apt to slip on said floor on account of said slick places.] That in the exercise of ordinary care the defendant should have had agents or servants to watch the floor in front of said counter and cash register, and clean the same in order to prevent it from becoming slippery or slick and thus prevent customers from slipping thereon and injuring themselves. [And that the defendant should have done this in the exercise of ordinary care.] On the occasion in question plaintiff's wife went into the defendant's store to make some purchases in the manner above described, and when she went to pay her bill and have her packages wrapped, she slipped on a slick place in front of said counter and cash register and fell heavily to the floor and was injured. The slick place on which plaintiff's wife slipped was caused by a piece of carrot top, which had been dropped on the floor and crushed underfoot by customers coming up to said counter, causing the floor to be slippery, and [because of the crowds about and coming up to the counter to have their packages wrapped and pay their bills, and being engaged herself in seeking to pay her bill and get her packages wrapped, she did not and could not see said slick place on the floor]. The defendant invited the plaintiff's wife into its store, and it was its duty to see that the floor was kept clean through inspection, and in failing so to do and in allowing it to become slippery the defendant failed to exercise ordinary care. Plaintiff asks for damages, doctor bills, etc., and $2,500 for the loss of services and consortium of his wife.

The defendant...