Great Atlantic & Pacific Tea Co. v. Miller

• Decision Date: 11 October 1934
• Docket Number: 6 Div. 461.
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. MILLER.
• Court: Alabama Supreme Court

156 So. 834

229 Ala. 313

GREAT ATLANTIC & PACIFIC TEA CO. v. MILLER.

6 Div. 461.

Supreme Court of Alabama

October 11, 1934

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages for personal injuries by Elizabeth Miller against the Great Atlantic & Pacific Tea Company and another. From a judgment for plaintiff, the named defendant appeals.

Affirmed conditionally.

J. L Drennen, of Birmingham, for appellant.

Taylor & Higgins and Chas. W. Greer, all of Birmingham, for appellee.

FOSTER Justice.

The petition for removal to the federal court is not shown to have been accompanied with a bond as required by law. Without such bond, the petition, though sufficient, does not cause a removal of the suit. USCA title 28, § 72, note 261.

It is not necessary that we consider the sufficiency of the petition, though it may have been filed in due time. 54 C.J 306, notes 81, et seq.

It is conceded that if a proper petition and bond for removal be duly filed, the state court has no jurisdiction to proceed further. Ex parte Consolidated Graphite Corporation, 221 Ala 394, 129 So. 262; Stix v. Keith, 90 Ala. 121, 7 So 423.

Plaintiff's evidence tended to show that she was a customer in defendant's store, made some purchases, and left it by the front door. The door was equipped with double screen shutters, and on that occasion they were propped open by crates of vegetables, and that a box of potatoes was set at the outer end of one shutter on the sidewalk where pedestrians were accustomed to pass; that she stumbled on the box, fell, broke her right arm, and suffered pain and permanent injuries resulted.

Defendant's evidence tended to show that the box of potatoes was used to prop the shutter, and that where she fell there was no obstruction placed by it.

On that issue of fact, the evidence was in conflict, and it was determined by the jury. There is no reason why we should disturb that finding.

If the box was on the sidewalk set apart for that sort of travel she was under no duty to look out for such an obstruction, without notice that there was some occasion to do so. City of Decatur v. Gilliam, 222 Ala. 377, 133 So. 25; Birmingham v. Edwards, 201 Ala. 251, 77 So. 841. There was no direct evidence that she had such notice, and her own testimony was positive that she had none, and did not see it. But owing to its position and possible size, her own good eyesight, and that she passed it as she entered the store shortly before, and that it was in plain view to one so doing, it was thereby made an issue...