Macon Academy Music Co. v. Carter

• Decision Date: 13 November 1948
• Docket Number: 32186.
• Citation: 50 S.E.2d 626,78 Ga.App. 37
• Parties: MACON ACADEMY MUSIC CO. v. CARTER.
• Court: Georgia Court of Appeals

50 S.E.2d 626

78 Ga.App. 37

MACON ACADEMY MUSIC CO. v. CARTER.

No. 32186.

Court of Appeals of Georgia, Division No. 2.

November 13, 1948

Syllabus by the Court.

1. Generally, questions of ordinary care are for the jury to determine. However, where defective conditions of floors are obvious under ordinary circumstances, if ordinary care is employed in using the senses and where such conditions are so obviously dangerous that no one of ordinary prudence while in the exercise of ordinary care would use the floor, the courts will resolve the issue against a plaintiff on demurrer.

2. The evidence is sufficient to sustain the verdict on the general grounds.

3. In the absence of a written request to charge as to the contentions of the parties, a charge generally to the effect that the pleadings will be out with the jury to which they may refer to ascertain the contentions of the parties, is sufficient.

4. A proper consideration of the charge of the court, as a whole, requires no reversal for any of the reasons assigned as fully dealt with in this division of the opinion.

Mrs. J. J. Carter, whom we shall call the plaintiff, sought recovery of damages for injuries which she allegedly received by reason of a fall negligently caused by the Macon Academy Music Company, whom we shall call the defendant. The defendant maintained an office building in the City of Macon. Dr. Joanis was a tenant of the defendant and the plaintiff was a patient of Dr. Joanis. As an invitee of the defendant on the occasion in question she took an elevator provided by the defendant for the purpose of going as a patient of Dr. Joanis. When she reached the floor of the building where the office was located, she left the elevator went into the office of the doctor, remained there about 30 minutes, left his office for the purpose of going to the elevator to descend. As she walked, about half the distance from the office to the elevator, she slipped and fell and received injuries for which she sued. The petition, as amended, alleged in paragraph 5: 'Petitioner observed as she entered said hallway that one of the servants or agents of the defendant had been mopping or cleaning the floor of said hallway, but the part of the hallway used by petitioner appeared to have dried off and there was nothing to indicate that the surface of the floor was slick and that it would not be safe for petitioner to walk from Dr. Joanis's entrance to the defendant's elevator.' And in paragraph 7, it is alleged: 'The wooden floor was worn slick and smooth from excessive wear, and there was no coating of paint of other substance on said floor to prevent the floor's absorbing the water used in cleaning. Consequently, an unusual and excessive amount of slick, soapy water was absorbed into the floor, thereby rendering said floor extremely slick and treacherously slippery, although there was nothing about the outward appearance of the said floor to give petitioner notice of such condition.' The specifications of negligence are:

'(a) Putting an excess amount of water on its hallways during business hours when she had a right to expect safe ingress and egress from the dentist's office.

'(b) In mixing soap and other cleaning agents with the water, which would make the floor unusually slippery.

'(c) In not warning petitioner that said floor was slippery.

'(d) In not providing safe ingress and egress from its elevator to the office entrance of Dr. Joanis.' Demurrers, both general and special, were filed to the original petition. The plaintiff offered certain amendments which were allowed. After the petition was amended, the defendant renewed its general demurrer to the petition as amended. The court overruled this general demurrer. To the judgment overruling this demurrer, the defendant filed exceptions pendente lite. The defendant answered the plaintiff's petition generally, denying liability and for further answer pled: 'Paragraph 5. Further answering, defendant says that it exercised all the care and diligence required of it in and about the matters and things complained of in plaintiff's petition and was not negligent as therein alleged.

'Paragraph 6. Further answering, defendant says that the plaintiff herself was negligent and failed to exercise ordinary care and diligence.

'Paragraph 7. Further answering, defendant says that if it was negligent, which it expressly denies, the plaintiff could have avoided the consequences thereof by the exercise of ordinary care and diligence.'

The case proceeded to trial and a verdict was returned for the plaintiff. The defendant filed a motion for a new trial on the general grounds and thereafter added, by amendment, 9 special grounds. The court overruled the amended motion. To this judgment the defendant assigns error. Error is assigned also on the exceptions pendente lite.

Harris, Harris, Russell & Weaver, of Macon, for plaintiff in error.

Martin, Snow & Grant and George C. Grant, all of Macon, for defendant in error.

GARDNER Judge.

1. We will first consider whether the court erred in overruling the demurrer. It is conceded by all that ordinarily questions of ordinary care are for the jury to determine, but where defective conditions of floors are obvious under ordinary circumstances, if ordinary care is employed in using the sense of sight and where such conditions are so obviously dangerous that no person of ordinary prudence while in the exercise of ordinary care would use the floor, then the courts have held that the issue will be resolved against the plaintiff on demurrer. There is a long line of decisions where our courts have held uniformly that where the defect is hidden and would not be obvious to the plaintiff in the exercise of ordinary care, the question is for the jury. As illustrative of this line of decisions, see Mattox v. Lambright, 31 Ga.App. 441, 120 S.E. 685; Moore v. Sears, Roebuck & Co., 42 Ga.App. 658, 157 S.E. 106; Wynne v. Southern Bell Telephone & Telegraph Co., 159 Ga. 623, 126 S.E. 388; Firestone Service Stores, Inc. v. Gillen, 58 Ga.App. 782, 199 S.E. 853; Scott v. Rich's, Inc., 47 Ga.App. 548, 171 S.E. 201; Woolworth Co. v. Wood, 32 Ga.App. 575, 124 S.E. 110; Parsons v. Sears, Roebuck & Co., 69 Ga.App. 11, 24 S.E.2d 717; Colonial Stores, Inc., v. Scholz, 73 Ga.App. 268, 36 S.E.2d 189; Rothschild v. First National Bank of Atlanta, 54 Ga.App. 486, 188 S.E. 301; Holloman v. Henry Grady Hotel Co., 42 Ga.App. 347, 156 S.E. 275; Southern Grocery Stores, Inc., v. Braun, 57 Ga.App. 31, 194 S.E. 219; Southern Grocery Stores, Inc., v. Greer, 68 Ga.App. 583, 23 S.E.2d 484; Mandeville Mills v. Dale, 2 Ga.App. 607, 58 S.E. 1060; Wynne v. Southern Bell Telephone & Telegraph Co., 159 Ga. 623, 126 S.E. 388. There are other decisions to the same effect. We have called attention to those cited above because they are the ones which distinguished counsel for both parties have cited and discussed. We see nothing to be gained by our discussing them. It is agreed that the facts in those cases are where the negligence alleged was a question of fact for the jury. The plaintiff relies particularly on the facts of the cases of Rothschild v. First National Bank of Atlanta, supra, and Maddox v. Lambright, supra, as being peculiarly applicable to the facts of the instant case, and contends that the court did not err in overruling the demurrer. There is a line of cases, however, which hold, as above stated, that where a defective condition of a floor is so obvious, under ordinary circumstances, if ordinary care is employed, and such conditions are so obviously dangerous that no person of ordinary prudence would use the floor, the question as to whether the plaintiff exercised ordinary care for his or her own safety, will be decided by the court as a matter of law.

The defendant relies for reversal on this latter line. And relies particularly on the case of Lebby v. Atlanta Realty Corporation, 25 Ga.App. 369, 103 S.E. 433, and contends that the allegations of fact in the instant case come peculiarly within that line of decisions; and is controlled by the opinion of the court under allegations of fact as in that case; and that the instant case is so palpably similar to the allegations in the Lebby case as to be controlling here; and that the judge erred in overruling the demurrer; and that the case should be reversed. The Lebby case is the only one cited and discussed by counsel for the defendant or by counsel for the plaintiff, as to that matter, on the question of the defect being so obviously dangerous that no person of ordinary prudence in the exercise of ordinary care would use the floor. As to the allegations of fact in the Lebby case, we will make this observation only: In that case the floor was a tile one and the substance was put upon the tile floor, which had no absorbing propensities and which we think could be more easily seen than could the substance put upon the wooden floor in the instant case which had absorbing qualities. Here the floor was a wooden one and it is alleged that the wooden floor had absorbed a great quantity of the liquid substance put there for mopping purposes. It is alleged in the instant petition, in effect, that the wooden floor had absorbed the liquid substance to the extent that it did not obviously appear dangerous to an ordinarily prudent person in the exercise of ordinary care. And it is further alleged in effect that the wooden floor, after so absorbing the liquid, was left slick and caused the plaintiff to fall and receive the injuries of which she complained. In our opinion the court did not err in overruling the general demurrer to the petition as amended.

2. As to the general grounds, while the evidence is conflicting in some particulars, we think it sufficient to sustain the...