Kahn v. Graper

• Decision Date: 08 November 1966
• Docket Number: Nos. 42063,42064,No. 3,s. 42063,3
• Citation: 152 S.E.2d 10,114 Ga.App. 572
• Parties: Julius KAHN v. Margaret E. GRAPER. Julius KAHN v. C. E. GRAPER, by Next Friend
• Court: Georgia Court of Appeals

Page 10

152 S.E.2d 10

114 Ga.App. 572

Julius KAHN v. Margaret E. GRAPER.

Julius KAHN v. C. E. GRAPER, by Next Friend.

Nos. 42063, 42064.

Court of Appeals of Georgia, Division No. 3.

Nov. 8, 1966.

Syllabus by the Court

1. In connection with an appeal from the denial of a summary judgment error may be enumerated on any prior adverse ruling, including the overruling of a general demurrer to the petition.

2. The petition by a licensee against the owner of a building seeking damages for injuries sustained when the licensee fell down a stairway fails to allege facts from which it can be inferred that the condition of the stairs constituted a mantrap or pitfall, or that his injuries were wilfully or wantonly inflicted, and was subject to general demurrer.

Mrs. Margaret E. Graper brought suit against Julius Kahn alleging that at 4:30 p.m. on September 7, 1959, her husband, Charles Graper, as a licensee, went on to the premises of the defendant known as 307 West Congress Street in Savannah, looking for a friend whom he thought to live there. The building was a three story apartment house occupied by Negroes, and plaintiff alleged that her husband, attempting to descend the stairs, slipped and fell 'from the top of said flight and then over its banister rail to the first floor as a result of the steps being worn so as to taper inward and downward toward the front edge; the front edge of said steps at the top of the flight where same turns ninety degrees being angled back toward the banister post so as to become narrow; broken; obstructed; and the stairway being unlighted and dark.' Defendant is charged with failing to maintain the steps in a safe condition by keeping them level, straight and of sufficient width and in good repair, unobstructed and properly lighted. It was alleged that the condition had existed 'for a sufficient length of time for the defendant to have known of it, but that it was not obvious and apparent to Graper.' By amendment it was alleged that the condition of the stairs constituted a mantrap or pitfall. Plaintiff seeks to recover for her loss of consortium.

A similar suit was brought by Graper to recover for his injuries.

Defendant demurred generally and moved for summary judgment in both actions. In connection with the motions for summary judgment depositions and affidavits of tenants, investigating officers, an architect, an engineer, and the rental agent, which established that on Labor Day at about 4:30 in the afternoon the Negro tenants heard something fall about the stairway and upon going out to investigate saw Graper, a white man, lying unconscious at the foot of the steps without trousers on. His trousers were hanging on a nail in the wall between the second and third floors. The building and stairs, though old, were in good, sound condition. The stairs were lighted by a skylight during the day, deemed adequate lighting, and by an electric light at night. Linoleum strips cemented to the steps for covering were worn from use. At the top of the steps there was a ninety-degree turn so that the inside of the steps narrowed. The tenants found nothing wrong with the condition of the stairs, and had made no complaints or asked for any repairs. Nobody saw Graper fall and none could say how or why it happened.

Plaintiff offered no evidence.

To the overruling of the general demurrers and motions for summary judgment defendant appeals.

Lewis & Javetz, Emanuel Lewis, Savannah, for appellant.

Joseph B. Bergen, Savannah, for appellees.

EBERHARDT, Judge.

1. Although there was no appeal from the overruling of the general demurrer until more than 30 days after that judgment was entered, in the situation here it did not become the law of the case. The Supreme Court has held in Undercofler v. Grantham Transfer Co., 222 Ga. 654, 151 S.E.2d 765 that the denial of a motion for summary judgment is now an appealable judgment, standing alone. ¹ It is thus placed in the same category as the judgment on a verdict or the denial of a motion for new trial, so that when there is an appeal from it error can be enumerated on all adverse antecedent rulings of the court, including the overruling of a general demurrer. Section 1(3) of the Appellate Practice Act of 1965 (Code Ann. § 6-701). There is an appeal here from the denial of a summary judgment, entered within the time provided by § 5 of the Act (Code Ann. § 6-803), and error is enumerated both on the overruling of the general demurrer and the denial of the summary judgment. Consequently, we shall proceed first with a consideration of the ruling on the general demurrer.

2. It is conceded in the petition that Graper was no more than a licensee ² on the occasion when he suffered his injury. By the provision of Code § 105-402 the defendant could be held only for wilful or wanton injury. 'Under the allegations of the petition, the person alleged to be injured was a licensee, he having entered the building at his own risk. Hence wilful and wanton negligence must appear from the petition.' Leach v. Inman, 63 Ga.App. 790, 793, 12 S.E.2d 103, 106. Do the allegations of this petition disclose the infliction of a wilful or wanton injury upon Graper? We think not.

While plaintiff does allege that the stairs were in such condition as to constitute a mantrap or a pitfall, so that an injury resulting from their use would be wantonly inflicted, it is elemental that this general allegation must yield to the specific allegations of fact. Henderson v. Baird, 100 Ga.App. 627, 634, 112 S.E.2d 221. The specific allegations are that the steps were 'worn so as to taper inward and downward toward the front edge,' that 'the front edge of said steps at the top of said flight where the same turns ninety degrees, being angled back toward the banister post so as to become narrow; broken; obstructed; and the stairway being unlighted and dark.'

The mere fact that steps are worn and smooth from use does not necessarily indicate the existence even of ordinary negligence. Pettit v. Stiles Hotel Co., Inc., 97 Ga.App. 137, 102 S.E.2d 693; Banks v. Housing Authority of City of Atlanta, 79 Ga.App. 313, 53 S.E.2d 595; Holloman v. Henry Grady Hotel Co., 42 Ga.App. 347, 156 S.E. 275. Cf. Scott v. Rich's Inc., 47 Ga.App. 548, 171 S.E. 201; Townley v. Rich's, Inc., 84 Ga.App. 772, 67 S.E.2d 403; Belk Gallant Co. of Cartersville, Georgia v. McCrary, 88 Ga.App. 829, 78 S.E.2d 198.

The turning of steps at a ninety degree angle toward the banister at the top-thus making them narrow at one side-is a type of construction generally used and often found in buildings where people live. The narrowing is obvious to all who use them. It is a statical condition, and '(b)efore a recovery is authorized for the plaintiff in an action against an owner and occupier of land for injuries occasioned by falling down a stairway (even) while an invitee on such premises, it must be shown that such stairs were less safe than those provided by ordinarily prudent owners and occupiers of land for their invitees.' Pettit v. Stiles Hotel Co., 97 Ga.App. 137, 102 S.E.2d 693, supra. And see Roberts v. Wicker, 213 Ga. 352, 99 S.E.2d 84.

If the steps were broken or obstructed, that was a statical condition which should have been perfectly obvious to any who used them. 'Where the alleged injury is caused by the dangerous, statical condition of the stairway, and no dangerous active operations were being carried on and no active negligence is involved, no duty arises with reference to the licensee of keeping the usual condition of the premises up to any standard of safety except that they must not contain a pitfall, a mantrap, or other things of that character.' Leach v. Inman, 63 Ga.App. 790(3), 12 S.E.2d 103, supra.

The doctrine of mantrap or pitfall is rested upon the theory that the owner is...