Southern Grocery Stores v. Greer

• Decision Date: 01 December 1942
• Docket Number: 29618.
• Citation: 23 S.E.2d 484,68 Ga.App. 583
• Parties: SOUTHERN GROCERY STORES, Inc., v. GREER.
• Court: Georgia Court of Appeals

23 S.E.2d 484

68 Ga.App. 583

SOUTHERN GROCERY STORES, Inc., v. GREER.

No. 29618.

Court of Appeals of Georgia, Division No. 1.

December 1, 1942

Rehearing Denied Dec. 15, 1942.

Syllabus by the Court.

This was a suit for damages brought by Greer against Southern Grocery Stores, Inc., alleging negligence in failing to keep the floor of a grocery store in a safe condition for its customers. The plaintiff, a customer, recovered a judgment. The defendant moved for a new trial which was overruled and it excepted.

The plaintiff testified that after purchasing a sack of meal and some other articles of groceries in the Rogers store, the sack of meal was placed in his arm and the other packages were placed thereon by a clerk, in such a manner that he could not see the floor immediately in front of his feet but could see it in front of him about ten feet ahead, and that while in the store on his way out he slipped and fell and sustained injuries. "That fall knocked me out for a few minutes; I don't know how long; but when I came to myself I was on the counter and they were bathing my face in water. The next thing I remember, after I came to and regained consciousness, I was sitting there on the counter but

I don't know just how long I had been sitting there on the counter and I began to kinder glance around to see what had made me fall or what I had slipped on. Some of them said it was a piece of fish, some said it was a banana peeling there near this piece of tin, and that was where I slipped there on that piece of tin. That piece of tin was slick and looked like it had been oiled. *** It was a piece of tin about a foot square. *** I noticed this floor in Rogers store that day after I fell and got hurt, and I saw a piece of tin on the floor and it was slick and had something like oil or grease on it, and there was a banana peeling there by it. The floor had been greased at that time. *** I noticed the oil on the floor after I fell."

The plaintiff's witness, Rawls, testified that he was manager of the store in question but left there in the first part of 1939 before the accident on July 1, 1940. "I had called the attention of the superintendant to the condition of the floor. Some one had fallen through the floor before this when I was there. I fixed the floor the best I could. The floor, there at this piece of tin, was real rotten. A fish box had been there and the piece of tin was placed there to do away with the rotten plank under the tin. I was familiar with the floor in every detail. It was in the same condition in 1940 as it was then. Other people had slipped on this piece of tin. I reported it to the officials of the defendant company. If I am not bad mistaken the same pieces of tin that were there was there to cover up this hole in the floor. It is not true that these pieces of tin were placed on the floor of the store when it was remodeled to cover up some auger holes that had been drilled in the floor to let the water drain out of the refrigerator box." The plaintiff's witness, Lester, testified: "I know the condition of the floor at that time. I know the condition of the floor of the Rogers Store on or about July 1st., 1940. It was in the same condition. There were two pieces of tin there on the floor. I had a near accident in that same store. I slipped on a piece of tin in that store. I don't remember the exact time but it was when Mr. Rawls was working there. I reported it to Mr. Rawls. That piece of tin was about that wide, that is, it was about twelve inches one way and about a yard the other way. It was a slick piece of tin. I don't know whether there was any grease on it or not, except what they said."

Defendant's witness, Kimbrell, testified that he succeeded Rawls as manager of the store and that under his management the floor was only oiled about twice a year, and that the last time it had been oiled before the accident was about six months before the accident. There was other testimony for the defendant that the tin was put over a hole in the floor where an old drain pipe had been from the fish box. There was not anything rotten or broken about the floor. "It was a firm plank. The tin was nailed down with shingle nails just as close to one another as was possible. There was no bulging whatever." No surfacing had been placed on the floor for six months previously. The floor was not slippery, it was just a plain store floor. It had been swept from time to time and walked over, but there was no grease or anything to make it slippery. There were two pieces of tin on the floor, one was two-by-five, and the other four inches square. There was not any oil or grease or any other foreign substance on those pieces of tin. Mrs. Sams testified that two or three days after the accident she was in the Rogers store and in a conversation with Mr. Harold she asked, "You remember how he fell?" and he answered, "Yes, he slipped on a banana peeling some kid had thrown down."'

Mr. Harold, the employee who waited on the defendant at the time of the injury, testified: "I do not remember any child being in the store eating a banana that day before this accident. I did not tell Mrs. Sams that a child had been in there eating a banana and they must have dropped it on the floor. What I said was, it was on the floor. I said I didn't know how it got there unless some child eating a banana dropped it on the floor."

Hirsch, Smith, Kilpatrick, Clay & Cody and E. D. Smith, Jr., all of Atlanta, and Lucien Goodrich, of Griffin, for plaintiff in error.

Harvey J. Kennedy and E. O. Dobbs, both of Barnesville, for defendant in error.

MacINTYRE Judge.

1. There is a motion to dismiss the writ of error. The bill of exceptions and the certificate of the judge, which constitute the writ of error, are regular on their faces in every respect as they appear in this court. The record shows on its face that the bill of exceptions was presented, certified, filed, and served in the manner and in the time provided by law. The certificate is dated March 20, 1942. This was within the time required by law for such certification. The filing of the bill of exceptions, as shown by the record transmitted to this court, was on March 20, 1942. The law requires the filing of the bill of exceptions within fifteen days from the date of certification. Code, § 6-1001. The service as shown by the record was March 21, 1942, which was within ten days after the bill of exceptions was signed and certified. Code, § 6-911.

The defendant in error moves to dismiss the writ of error on the ground that the service was too late under the rules of this court, and attaches to this motion an affidavit of the clerk of the superior court which in part states: "I was instructed [by the attorney for plaintiff in error] to write an entry of filing thereon [the bill of exceptions] on that date which was March 2, 1942. I accepted said paper and marked it filed, dating it March 20, 1942." This affidavit was dated March 6, 1942. Thereupon, at or before the time of the argument of this case in this court, the plaintiff in error filed an affidavit here dated March 9, 1942, in which the clerk of the superior court in part stated: "I understood that the bill of exceptions was filed in my office on March 20, 1942, as stated in my original certificate as Mr. Goodrich [attorney for plaintiff in error] had expressly instructed me not to file them until March 20, 1942, although he left them in my office on March 2, 1942. This being done, as I understood it, for my accommodation, in as much as I would probably be busy with court work for the next several days."

If the bill of exceptions was filed on March 2, 1942, the motion should be sustained; if it was filed March 20, 1942, it should be overruled. The act of the judge in signing the certificate which, with the bill of exceptions, constitutes the writ of error, stands on a different basis from the act of the clerk in filing or transmitting a paper from the superior court to this court. Cordray v. Savannah Union Station Co., 134 Ga. 865(2), 68 S.E. 697. The Supreme Court has held that when the judge has signed the certificate to a bill of exceptions he has exhausted his powers in that regard, and can not add a supplementary certificate explanatory of the first. Cordray v. Savannah Union Station Co., supra, (2a) and cit. This case does not fall within the exception to this rule provided in Code, § 6-810(1) which relates to "material evidence" omitted.

With reference to the act of the clerk in filing or transmitting papers to this court, "Generally, upon proper suggestion, made in due time, that the date of filing entered by the clerk upon the bill of exceptions was erroneous, the clerk will be ordered to certify to this court the correct date of filing. But his certificate cannot be traversed, or can extrinsic evidence be introduced to combat it." Cordray v. Savannah Union Station Co., supra. The second affidavit of the clerk was, in effect, the stating of additional facts which tended to show that the mental assent of both the clerk and the counsel for plaintiff in error which gave birth to the actual legal filing of the bill of exceptions, was that the bill of exceptions was filed on March 20, 1942. Evans & Pennington v. Nail, 7 Ga.App. 129, 66 S.E. 543. The last affidavit, or certificate if you wish to call it such, of the clerk reiterated the fact, in effect, that the bill of exceptions, as shown by the record transmitted by him to this court, was filed March 20, 1942, and in effect states that there was no error in the entry on the bill of exceptions as it now appears in this court, which states that it was filed on March 20, 1942. Under these circumstances this court will decline to grant the motion of the defendant in error to...