Opinion
36404.
DECIDED OCTOBER 23, 1956.
Tort; injuries to invitee. Before Judge Tye. Fulton Superior Court. July 25, 1956.
Harris Gower, Ida Mae Hendricks, for plaintiff in error.
C. E. Jackson, Jr., William P. Tapp, Charles H. Beall, contra.
1. The filing of an amendment which has no prayer that it be made a part of the petition does not of itself make such amendment a part of the record, but where the amendment was tendered and an order passed directing that it be filed subject to the right of the defendant to demur, the defendant did renew his demurrers, and the judge overruled the demurrers to the petition as amended, the amendment will be treated as having been formally allowed. Newill v. Atlanta Gas-Light Co., 48 Ga. App. 226 ( 172 S.E. 232).
2. Under the holdings in Mason v. Frankel, 49 Ga. App. 145 (2) ( 174 S.E. 546), and King Hdw. Co. v. Teplis, 91 Ga. App. 13 ( 84 S.E.2d 686), the general demurrer was properly overruled by the judge of the superior court.
3. The special demurrers are without merit.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
DECIDED OCTOBER 23, 1956.
This is a negligence case. The allegations of the petition necessary to a clear understanding of the case were: "On September 20, 1954, at about 6 o'clock p. m., petitioner entered a retail store owned and operated by defendant . . . for the purpose of purchasing a sack of cow feed from the defendant. Petitioner had unexpectedly stopped by said store after having washed his truck and by reason of this fact petitioner was without his shoes as he entered defendant's store. The feed he wanted was back in the store, and it was necessary for your petitioner to walk into said store by an aisle provided for members of the public to use in passing between merchandise counters located in the store upon which wares for sale to the public are kept and displayed. As your petitioner had just entered the aisle, which runs from the front of said store towards the rear thereof, which aisle is located immediately in front of the front door of said store, he suddenly struck the underside of his left foot on a long, sharp, jagged splinter of wooden flooring and drove said splinter into his foot for a distance of approximately 4 to 5 inches. Said splinter formed a part of the wooden planking used as flooring and, due to the lack of upkeep and maintenance on said flooring, said splinter protruded above the normal floor level. At the time he walked along said aisle and drove said splinter into his foot, petitioner's attention was diverted by the wares displayed on counters adjacent to said aisle, as aforesaid, so that he did not observe said splinter until it had been driven into his foot. The splinter which was driven into your petitioner's foot was located at floor level. The floor of said aisle was dark and poorly lighted, and the splinter, being only 4 to 5 inches in length, had little bulk and substance."
The defendant filed a general demurrer to the petition, and upon the same being overruled excepted and brought the case here for review.