89 So. 850 | Ala. Ct. App. | 1921
Appellee brought suit to recover damages of the appellant for injuries received by her while in the store of appellant. The damages resulted by reason of the fact that "she fell, or was caused to fall, into or over, or step into and fall, a dangerous unguarded opening or depression in the floor of the store of appellant." There was a verdict for plaintiff, and defendant, in the court below, appeals.
The cause was tried upon counts 1 and 2 of the complaint as amended, and pleas 1, 11, and 12, demurrers having been sustained to the other pleas. The cause was tried upon the pleas of the general issue and contributory negligence.
The testimony showed that defendant was doing business as a grocery merchant in the city of Birmingham, being a lessee of the storehouse in which it was doing business. The testimony of the plaintiff, and her witnesses, was to the effect that, while the plaintiff was in the store of the defendant as a customer, she was injured by having stepped into a depression or sunken part of the floor; that she followed the clerk who was waiting upon her to the place where she was injured; that the store was poorly lighted, *87 and that she did not see the place in the floor; that her ankle was sprained, and that she suffered pain and anguish from the injury, and incurred expenses for doctor's bills and medicines by reason of the injury.
The testimony of the defendant was to the effect that the place in the floor was such as was used in stores of that kind, and that it could have been observed by ordinary observation, and, further, that such depression was not in the part of the store to which customers were invited or accustomed to go. The testimony of the plaintiff tended to show that she went to that part of the store by invitation; that is, that she called for an article she wanted to purchase, and followed the clerk to the place at which she was injured. Pretermitting the insistence of appellee that the appellant cannot, for the first time on appeal, question the filing of an amendment to the complaint that appears in the record, although such proposition appears to be sound (1 Ency. Digest Ala. Reports, p. 350, § 195), we do not think there is any merit in the contention of the appellant that the amendments to the complaint are not shown to have been properly filed. An examination of the entire record shows that the court and the parties treated the amendments as being properly filed, and that the case was tried upon the complaint as amended, and pleas 1, 11, and 12 of defendant. It would be extremely technical to hold that such amendments were not properly filed before the court, when, as stated, the record clearly shows that the case was tried upon the complaint as amended.
There was no error in overruling the demurrers to the complaint as amended. It was not subject to any of the grounds of demurrer interposed thereto. The averments of negligence in the complaint were sufficiently stated.
The demurrers to pleas 4, 5, 6, and 7 were properly sustained. These pleas attempted to set up the defense that the defendant was the lessee of the storehouse, and that the depression in the floor was a fixture in the storehouse, which under the terms of its lease this defendant could not remove. These pleas further attempt to justify the defendant, because the owner of the building would be liable to the person injured. It is true that the owner of a building, which is defectively constructed, would be liable to a person injured, still that would not exempt a person who conducts a business in said building. It may be stated as a general proposition of law that when a merchant opens his store for business he invites the public into his store, and the duty devolves upon him to furnish to the public a reasonably safe place in which to be while they are in his place of business, whether he owns the building or rents it. If there is a defect in the floor, it would be a monstrous proposition to hold that the merchant could invite the public into the place, and, when injury is suffered, shield himself behind his lease. It is his duty to provide a reasonably safe place. If the floor or other part of the building is defective, he should guard the public against injury by such defect.
There was no error in sustaining the demurrers to pleas 2, 3, 8, 9, 10, 13, and 14. It there had been error in sustaining the demurrers to these pleas, it would have been error without injury, because the defendant had the benefit of proving the facts set up in said pleas under pleas 1, 11, and 12, upon which the case was tried. The appellant seems to have recognized this fact because he has not insisted in his argument that the ruling upon said pleas was error, and, although assigned as error, it has been waived.
Many assignments of error are based upon the action of the court in admitting testimony as to the condition of the light in the store where the alleged injury occurred. The appellant argues that such evidence was an attempt to prove that the injury occurred on account of a defectively lighted store, and was a variance between the allegata and probata, because no damage was claimed in the complaint on account of its being defectively lighted. We do not think there is any merit in this contention of the appellant. Such evidence was admissible to refute the contributory negligence of the plaintiff charged in defendant's pleas 11 and 12. In plea 11, it is alleged, referring to the depression in the floor, "which was obvious and apparent to the plaintiff," and in plea 12, "and all of said depressions being obvious to persons using said premises." It was competent to offer testimony as to how the store was lighted, so that the jury could determine whether the place was "obvious and apparent" to the plaintiff. It was also competent to show that the place was negligently permitted to be in a dark part of the store.
Much stress in laid in argument of appellant upon the action of the court in overruling defendant's objection to the question asked the witness Hill. "The defendant is a corporation, is it, Mr. Hill?" Appellant argues that his was prejudicial to the defendant. While it is true that there would have been no error for the court to have sustained the objection, still, we are unable to see how the answer to the question could prejudice the defendant in any manner. The witness had answered that he was vice president of the Hill Grocery Company, which of itself would imply that it was a corporation. Then, too, the pleadings in the case showed that it was a corporation, and it was sued as such. There was no plea denying the existence of the corporation, and therefore it was admitted, and it was not necessary to make such proof, but no prejudicial error could be predicated upon the ruling *88 of the court in allowing proof of a fact admitted in the pleadings.
There was no error in refusing to give charge No. 2, requested by defendant. This charge was calculated to lead the jury to believe that it was necessary to show that the injury was done intentionally by defendant, when all that was necessary was to show that the injury occurred as the result of the negligence of the defendant.
Charge 8 was properly refused. The depression might have been a "standard device, performing a useful function in the ordinary and approved way," and yet might have been negligently permitted to be where it was located. Besides, this charge was fully covered in the oral charge of the court.
Charges 10, 11, and 12 were the affirmative charges, and were properly refused.
Charge 13 was in effect the affirmative charge, and was properly refused.
Charge 14 was also properly refused. The fact that no person had been hurt at this place before was not evidence to show want of care on part of defendant, or that defendant was not guilty of negligence.
Charges 16 and 19 were properly refused. As stated above, the evidence of the lighting of the place was proper to be considered by the jury.
Charge 17 was properly refused. The condition of the floor was proper to be considered by the jury in determining whether plaintiff was guilty of contributory negligence.
Charge 24 is unintelligible, and was properly refused.
We have not deemed it necessary to extend this opinion to undue length by discussing each assignment of error separately — 66 in all. We have treated the general principles applicable to the case. We have examined the record carefully, the able and explicit oral charge of the court, the charges given at the request of defendant, and it is our opinion that the defendant's case was clearly and fairly tried.
We find no error in the record, and the judgment of the circuit court is affirmed.
Affirmed.
