Opelika Montgomery Fair Co. v. Wright
| Decision Date | 26 April 1951 |
| Docket Number | 5 Div. 506 |
| Citation | 255 Ala. 499,52 So.2d 412 |
| Parties | OPELIKA MONTGOMERY FAIR CO., Inc. v. WRIGHT. |
| Court | Alabama Supreme Court |
Walker & Walker, of Opelika, for petitioner.
Sadler & Sadler, of Birmingham, and Brown & McMillan, of Opelike, opposed.
Petitioner Ada Wright, suing as plaintiff in an action on the case against Opelika Montgomery Fair Company, Inc., had verdict and judgment for seven hundred and fifty dollars as damages for personal injuries resulting from a fall from the steps of a stairway onto a concrete floor in defendant's place of business in the City of Opelika, at which the public were invited to trade.
The complaint consisting of a single count, after averments of inducement showing that plaintiff was in said store as a customer--an invitee--raising a legal duty on the part of the defendant to maintain said stairway in a reasonably safe condition and that she fell therefrom and was injured, further avers, [Italics supplied.]
The defendant demurred to the count on the following grounds, the only grounds treated in the opinion of the Court of Appeals, that 'The facts alleged exact a higher duty of this defendant than that required by law. * * *
'No facts are alleged showing how or in what respect the absence of a handrail or post at the lower step or steps constitutes negligence. * * *
'The allegation that the defendant maintained said step or steps without a handrail does not show in and of itself that the defendant failed to exercise reasonable care to keep its premises in a reasonably safe condition. * * *
'The complaint fails to allege that the slippery stairs and absence of a handrail near the lower step or steps were a consequence of any negligence on the part of the defendant.' The trial court overruled the demurrer and the Court of Appeals on first consideration held that these grounds of the defendant's demurrer were well taken and reversed the judgment of the trial court for the error in overruling the same and adhered to this ruling in disposing of the application for rehearing.
The Court of Appeals was correct in holding that the effect of the judgment on demurrer entered by the circuit court was to deny the sufficiency of each and every ground of the demurrer and that if any one of them were good it was error to overrule the demurrer. A demurrer in pleading is a single entity and if it states a good ground it should be sustained. Guilford & Co. v. Kendall, 42 Ala. 651; Barrett v. Central Building & Loan Ass'n, 130 Ala. 294, 30 So. 347; McCreary v. Jones, 96 Ala. 592, 11 So. 600.
The gravamen of said count is that at the time the plaintiff fell and received her injuries the stairway or steps were 'negligently maintained in said store by defendant for the use of its customers in a dangerous condition, that is, with slippery treads and without a handrail or post at the lower step or steps thereof * * * and that all of her said injuries and damages were proximately caused by reason of the negligence of the defendant in failing to use due care to keep said premises reasonably safe for persons visiting the place by its invitation.'
The holding brought under review is: 'The complaint in this suit conjunctively specifies the acts constituting negligence in this case as being the maintenance of stairs [Italics supplied.]
There are two reasons why this holding was erroneous: (a). The grounds of demurrer do not specifically point out such defect. Code 1940, Tit. 7, § 236; Southern Indemnity Ass'n v. Hoffman, 16 Ala.App. 274, 77 So. 424; Allison v. Fuller-Smith & Co., 20 Ala.App. 216, 218, 101 So. 626. (b). The averments are conjunctive and when so construed if they neither show negligence as a matter of law nor suggest negligence as a matter of fact they are bad, but when construed conjunctively if they suggest negligence as an inference of fact, their sufficiency may be fully supplied by the averment that such acts were negligent. City Ice Delivery Co. v. Goode, 228 Ala. 648, 154 So. 775; Birmingham Ry. L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, 263; Pace v. Louisville & Nashville R. R. Co., 166 Ala. 519, 52 So. 52, 54; Birmingham Railway Light & Power Co. v. Gonzalez, 183 Ala. 273, 278, 61 So. 80.
It is not difficult to envision a stairway maintained with slippery treads without handrail would probably be more dangerous than one with slippery treads and handrail the first suggesting that it was not reasonably safe, while the latter would be.
In the case of City of Birmingham v. Wood, 240 Ala. 138, 141, 197 So. 885, 887, the court dealing with a similar situation in respect to an averment in the complaint observed:
'The point made is that the alleged 'defect or elevation or raised place' is not described with such particularity as to show that it is capable of not being reasonably safe for use by the public. We agree that the complaint must allege enough particulars to show that it may be thus reasonably unsafe as alleged. Mobile L. & R. R. Co. v. Therrell, 205 Ala. 553, 88 So. 677.
'Whether those particulars may support the allegation of the inference from them that the place was not reasonably safe is a question of law to be raised by demurrer. West v. Spratling, 204 Ala. 478, 479(4), 86 So. 32.
'Great particularity of detail is not necessary. It is sufficient to state enough detail to show that the location may be so defective as to be dangerous, and then to state that it was dangerous. 'Anything that may reasonably be expected to interfere with the safe use of a sidewalk by pedestrians is a defect.' City of Bessemer v. Whaley, 187 Ala. 525, 529, 65 So. 542, 543.
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