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Lawskills.com Georgia Caselaw
CHAPMAN et al. v. PHILLIPS.
41247.
PANNELL, Judge.
Action for damages. Macon City Court. Before Judge Phillips.
1. A petition shall "plainly, fully and distinctly" set forth a cause of action (Code 81-101); and, "On general demurrer the allegations of the petition will be construed most strongly against the pleader, and allegations of matters vitally essential to set up a good cause of action will not be implied from the pleading, but must be distinctly made therein." Evans v. Dickey, 50 Ga. App. 127 (1) (177 SE 87). Gilbert Hotel No. 4, Inc. v. Jones, 72 Ga. App. 819 (35 SE2d 304); Miller v. Quaker Savings Assn., 53 Ga. App. 703, 705 (186 SE 885); Crosby v. Calaway, 65 Ga. App. 266, 270 (16 SE2d 155); Ewing v. Paulk, 208 Ga. 722 (3) (69 SE2d 268); Winder v. Winder, 218 Ga. 409, 413 (128 SE2d 56).
2. "Whatever may be the rule in other jurisdictions, it is the law of this State that the maxim res ipsa loquitur has no application to pleadings, . . . 'it is only a rule of evidence. Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (4) (50 SE 974), and cases there cited; Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (63 SE 244); Sinkovitz v. Peters Land Co., 5 Ga. App. 788 (2), 794 (64 SE 93)." Fulton Ice &c. Co. v. Pece, 29 Ga. App. 507 (6) (116 SE 57). And defective pleadings cannot be aided by the maxim res ipsa loquitur. Weems v. Albert Pick & Co., 33 Ga. App. 579 (1c, 1d) (127 SE 819).
4. "In order for an act of negligence to give rise to a cause of action, it must be such that a person of ordinary caution and prudence should have foreseen or anticipated that some injury would likely result therefrom. Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 SE 443); Southern R. Co. v. Webb, 116 Ga. 152 (42 SE 395, 59 LRA 199); Western & A. R. Co. v. Bryant, 123 Ga. 77 (51 SE 20); Gillespie v. Andrews, 27 Ga. App. 509 (108 SE 906)." Hulsey v. Hightower, 44 Ga. App. 455, 459-460 (161 SE 664). It is apparent, under this rule, that one is not guilty of negligence unless he knew, or in the exercise of ordinary care should have known not only that a condition existed, but comprehended danger therefrom, for without knowledge or comprehension of danger arising from a known condition there could be no anticipation that injury would likely result therefrom. See Scott v. Rich's, Inc., 47 Ga. App. 548, 551 (171 SE 201); Burns v. Great A. & P. Tea Co., 105 Ga. App. 823 (125 SE2d 687). It follows that comprehension of danger is an essential element to sustain a cause of action based upon negligence.
5. Upon application of the above principles to the facts of the present case, where a petition, seeking damages against the owner of property for injuries received when the plaintiff invitee slipped and fell because of water on a waxed floor, alleges constructive knowledge on the part of the owner that water was standing on the waxed floor and alleges further that this created an extremely slippery floor and was an imminently dangerous condition; but, does not specifically allege that the owner had knowledge, actual or constructive, that this created an extremely slippery floor and was an imminently dangerous condition, nor contain any other allegation to show such knowledge on the part of the owner, such allegations are insufficient to demand a conclusion that the owner had knowledge of the dangerous or slippery condition of the floor, and the petition was therefore subject to the general demurrer interposed thereto and the trial court erred in overruling the same. Whether the petition, for other reasons, may fail to set forth a cause of action we do not decide.
Frank G. Wilson, W. H. Vandiver, contra.
Martin, Snow, Grant & Napier, Hendley V. Napier, for plaintiffs in error.
ARGUED APRIL 6, 1965 -- DECIDED OCTOBER 7, 1965.
Friday May 22 20:49 EDT


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