Herschel McDaniel Funeral Home, Inc. v. Hines

• Decision Date: 15 June 1971
• Docket Number: No. 45978,No. 3,45978,3
• Parties: HERSCHEL McDANIEL JUNERAL HOME, INC. v. Katie Mae HINES
• Court: Georgia Court of Appeals

Page 7

183 S.E.2d 7

124 Ga.App. 47

HERSCHEL McDANIEL JUNERAL HOME, INC. v. Katie Mae HINES.

No. 45978.

Court of Appeals of Georgia, Division No. 3.

June 15, 1971.

Lokey & Bowden, Glenn Frick, Atlanta, for appellant.

Cullen M. Ward, Frank M. Eldridge, Atlanta, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Mrs. Hines, an elderly lady, went with her granddaughter to the funeral home for the purpose of attending a funeral service. They arrived early and decided to go into the chapel to see the flowers. An attendant permitted them to enter at the side door, which led immediately into the area where the flowers were displayed. They proceeded to look at the flowers, and finding one display to be a bit high for close viewing, Mrs. Hines suggested 'Let's step back where we can see them better,' or something to that effect, and with that she stepped backward off the altar area to the chapel floor, lost her balance, fell, and was injured. There is a difference of six inches in the floor levels of the altar area and the chapel floor where the audience is seated. The floor of both areas was covered with a green carpet, having flecks of white. There was no warning sign of the step-down, and no metal strip or other device at the edge of the altar area for indicating its presence. The chapel-all areas-was well lighted. There were no shadows. There was no foreign substance on the floor. The carpet was clean and in good condition. She did not stumble or trip-just backed up and stepped down. She had not looked and did not know of the step-down, but could have seen it if she had looked.

Defendant moved for summary judgment, presenting plaintiff's deposition in which the above facts were testified to, affidavits and photographs of the inside of the funeral chapel. Plaintiff countered with affidavits, but these did not materially change the facts as disclosed by her deposition. Summary judgment was denied, and defendant appeals, having obtained the requisite certificate. Held:

This case is controlled by the rulings made in Executive Committee of Baptist Convention v. Wardlaw, 180 Ga. 148, 178 S.E. 155, reversing Wardlaw v. Executive Committee of Baptist Convention, 47 Ga.App. 595, 170 S.E. 830, which was conformed to in 50 Ga.App. 519, 179 S.E. 163; J. B. Pound Hotel Co. v. Vaissiere, 54 Ga.App. 162, 187 S.E. 279, affirmed in Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72, 190 S.E. 354; Roberts v. Wicker, 213 Ga. 352, 99 S.E.2d 84; White v. City of Manchester, 92 Ga.App. 642, 644, 89 S.E.2d 581; Nechtman v. Ben Thorpe & Co., 99 Ga.App. 626(1), 109 S.E.2d 633, and citations; Korn v. Tamiami Trail Tours, 108 Ga.App. 510, 515, 133 S.E.2d 616; Houser v. Walter Ballard Optical Co., 108 Ga.App. 559, 133 S.E.2d 924.

Judge Jenkins asserted in his dissent in 47 Ga.App. 595, 170 S.E. 830, supra, "The mere fact that there is a slight difference between floor levels in different parts' of a business building 'which the public are invited to enter does not in itself constitute negligence.' 45 C.J. 866. Such a variation of level in buildings, amounting to only a few inches (4 to 6 (inches) as shownn in adjudicated cases), constitutes a common method of construction, and does not of itself render it defective or negligent. (Citations).' His dissent was referred to approvingly in Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72, 190 S.E. 354, supra. Floor coverings, such as the carpet used here, are likewise common in use and their use is not, of itself, negligence. Gibson v. Consolidated Credit Corp., 110 Ga.App. 170(1), 138 S.E.2d 77. And see Holloman v. Henry Grady Hotel Co., 42 Ga.App. 347, 156 S.E. 275; Brand v. Pope, 103 Ga.App. 489, 491, 119 S.E.2d 723; Taff v. Harris, 118 Ga.App. 611, 164 S.E.2d 881; Goodwin v. mullins, 122 Ga.App. 84, 176 S.E.2d 551. 'The plaintiff had no right to complain of the absence of an accommodation of an unusual kind.' Tinley v. F. W. Woolworth Co., 70 Ga.App. 390, 394, 28 S.E.2d 322, 324, and see Pettit v. Stiles Hotel Co., 97 Ga.App. 137, 102 S.E.2d 693.

A contention that the carpet blended and caused an optical illusion so that one would not observe the step-down cannot avail, for it does not appear that plaintiff ever looked down, or that the optical illusion, if there was one, had anything to do with her injury. She admitted that if she had looked she could have seen the step-down (confirmed by photographs of the chapel), that she did not look down, but that she stepped off when she stepped back for getting into a better position for viewing the flowers. As to the duty of one to use his eyesight to discover a dangerous situation, see Holliday v. Mayor & Council of Athens, 10 Ga.App. 709, 713, 74 S.E. 67.

The contention of no warning of the step-down was made in the Wardlaw...