Opinion
43662.
SUBMITTED MAY 8, 1968.
DECIDED JUNE 7, 1968. REHEARING DENIED JUNE 25, 1968.
Action for damages. Gordon Superior Court. Before Judge Davis.
Robert Edward Surles, for appellant.
Chance, Maddox Collins, R. F. Chance, for appellee.
1. The ruling of the trial judge on the pleadings is controlled by the Civil Practice Act, and he did not err in overruling the defendant's general and special demurrers to the petition and a motion to strike.
2. The instructions on which error is asserted do not convey the meaning, contrary to law, that a merchant is an insurer of his customer's safety.
3. The verdict for the plaintiff is authorized by the evidence, and the trial judge did not err in refusing to direct a verdict or grant judgment n.o.v., and in refusing, in the alternative, to grant a new trial.
SUBMITTED MAY 8, 1968 — DECIDED JUNE 7, 1968 — REHEARING DENIED JUNE 25, 1968 — CERT. APPLIED FOR.
The petition shows that the defendant is the owner and operator of a grocery store in a building facing west on a public highway, and that immediately north of the building he provides paved off-street parking facilities for his customers. Outside the northern edge of the building there is an elevated area, of asphalt mix construction, described in the petition as a "private walkway" commencing some 15 or 20 feet from the public sidewalk, and leading to the sidewalk. The walkway is some 8 or 10 inches higher that the sidewalk and is connected to the sidewalk by a declining ramp of some 30 or 40 degrees. On February 17, 1967, it had been raining and the walkway and ramp were wet. The plaintiff, Mrs. Champion, in going from the parking area to trade at the store, slipped and fell on the ramp, sustaining personal injuries. She alleged that she was unaware of the condition and that the defendant, Banks, knew of the condition, or should have known of it in the exercise of ordinary care, that he was negligent in providing the walkway and ramp without a covering of abrasive material, or a covering of sufficient abrasive material, to prevent a slippery and dangerous condition during rainy weather and when wet, in failing to provide a handrail, in failing to make his premises safe for an invitee, and in failing to provide signs or give any warning of the condition. On December 4, 1967, the trial judge overruled general and special demurrers and a motion to strike a part of the petition, the case proceeded to trial before a jury, and the jury found for the plaintiff for $4,000. The defendant appeals from the order overruling a motion for judgment n.o.v. and an alternative motion for new trial, asserting error on this order and antecedent rulings.
1. The fifth enumeration is directed to the order of the trial court overruling the defendant's general and special demurrers and a motion to strike.
The action was commenced before the effective date of the Civil Practice Act, but the new procedure under the Act automatically applied at the time of the court's ruling, absent an affirmative determination by the trial court that in his opinion it would not be feasible or work injustice. Section 86 of the Act (Ga. L. 1966, pp. 609, 671; 1967, p. 8; 1967, pp. 226, 250; Code Ann. § 81A-186). The record is silent as to any such determination. The petition drafted in accordance with the former procedure, amply meets the requirements of the new procedure to state a claim based on negligence on which relief may be granted, if sustained by proof, and the issues raised by the demurrers and the motion to strike, if treated as motions for appropriate relief under the new procedure, are without merit, regardless of any merit under the former procedure. The statements which the defendant sought to have stricken as conclusions of the pleader respecting her failure to discover the dangerous condition of the ramp, would not, if deleted, eliminate her claim for damages based on the negligence of the defendant, and "numerous decisions under the federal rules affording the basis for the new procedure in this State are to the effect that a complaint should not be dismissed unless it affirmatively appears that the plaintiff could not possibly be entitled to relief under any statement of facts which could be proved in support of the allegations." Seaboard A.L.R. Co. v. Hawkins, 117 Ga. App. 797, 798 ( 161 S.E.2d 886). "A judgment right for any reason will be affirmed by the appellate courts." Hill v. Willis, 224 Ga. 263, 267 ( 161 S.E.2d 281).
Accordingly, the trial judge did not err in his ruling on the pleadings in this case.
2. The third and fourth enumerations, identical to two special grounds of the alternative motion for new trial, refer to excerpts from the court's instructions regarding the duty of the defendant to maintain safe premises for a business invitee, which the defendant insists conveyed a meaning to the jury, contrary to law, that a merchant is an insurer of his customer's safety. These excerpts include a statement that "the invitation covers the right as invitees to be protected upon portions of premises necessary for ingress and egress and upon parts necessary or incidental to mutual business or purposes of invitation," and that the plaintiff, if found to be "a business visitor, is entitled to expect that Herman Banks, as the owner, will take, reasonable care to discover the actual condition of the property, and either make it safe or warn her of its dangerous conditions."
While we do not regard these instructions, without more, as subject to the meaning asserted by the defendant, the court had eliminated any doubt by his earlier instructions that "A merchant is not an insurer of the safety of his customers and is required by law only to exercise ordinary care to avoid injury to them. The defendant would not be liable simply because the plaintiff happened to slip on the parking area, unless the defendant was negligent in causing the condition which made the surface more slippery than those ordinarily maintained by reasonably prudent owners and occupiers of property for their invitees. A person is not bound to foresee and guard against casualties which are not reasonably to be expected, which would not occur under exceptional circumstances or would result from an unexpected act of the person injured."
No error is shown by the instructions for any reason argued and insisted upon.
3. The remaining enumerations relate to the sufficiency of the evidence in refusing to direct a verdict for the defendant, in overruling the motion for judgment n.o.v., and in overruling the alternative motion for new trial on the general grounds.
Irrespective of whether the elevated area of the parking lot next to the building was a walkway, as asserted by the plaintiff, or merely an elevation to prevent parking directly against the building and damage to a plate glass window, as asserted by the defendant, it is clear from the evidence that customers did use the elevated area and the ramp as a walkway in going to and from the store, and that some six months previously the defendant had caused a tar and gravel covering to be placed on the ramp in an attempt to alleviate its slippery condition. Considering the evidence as a whole, there is an ample basis for the jury to determine that the defendant, in the exercise of ordinary care knew or had cause to know that the ramp would be slippery when wet and likely to produce injury to a customer using it, and failed to warn of its condition or prevent its use, and that the plaintiff, although one of his regular customers, did not know or would not discover its dangerous condition in the exercise of ordinary care, and that she was not guilty of failing to exercise care for her own safety such as would bar recovery. Under the evidence in this case the questions of negligence of the plaintiff and the defendant and proximate cause were for jury determination, and the evidence authorized, but did not demand a verdict, for either party.
The trial judge did not err in refusing to direct a verdict or grant judgment n.o.v., and in refusing, in the alternative, to grant a new trial. See Scoggins v. Campbellton Plaza Corp., 114 Ga. App. 23 ( 150 S.E.2d 179); Chotas v. J. P. Allen Co., 113 Ga. App. 731 ( 149 S.E.2d 527).
Judgment affirmed. Pannell and Deen, JJ., concur.