De Lay v. Rich's, Inc., s. 33965
| Decision Date | 19 April 1952 |
| Docket Number | Nos. 33965,33998,No. 1,s. 33965,1 |
| Citation | 70 S.E.2d 546,86 Ga.App. 30 |
| Parties | DE LAY v. RICH'S, Inc. RICH'S, Inc. v. DE LAY |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The petition did not allege any negligence as against the defendant and, therefore, stated no cause of action, and the court did not err in sustaining the general demurrer to the petition.
Mrs. Mary I. De Lay sued Rich's Incorporated, for injuries allegedly due to the negligence of the defendant. Certain of the defendant's demurrers were overruled and certain were sustained with leave to amend. The defendant excepted pendente lite to the overruling of its demurrers. The defendant renewed its general and several special demurrers to the amended petition. The court sustained the general demurrer to the amended petition and the plaintiff excepted. The defendant by cross-bill assigned error on its exceptions pendente lite.
T. Elton Drake, John M. Williams, Atlanta, for De Lay.
W. Neal Baird, Neely, Marshall & Greene, and Ferdinand Buckley, all of Atlanta, Ferdinand Buckley, Marshall, Greene, Baird & Neely, Atlanta, for Rich's Inc.
1. (a) The plaintiff was injured when she stumbled over a footstool in the defendant's shoe department while she was shopping in the department. The acts of negligence claimed by the plaintiff to have been committed by the defendant were: leaving the footstool in a narrow aisle in the shoe department where she could stumble over it; having at the end of said aisle a metal object which produced a glare from the reflection of lights which partially blinded her; having insufficient lighting in the shoe department which left the floor of that department in a shadow and in darkness. We think that the plaintiff failed to allege a cause of action against the defendant. The plaintiff alleged: (Emphasis supplied.) Nowhere in the petition is it alleged that the footstool was not in use when the plaintiff stumbled over it; therefore it must be construed as alleging that the footstool was in use at the time. The plaintiff's allegations admit that it was the custom and usage to have the footstools in the aisles for the purpose of fitting shoes on customers. Under our construction of the petition, it was not negligence to put the footstools to the use for which they were intended in a customary manner.
b. The petition...
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