Opelika Montgomery Fair Co. v. Wright

• Decision Date: 18 April 1950
• Docket Number: 5 Div. 284
• Parties: OPELIKA MONTGOMERY FAIR CO., Inc. v. WRIGHT.
• Court: Alabama Court of Appeals

Page 404

52 So.2d 404

36 Ala.App. 1

OPELIKA MONTGOMERY FAIR CO., Inc. v. WRIGHT.

5 Div. 284.

Court of Appeals of Alabama.

April 18, 1950.

Rehearing Denied Aug. 8, 1950.

Further Rehearing Denied Oct. 31, 1950.

Sadler & Sadler, of Birmingham, and Brown & McMillan, of Opelika, for appellant.

Walker & Walker, and R. C. Smith, of Opelika, for appellee.

HARWOOD, Judge.

This is an appeal from a judgment entered pursuant to a verdict in favor of the plaintiff below, her damages being assessed at $750.00.

The complaint contained one count, and is as follows:

'1. The plaintiff, Mrs. Ada L. Wright, claims of the defendant, Opelika Montgomery Fair Co., Inc., the sum of Ten Thousand Dollars ($10,000.00) as damages, for that heretofore on to-wit, the 6th day of January 1949, the defendant occupied and was in possession of certain premises in Opelika, Alabama, known as the Opelika Montgomery Fair at the north corner of the intersection of Avenue B and South 8th Street, where it conducted or operated a public store to which the public generally was invited to come and trade or on other business; that the plaintiff was an invitee of the defendant, being there on the occasion complained of to transact business with the defendant, and while in said store and on said premises, where she was invited on the occasion aforesaid, she slipped or fell or was caused to slip or fall onto a concrete floor from a stairway or steps, which were then and there negligently maintained in said store by the defendant, for the use of its customers, in a dangerous condition, that is, with slippery treads thereon and without a hand rail or post at the lower step or steps thereof, and her right shoulder and shoulder blade were fractured, and her right arm was bruised and made sore; she suffered great mental and physical pain and anguish, and was permanently injured and incapacitated. The plaintiff alleges that all her said injuries and damages were proximately caused by reason of the negligence of the defendant in negligently failing to use due care to keep said premises reasonably safe for persons visiting the place by its invitation, express or implied; hence this suit.'

The defendant filed a demurrer to this complaint, supported by four grounds. This demurrer was later amended by adding some seventeen additional grounds.

The court entered a judgment on the pleadings ordering 'that said demurrer as amended be and hereby is overruled.' The defendant reserved an exception to this ruling.

Thereafter the pleading was in short by consent.

Appeal was perfected from the judgment in plaintiff's favor, above mentioned.

Appellant's first four assignments of error are as follows:

'1. The court erred in overruling ground number three of the defendant's demurrer, as follows:

'(3). The facts alleged exact a higher duty of this defendant than that required by law.

'2. The court erred in overruling Ground number (d) of the defendant's amended demurrer, as follows:

'(d) No facts are alleged showing how or in what respect the absence of a hand rail or post at the lower step or steps constitutes negligence.

'3. The court erred in overruling Ground number (f) of the defendant's amended demurrer as follows:

'(f) The allegation that the defendant maintained said step or steps without a hand rail does not show in and of itself that the defendant failed to exercise reasonable care to keep its premises in a reasonably safe condition.

'4. The court erred in overruling Ground number (i) of the defendant's amended demurrer, as follows:

'(i) The complaint fails to allege that the slippery stairs and absence of a hand rail near the lower step or steps were a consequence of any negligence on the part of the defendant.'

Appellee's able counsel strenuously contends that the assignments are nullities and present nothing for our review, in that the judgment on the pleadings overruled the demurrer as a whole, and the proper assignment would have been that the court erred in overruling the demurrer, rather than specific grounds thereof. Appellee cites in support of this contention Cahaba Coal Co. v. Elliott, 183 Ala. 298, at page 307, 62 So. 808; Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42; City of Gadsden v. Elrod, 250 Ala. 148, 33 So.2d 270.

The judgment overruling the demurrer in this case was general. Perforce it denied the validity of every ground assigned in support of the demurrer. The rule prevailing in this State is that where there are several grounds of demurrer, some of which are sufficient, and the judgment sustaining the demurrer is general, the ruling will be referred to the grounds that are well taken. National Park Bank v. Louisville & N. R. Co., 199 Ala. 192, 74 So. 69, and an assignment that the court erred in overruling the demurrer does not join all the grounds supporting the demurrer, but the sufficiency of the pleading to which the demurrer is addressed is to be tested by each ground separately. Cahaba Coal Co. v. Elliott, supra; Allison-Russell-Withington Co. v. Sommers, supra.

Where the demurrer is addressed to pleading containing multiple units, such as several counts in a complaint, then merely assigning overruling of the demurrer as error results in joining the units to test their sufficiency, and if any one is good an appellant can take nothing by such assignment.

In this case the complaint contained only one count. The demurrer filed thereto contained numerous grounds. The action of the court in overruling the demurrer in effect held each ground of the demurrer bad.

The suing out of an appeal is analogous to the institution of a new suit, the assignment of errors taking the place of the declaration or bill. The office of the assignment of error is to inform the appellate court of the error relied on. Snellings v. Jones, 33 Ala.App. 301, 33 So.2d 371. We think the assignments as made in this case adequately perform that function, and are therefore sufficient.

After the allegation that the plaintiff fell or slipped from a stairway or steps which were negligently maintained in the store in a dangerous condition, the complaint then particularizes the acts constituting the negligence as follows: 'that is, with slippery treads thereon and without a hand rail at the lower step or steps thereof.'

When a complaint specifies particular acts on which the action is founded as constituting negligence the complaint is demurrable unless such specified and described acts in themselves show or suggest negligence. Birmingham Ry., Light & Power Co. v. Barrett, 179 Ala. 274, 60 So. 262, 263; City Ice Delivery Co. v. Goode, 228 Ala. 648, 154 So. 775; City of Birmingham v. Whitfield, 29 Ala.App. 454, 197 So. 666.

The complaint conjunctively specifies the acts constituting negligence in this case as being the maintenance of stairs 'with slippery treads and without a hand rail at the lower step.' Both the acts or omissions must therefore in themselves show or suggest negligence.

The duty owed by a storekeeper to invitees is to use reasonable care to keep his premises in a reasonably safe condition for use by those who exercise reasonable care for their own safety. Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388; F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667.

It is vigorously argued in appellant's brief that neither the averment of slippery steps, nor the averment of the absence of a hand rail are sufficient against the demurrer. Since the averment is in the conjunctive the complaint is faulty if either of these conditions as stated are deficient in charging or suggesting negligence by the defendant in their maintenance.

In Wallimaa v. Maki et al., 163 Minn. 352, 204 N.W. 25, 41 A.L.R. 965, the plaintiff brought an action for damages resulting from his fall down a stairway leading from the street to a second floor, where the lobby of a hotel, in which plaintiff was a guest, was situated. There was no hand rail on either side of the walled stairway. In the lower court a verdict was directed for the defendants. This case was affirmed by the Supreme Court of Minnesota with the following observation:

'The books contain no case, at least counsel have found none, holding that negligence may be predicated upon the omission of handrails. Interior, walled stairways are probably made as frequently without as with hand rails. Such prudence as is exercised by ordinary man for the protection of his own folks so often omits them as to prevent judges and juries from branding that omission as actionable negligence.

'* * * One takes whatever risk attends his use of the thing with so simple, usual, and obvious an omission as that of a handrail.'

The Supreme Court of Pennsylvania, in Chapman v. Clothier, 274 Pa. 394, 118 A. 356, 357, in setting aside a verdict for the plaintiff and rendering one for the defendants non obstante veredicto, where the injury resulted from a fall caused by a depression in a marble step, with no hand rail, wrote:

'There was a hand rail around the opening at the top, but none down the side of the steps; as they were less than three feet high, no inference can be drawn that the absence thereof created an unsafe condition, while the only testimony on the question was to the contrary.'

In Dooley v. Economy Store, 109 Vt. 138, 194 A. 375, 377, the suit was predicated upon the alleged negligence of the defendant in failing to keep stairs and approaches in a reasonable state of repair, and in failing to maintain a railing either in the center of the stairway, or at either end. The stairs led from one part of a store to another, the second part being two or three feet lower.

In reversing a judgment for the plaintiff and rendering one for the defendant the court wrote, in connection with the absence of a railing:

'That the lack of a railing, standing alone, did not constitute actionable negligence, is clear, since the owner of premises is not liable to one who goes thereon as invitee...