Wardlaw v. Executive Comm. Of Baptist Convention, 22810.

• Decision Date: 18 September 1933
• Docket Number: No. 22810.,22810.
• Citation: 170 S.E. 830,47 Ga.App. 595
• Parties: WARDLAW. v. EXECUTIVE COMMITTEE OF BAPTIST CONVENTION, etc.
• Court: Georgia Court of Appeals

47 Ga.App. 595

170 S.E. 830

WARDLAW.

v.EXECUTIVE COMMITTEE OF BAPTIST CONVENTION, etc.

No. 22810.

Court of Appeals of Georgia, Division No. 2.

Sept. 18, 1933.

Rehearing Denied Sept. 29, 1933.

Syllabus by Editorial Staff.

JENKINS, P. J., dissenting.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by Mrs. Paul Wardlaw against the Executive Committee of the Baptist Convention, etc. To review a judgment sustaining general and special demurrers to the petition, plaintiff brings error.

Reversed, with direction.

W. Frank Smith, Jr., of Atlanta, for plaintiff in error.

Haas & Gambrell and R. Emerson Gard-aer. all of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

PER CURIAM.

Plaintiff sued the defendant corporation, as owner and operator of a hospital, for physical injuries from a fall when entering a room in its building. The petition shows that the plaintiff entered the room upon the express invitation of the defendant's agent in charge of its "information bureau, " to give information for the treatment of a patient whom the plaintiff had just accompanied to the hospital. It further alleges that "the cause of her falling was that there was a step of approximately five inches downward, from the level of the hallway in which she had been standing, to the floor of the room which she was entering"; that she "did not see the step, nor did she have any reason to believe that there was such a step"; that the step "was a deceptive, hidden pitfall, which was not in plain vision of the plaintiff, and which she, acting with reasonable care, did not see"; that "there was no sign posted which would warn any person of such condition" that defendant thus "did not keep the premises in a safe condition and properly constructed"; and that the defendant's employee "said nothing or gave no warning sign to the plaintiff that there was such a step." The injury happened about 4 o'clock in the afternoon. The court sustained a general demurrer to the petition, as setting forth no cause of action, and special grounds of demurrer to the averments regarding the step-down as being a hidden, deceptive pitfall. To this judgment the plaintiff excepts. Held:

1. "When the owner or proprietor of premises by invitation, express or implied, induces or leads others to come upon his premises for a lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe for such use." Mandeville Mills v. Dale, 2 Ga. App. 607, 58 S. E. 1060; Civil Code 1910, § 4420.

2. Taking the allegations of the petition as true, it was not subject to general demurrer on the ground that no cause of action was set forth. Wynne v. Southern Bell Tel. & Teleg. Co., 159 Ga. 623, 126 S. E. 3SS; Moore v. Sears, Roebuck & Co., 42 Ga. App. 658, 157 S. E. 106; Bass v. Southern Enterprises, Inc., 32 Ga. App. 399, 123 S. E. 753. The court sustained both the general and special grounds of the demurrer and dismissed the petition. The petition was subject to the special grounds of demurrer urged. The proper judgment on a special demurrer going only to the meagerness of the allegations of a petition is not a judgment sustaining the demurrer and dismissing the petition, but a judgment requiring the pleader to amend and make his petition more certain in the particulars wherein he has been delinquent; and then, if he refuses or fails to amend, the action may be dismissed, if the delinquency relates to the entire case made out in the petition. Griffeth v. Wilmore, 46 Ga. App. 96 (1), 166 S. E. 673.

3. As the petition was not subject to general demurrer, the court below erred in sustaining the general and special demurrer and dismissing the petition. The judgment is reversed with leave to the plaintiff to amend to meet the special grounds of demurrer; otherwise, the judgment will be affirmed, and the petition dismissed.

Judgment reversed, with direction.

STEPHENS and SUTTON, JJ., concur.

JENKINS, P. J., while not present when this decision was announced, participated in the consideration of the case and dissents from the judgment.

JENKINS, Presiding Judge (dissenting).

"The mere fact that there is a slight difference between floor levels in different parts" of a business building "which the public are invited to enter does not in itself constitute negligence." 45 C. J. S66. Such a variation of level in buildings, amounting to only a few inches (4 to 6 as shown in adjudicated cases), constitutes a common method of construction, and does not of itself render it defective or negligent. Ware v. Evangelical Baptist, etc., Society, 1S1 Mass. 285, 63 N. E. 885; Al-bachten v. Golden Rule, 135 Minn. 381, 160 N. W. 1012; Haddon v. Snellenburg, 293 Pa. 333, 143 A. 8; Johnson v. Desmond (Sup.) 165 N. Y. S. 290 (3); Weller v. Consolidated Gas. Co., 198 N. Y. 98, 91 N. E. 286, 139 Am. St. Rep. 798; Viles v. Thun-borg, 164 Wash. 190, 2 P.(2d) 666; Watkins v. Piggly Wiggly Bird Co. (C. C. A.) 31 F.(2d) 889; Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794, L. R. A. 191SF, 137; Hoyt v. Woodbury, 200 Mass. 343, 86 N. E. 772, 22 L. R. A. (N. S.) 730.

While, as has been so often held as to be almost axiomatic in this state, questions of the plaintiff's and of the defendant's negligence and of the proximate cause of an injury are...