Opinion
38201, 38202.
DECIDED APRIL 20, 1960. REHEARING DENIED MAY 9, 1960.
Action for damages. Fulton Superior Court. Before Judge Tanksley. December 16, 1959.
Smith, Swift, Currie McGhee, Charles L. Weltner, for plaintiff in error.
Robert L. Mitchell, contra.
1. The court did not err in overruling the general demurrer and the motion to dismiss the petition.
2. Since the order of the superior court is not final as to any of the rulings assigned as error by the defendant in error, the cross-bill of exceptions must be dismissed.
DECIDED APRIL 20, 1960 — REHEARING DENIED MAY 9, 1960.
H. E. Denmon filed his petition in Fulton Superior Court against Rich's, Inc., seeking to recover damages sustained in a fall in the defendant's store. The petition contained two counts, each of which alleged in substance that the plaintiff was an invitee on the defendant's premises; that he entered the defendant's basement and walked up a corridor for about 100 feet when his right foot suddenly rolled on a round multicolored marble on the floor, throwing him off balance and causing him to fall and suffer certain described injuries. Paragraph 8 of each count alleged: "Plaintiff shows that he did not see said marble because of its small size and multicolored design, which blended in with the floorway at said point and because his attention was distracted at the time he stepped upon said marble and fell, by the goods, wares, and merchandise upon display on the tables lining the corridor." Paragraph 10 of count two, as amended, alleged: "Plaintiff shows that defendant had actual knowledge that marbles were scattered around the floorway of the boys' department of its basement, the existence of said condition having been reported to one of the defendant's female clerks by Melvin R. Brooks, one of its customers, at about 11 o'clock, a. m., on December 28, 1957, when said customer picked up two marbles from the floorway in said department about 25 feet from the point at which plaintiff was injured, and delivered the marbles to said employee, stating to her that they had been found upon the floor of the subject basement area. The female employee referred to in this paragraph is unknown to plaintiff by name, but was in fact an employee of defendant, working in the boys' department of the basement area of defendant's emporium on December 28, 1957." Each count further alleged certain specifications of negligence on the part of the defendant which are not material here. The defendant filed general and numerous special demurrers to the petition as amended. On May 25, 1959, the court passed an order which provided in the pertinent portion: "2. Grounds four, six, seven and eight of the renewed demurrer filed April 10, 1959, to the petition as amended and ground two and ground nineteen of the original demurrers to the petition as renewed to the amended petition are hereby sustained, and count one of the plaintiff's petition as amended is hereby dismissed. All other demurrers, both original and renewed, to count one and the paragraphs thereof are not ruled upon individually as said count one is dismissed as herein provided. 3. Grounds nine, ten, eleven and twelve of the renewed demurrers filed April 10, 1959, to paragraphs 13, 15, 16 and 17 of count two as amended are sustained, and said paragraphs are hereby stricken from count two of the said petition as amended. The plaintiff is allowed twenty (20) days to further amend count two as amended to properly allege the matter refered to in these stricken paragraphs of count two." The correctness of this order was appealed on various grounds by both parties, and this court held that the main bill of exceptions was premature and dismissed both it and the cross-bill. Rich's, Inc. v. Denmon, 100 Ga. App. 694 ( 112 S.E.2d 234). Thereafter, the superior court passed another order on December 16, 1959, which stated in the pertinent portion: "1. That count one of the said petition stands dismissed as provided in the May 25, 1959 order of this court . . . 3. That paragraphs 13, 15, 16 and 17 of count two of the plaintiff's petition as amended not having been further amended, as provided in the order of May 25, 1959, the said paragraphs are stricken from count two of the plaintiff's petition. 4. The defendant's oral motion to dismiss the plaintiff's petition is overruled as to count two of the plaintiff's petition." In the main bill of exceptions the defendant assigns error on the overruling of its motion to dismiss and its general demurrers to count two. By cross-bill of exceptions, the plaintiff assigns error on the court's order of December 16, 1959, "and says that the court erred in dismissing count one of plaintiff's complaint, in sustaining defendant's demurrers to paragraphs 13, 15, 16 and 17 of count two of plaintiff's complaint, and in striking said paragraphs pursuant to the sustaining of said demurrers."
1. The order overruling the defendant's oral motion to dismiss the plaintiff's amended petition does not disclose the grounds of said motion, which must therefore be treated as an oral motion to dismiss in the nature of a general demurrer. Farmers Merchants Bank v. Gibson, 211 Ga. 270 (1) ( 85 S.E.2d 513). We will accordingly consider it in connection with the overruling of the defendant's general demurrer to count two.
In support of its general demurrer to count two of the amended petition, the defendant contends that the petition shows on its face that the plaintiff failed to exercise due care for his own safety. In view of the allegations of paragraph 8 that the marble upon which the plaintiff slipped was of small size and multicolored design which blended with the floorway and that his attention was distracted by the defendant's displays of merchandise, the question whether the plaintiff exercised ordinary care for his own safety under the circumstances alleged should be left for determination by the jury. Stanfield v. Forrest Five c. Stores, 95 Ga. App. 739 ( 99 S.E.2d 167) and cit.
It is further argued that count two is subject to general demurrer because notice of the existence of the marble does not properly appear in the petition. Paragraph 10, as amended, alleges that a named customer reported to one of the defendant's female employees, whose name was unknown to plaintiff, that there were marbles on the floor in the subject department. Such averment of actual notice to the defendant of the alleged dangerous condition is sufficient as against a general demurrer. It is not ambiguous nor subject to any of the constructions for which the defendant contends. Other alleged defects in this pleading are subjects of special demurrer only. The court did not err in overruling the general demurrer and the motion to dismiss the petition.
2. Turning now to the cross-bill of exceptions, we must first determine whether the order excepted to therein is a final order which is subject to review. The only order to which exception is taken is that of December 16 which makes no ruling on the defendant's demurrers but simply states that count one "stands dismissed" as provided in the order of May 25. The order of May 25 was not necessarily adjudicated as premature in regard to count one by the prior decision of this court ( Rich's, Inc. v. Denmon, 100 Ga. App. 694, supra), since reference to the record in that case reveals that the cross-bill of exceptions was not tendered within 30 days after the order and the prematurity of the main bill would therefore divest this court of jurisdiction over the cross-bill. Gaulding v. Gaulding, 209 Ga. 456 (3) ( 74 S.E.2d 9). However, if the order of May 25 was itself a final order as to count one, it was not excepted to within the time allowed by law, and the defendant in error's exception to the order of December 16th is nugatory. On the other hand, if the order of May 25 was not a final order as to count one, then something more than the language of the December 16 order is required to render it final and reviewable. Mere reference in a subsequent order to the terms of a prior non-final order will not suffice to import finality to either.
Accordingly, there is no exception to any final order sustaining the defendant's demurrers and dismissing count one of the petition. By the same token, the order of December 16 makes no ruling on the defendant's special demurrers to paragraphs 13, 15, 16 and 17 of count two of the petition, but simply states that these paragraphs, not having been amended as provided in the order of May 25, are stricken. Since the order of May 25 sustaining the demurrers with leave to amend was adjudicated as non-final by the prior decision of this court, the demurrers complained of have never been finally ruled on and their merits will not be considered here. Since the order of December 16 is not final as to any of the rulings assigned as error by the defendant in error, the cross-bill of exceptions must be dismissed. Virginia Well c. Co. v. Landers, 99 Ga. App. 397 (2) ( 108 S.E.2d 756).
Judgment affirmed on the main bill of exceptions. Cross-bill dismissed. Nichols and Bell, JJ., concur.