Pettit v. Stiles Hotel Co.
| Decision Date | 11 February 1958 |
| Docket Number | Nos. 36992,No. 1,36993,s. 36992,1 |
| Citation | 102 S.E.2d 693,97 Ga.App. 137 |
| Parties | W. D. PETTIT v. STILES HOTEL COMPANY, Inc. STILES HOTEL COMPANY, Inc. v. Annell V. PETTIT |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Before 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 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.
Mrs. Annell V. Pettit, in case No. 36993, filed an action against Stiles Hotel Company, Inc. in which she sought to recover for injuries sustained when she fell down certain stairs in the Georgian Hotel, which hotel was owned and operated by the defendant corporation. In case No. 36992 W. D. Pettit, the husband of the plaintiff in the first case, sought to recover his damages arising out of the same incident. The cases were tried separately. In the wife's case a mistrial was declared when the jury was unable to arrive at a verdict, and in the husband's case the jury's verdict for the defendant was made the judgment of the trial court. A motion for new trial on the usual general grounds was filed in the husband's case and after being amended was denied, and it is to this judgment that he excepts. In the wife's case, there having been a motion for a directed verdict denied at the close of the evidence, which motion was made by the defendant corporation, the defendant corporation filed a motion for a judgment notwithstanding the mistrial which was denied, and it is to this judgment that the defendant corporation excepts.
Hawkins & Hawkins, Larry V. McLeod, Gardner & Gayner, Athens, for W. D. Pettit and another.
Erwin, Nix, Birchmore & Epting, Athens, for Stiles Hotel Co., Inc.
1. The defendant in error, in the writ of error filed by the corporation to the denial of its motion for a judgment notwithstanding the mistrial, filed a motion to dismiss based upon the ground that an exception to a judgment denying a motion for judgment notwithstanding the mistrial will not lie until the final bill of exceptions in the case.
Code, § 6-701 as amended by the Act of 1957 (Ga.L.1957, pp. 224, 229), provides in part: 'No cause shall be carried to the Supreme Court or Court of Appeals upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto * * *.'
Had the judgment complained of (the denial of the motion for judgment notwithstanding the mistrial) been rendered as claimed by the plaintiff in error it would have been a final disposition of the wife's case. Accordingly, the motion to dismiss the writ of error is without merit and must be denied. See Tingle v. Kelly, 94 Ga.App. 138, 93 S.E.2d 773.
2. The evidence on both trials was very similar with the same witnesses, in most instances, testifying to the same facts concerning the fall of Mrs. Pettit and the condition of the stairs on which she fell. Therefore, if the evidence demanded a finding for the defendant corporation in the case wherein it made a motion for a judgment notwithstanding the mistrial (the wife's case), the evidence also demanded the finding of the jury in the husband's case, and even if error should be shown by the special grounds of the motion for new trial such error would be harmless.
The records do not disclose that general demurrers were filed to the petitions, therefore the evidence adduced on the trials will alone be looked to in order to determine if the plaintiffs were entitled to verdicts or whether, on the contrary, a finding for the defendant was demanded by the evidence on the issues in controversy.
It was undisputed that Mrs....
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