Setzers Super Stores of Ga., Inc. v. Higgins

• Court: Georgia Court of Appeals
• Writing for the Court: EBERHARDT; CARLISLE, P. J., and NICHOLS; EBERHARDT
• Citation: Setzers Super Stores of Ga., Inc. v. Higgins, 121 S.E.2d 305, 104 Ga.App. 116 (Ga. App. 1961)
• Decision Date: 09 June 1961
• Docket Number: No. 38878,No. 3,38878,3
• Parties: SETZERS SUPER STORES OF GEORGIA, INC. v. Mrs. Winnie HIGGINS

Page 305

121 S.E.2d 305

104 Ga.App. 116

SETZERS SUPER STORES OF GEORGIA, INC. v. Mrs. Winnie HIGGINS.

No. 38878.

Court of Appeals of Georgia, Division No. 3.

June 9, 1961.

Rehearing Denied July 7, 1961.

Syllabus by the Court.

1. Where a petition alleges that the defendant, its servants, agents or employees knew, or in the exercise of ordinary care should have known, of the presence on the floor of defendant's super market of loose rice which caused plaintiff to slip and fall to the floor and be injured, the allegations, being in the alternative, charge no more than constructive knowledge, and plaintiff must, when called upon by demurrer so to do, allege the length of time the rice had been on the floor before she slipped thereon and fell, or must allege facts and circumstances sufficient to make a question for the jury to determine as to whether the rice had been on the floor a sufficient length of time to impute knowledge to the defendant.

2. It is a question for the jury to determine as to whether the plaintiff was in the exercise of ordinary care for her own safety under allegations in the petition that plaintiff went to defendant's store to purchase items of food, including a jar of mayonnaise which she knew, from previous experience in making purchases there, to have been located around the corner from the aisle that she was in, and upon a high shelf, and that as she rounded the corner for obtaining the mayonnaise, looking in the direction thereof on the shelf, she stepped upon grains of loose rice on the floor, slipped and fell, together with further allegations that the color of the floor was such that it blended with the rice so that plaintiff could not have, in the exercise of ordinary care and diligence, discovered its presence on the floor.

3. The provisions of Code § 38-2108, as amended by the Act of 1959 (Ga.L.1959, p. 437), are to be liberally construed in favor of supplying a party with the facts underlying his opponent's case, and without reference to whether the facts sought on discovery would be admissible on the trial. However, such provisions do not require the disclosure of privileged matters, or of the 'work product' of a lawyer in the absence of a showing of necessity therefor. A party himself may be required, on proper interrogatories, to disclose the names of his witnesses, or of all persons whom he may know to have knowledge concerning the event of the litigation, and the substance of what he may have learned from them as to their knowledge of the matter; but his counsel will not ordinarily be required to disclose written statements that he may have taken from witnesses, or to disclose what facts he may have obtained in his interviews with them, those matters being a part of his 'work product.' Having obtained the names, addresses and other obtainable information concerning those who may be witnesses or who may have pertinent information, details thereof may be properly obtained by taking their depositions.

Chris B. Conyers, Chas. L. Gowen, Brunswick, for plaintiff in error.

Geo. B. Cowart, V. E. Mitchell, Brunswick, for defendant in error.

EBERHARDT, Judge.

Mrs. Winnie Higgins filed in Glynn Superior Court an action for damages against Setzers Super Stores of Georgia, Inc. In her petition, as amended, she alleged that she went to the defendant's store about five o'clock in the afternoon on August 11, 1958, for the purpose of purchasing various items of food, including a jar of mayonnaise. She alleged that the defendant operated a self-service store, and that she obtained a cart in which to place the items of food and started down one of the aisles of the store, on each side of which food was displayed in shelving; that from previous experience in making purchases at the store she knew that defendant displayed the mayonnaise just around the corner from the aisle in which she was walking and on a high shelf, and that as she proceeded in turning the corner, looking in the direction that she knew the mayonnaise to be, she stepped upon grains of loose rice in the aisle, fell to the floor and was injured. She further alleged that the floor was of such color as to blend with the rice and that she could not, in the exercise of ordinary care for her own safety, have discovered its presence. It was alleged that the defendant, its servants, agents and employees knew and in the exercise of ordinary care should have known of the presence of the rice on the floor, but there were no allegations as to how long it had been there before she fell, nor were any facts or circumstances alleged that were calculated to put the defendant, its agents, servants or employees on notice of the existence of the rice on the floor at any time prior to her fall.

The defendant demurred generally to the petition, as amended, and specially to the allegations concerning its knowledge of the existence of the rice, by which it sought to have her set out the names of the agents, servants or employees who knew of its existence and how long they had known of it prior to plaintiff's fall. She amended, giving names of some employees in the store, but no other facts or circumstances as to how long they may have had such knowledge. The demurrers were renewed and overruled, and, on trial of the case, the jury returned a verdict for the plaintiff. Defendant filed a motion for judgment non obstante veredicto and for new trial which were overruled, and it now assigns error on all of the above rulings and judgments.

1. Since the petition alleges that defendant's manager, one Sherrod, 'and others of its agents, servants and employees whose names are unknown to petitioner but known to the defendant, knew of the presence of such loose rice on said floor, and he, they and it would have known of its presence by the use of ordinary care and diligence,' the allegations are in the alternative and equivocal and must be construed to allege no more than constructive notice to the defendant and its servants, agents or employees, and this is true although in another place in the petition the defendant, its servants, agents and employees were charged with actual knowledge of the existence of the loose rice on the floor, for, on demurrer, the pleading must be construed most strongly against the plaintiff. Baggett v. Edwards, 126 Ga. 463(1), 55 S.E. 250. Consequently, it was incumbent upon the plaintiff to set out how long the rice had been on the floor, or to allege other facts and circumstances sufficient to make it a question of fact as to whether knowledge of the existence of the loose rice on the floor would thus be imputed to the defendant, its servants, agents and employees for a length of time sufficient to have enabled it to remove the same. Cook v. Kroger Baking & Grocery Co., 65 Ga.App. 141, 15 S.E.2d 531; Jones v. West End Theatre Co., 94 Ga.App. 299, 94 S.E.2d 135. Since plaintiff did not amend to meet this ground of special demurrer, it was error to overrule it and likewise thereafter to overrule the general demurrer.

2. It was urged as a ground of general demurrer that the allegations of the petition showed on their face that plaintiff was not in the exercise of ordinary care for her own safety, for that it alleged that plaintiff, as she turned the corner to get the jar of mayonnaise just before falling, was not looking in the direction of or observing the floor and its condition, but was in fact looking away from it in the direction of the high shelf on which the mayonnaise was located. Since the defendant so arranged the merchandise in its store to attract its customers who were to serve themselves, and since it is also alleged that the color of the floor was such as to blend with the loose rice thereon and thereby rendered the rice undiscernable to one walking along the aisle, the allegations in this respect were sufficient to make it a question for the jury as to whether the plaintiff was in the exercise of ordinary care for her own safety. Rich's Inc. v. Denmon, 101 Ga.App. 600, 114 S.E.2d 462; Food Fair Stores, Setzer's of Georgia, Inc. v. Pound, 102 Ga.App. 32, 115 S.E.2d 645.

3. Defendant here propounded interrogatories to the plaintiff...