Hill Grocery Co. v. Hameker
| Decision Date | 05 April 1921 |
| Docket Number | 6 Div. 714 |
| Citation | 89 So. 850,18 Ala.App. 84 |
| Parties | HILL GROCERY CO. v. HAMEKER. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Jefferson County; R.V. Evans, Judge.
Action by Mrs. Frances L. Hameker against the Hill Grocery Company for damages for personal injuries sustained while on the premises. Judgment for plaintiff, and the defendant appeals. Affirmed.
Wood & Pritchard and Basil A. Wood, all of Birmingham, for appellant.
B.M Allen, of Birmingham, for appellee.
Appellee brought suit to recover damages of the appellant for injuries received by her while in the store of appellant. The damages resulted by reason of the fact that "she fell, or was caused to fall, into or over, or step into and fall, a dangerous unguarded opening or depression in the floor of the store of appellant." There was a verdict for plaintiff and defendant, in the court below, appeals.
The cause was tried upon counts 1 and 2 of the complaint as amended, and pleas 1, 11, and 12, demurrers having been sustained to the other pleas. The cause was tried upon the pleas of the general issue and contributory negligence.
The testimony showed that defendant was doing business as a grocery merchant in the city of Birmingham, being a lessee of the storehouse in which it was doing business. The testimony of the plaintiff, and her witnesses, was to the effect that, while the plaintiff was in the store of the defendant as a customer, she was injured by having stepped into a depression or sunken part of the floor; that she followed the clerk who was waiting upon her to the place where she was injured; that the store was poorly lighted, and that she did not see the place in the floor; that her ankle was sprained, and that she suffered pain and anguish from the injury, and incurred expenses for doctor's bills and medicines by reason of the injury.
The testimony of the defendant was to the effect that the place in the floor was such as was used in stores of that kind, and that it could have been observed by ordinary observation, and, further, that such depression was not in the part of the store to which customers were invited or accustomed to go. The testimony of the plaintiff tended to show that she went to that part of the store by invitation; that is, that she called for an article she wanted to purchase, and followed the clerk to the place at which she was injured. Pretermitting the insistence of appellee that the appellant cannot, for the first time on appeal, question the filing of an amendment to the complaint that appears in the record, although such proposition appears to be sound , we do not think there is any merit in the contention of the appellant that the amendments to the complaint are not shown to have been properly filed. An examination of the entire record shows that the court and the parties treated the amendments as being properly filed, and that the case was tried upon the complaint as amended, and pleas 1, 11, and 12 of defendant. It would be extremely technical to hold that such amendments were not properly filed before the court, when, as stated, the record clearly shows that the case was tried upon the complaint as amended.
There was no error in overruling the demurrers to the complaint as amended. It was not subject to any of the grounds of demurrer interposed thereto. The averments of negligence in the complaint were sufficiently stated.
The demurrers to pleas 4, 5, 6, and 7 were properly sustained. These pleas attempted to set up the defense that the defendant was the lessee of the storehouse, and that the depression in the floor was a fixture in the storehouse which under the terms of its lease this defendant could not remove. These pleas further attempt to justify the defendant, because the owner of the building would be liable to the person injured. It is true that the owner of a building, which is defectively constructed, would be liable to a person injured, still that would not exempt a person who conducts a business in said building. It may be stated as a general proposition of law that when a merchant opens his store for business he invites the public into his store, and the duty devolves upon him to furnish to the public a reasonably safe place in which to be while they are in his place of business, whether he owns the building or rents it. If there is a defect in the floor, it would be a monstrous proposition to hold that the merchant could invite the public into the place, and, when injury is suffered, shield himself...
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...growing out of such condition, obvious to all. Counsel for appellee contends that the complaint in the case of Hill Grocery Co. v. Hameker, 18 Ala.App. 84, 89 So. 850, held sufficient by this court, is decisive of the question of the sufficiency of the complaint in this case. The two compla......
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