Ward v. Veterans of Foreign Wars, Post 2588
| Decision Date | 08 April 1964 |
| Docket Number | No. 1,No. 40609,40609,1 |
| Citation | 109 Ga.App. 563,136 S.E.2d 481 |
| Parties | Irene WARD v. VETERANS OF FOREIGN WARS, POST 2588 |
| Court | Georgia Court of Appeals |
Mrs. Irene Ward was injured by slipping on a spot on which liquid had been spilled in a walkway between her table and dancing area of a dimly lighted dance hall. She was an invitee and had paid $1.25 entrance fee.
Plaintiff's petition alleged as to pertinent portions as follows: That at the spot where she fell, defendant, acting by and through its agents, servants and employees, whose names are unknown to plaintiff but well known to defendant, had permitted liquid to be spilled and remain on the floor which rendered said floor slick, slippery and dangerous to those walking thereon, including plaintiff, and which liquid prevented her shoes from making traction on the floor; that defendant knew, or by the exercise of ordinary care and diligence for the safety of its guests, including plaintiff, should have known that numerous members and guests were accustomed to walk on its floor in dancing as well as going to and from the immediate dancing area, and the existence of liquid on said floor rendered the same extremely dangerous to walk upon where said liquid had so spilled. Plaintiff adds Paragraph 13A and alleges that the defendant knew or should have known, by and through its employees, with the exercise of due diligence and care for the safety of its guests, of the existence of liquid on said floor.
To this petition as amended defendant filed general and special demurrers. The court below sustained these demurrers and to this ruling plaintiff excepted, and this ruling is now before this court for review.
Ronald F. Adams, William A. Davis, Jr., W. M. Henderson, Brunswick, for plaintiff in error.
Conyers, Fendig, Dickey & Harris, Reid W. Harris, Brunswick, for defendant in error.
Syllabus Opinion by the Court
1. The owner or occupier of premises owes the duty to invitees to exercise ordinary care in keeping premises safe for their use. Code § 105-401. Such owner or occupier of land is liable for failure to warn his invitees of danger or defects in such premises or instrumentalities, of which he knew or of which it was his duty to know in the exercise of ordinary care. Tybee Amusement Co. v. Odum, 51 Ga.App. 1 (1a), 179 S.E. 415.
2. The allegation in paragraph 10 of the petition alleging that 'the defendant, acting by and through its agents, servants and employees * * * had permitted liquid to be spilled and remain on the floor,' is not sufficient in our opinion to allege actual knowledge, particularly when construed with the allegation of paragraph 13 which alleges that 'the defendant knew, or by the exercise of ordinary care and diligence * * * should have known * * * that the existence of liquid on said floor rendered the same extremely dangerous to walk upon,' and in view of the amendment to the petition adding a paragraph 13A and alleging that 'the defendant knew or should have known, by and through its employees, with the exercise of due diligence and care for the safety of its guests, of the existence of said liquid on said floor.' Setzers Super Stores v. Higgins, 104 Ga.App. 116, 118, 121 S.E.2d 305. Cf. Citizens & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 434, 437(8), 122 S.E. 327. The allegations of the petition as a whole when construed against the pleader, allege constructive knowledge only. See Baggett v. Edwards, 126 Ga. 463(1), 55 S.E. 250, in which the court stated: 'Where pleadings do not make distinct and positive allegations, but are ambiguous or couched in alternate expressions, on demurrer they will be given that construction which is most unfavorable to the pleader.'
3. The allegations in the petition do not set out facts from which an inference of constructive knowledge can be drawn from the length of time the liquid was permitted to remain on the floor, for no time is set out. Nor are...
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