Wilkinson v. Rich's Inc. ( 1948 )

1. On demurrer the allegations of the petition are to be construed most strongly against the pleader. Mere conclusions must yield to inferences authorized by the allegations of fact.

2. Where, as here, the basic theory of a tort action is the breach of an implied warranty that the articles sold were suitable for the use for which they were intended — to be used in the home, and the defects of the article are alleged to be patent and not latent, and therefore discoverable by the plaintiff, no recovery can be had.

DECIDED JUNE 1, 1948. Mrs. Grace J. Wilkinson filed a petition for recovery of damages against Rich's Inc., and A. D. McCain, an agent and salesman of Rich's Inc.

The material allegations of the petition for consideration on the question before us substantially are: In paragraph 3 it is alleged that about September 8, 1946, the plaintiff purchased from the defendant corporation through its agent three hooked rugs at an aggregate cost of $77.46. One of the rugs was 3 feet by 5 feet in size, the other two were 2 feet by 4 feet in size.

Paragraph 4 alleges that the rugs were delivered to the home of the plaintiff's daughter in Atlanta, October 10, 1946.

Paragraph 5 alleges that the rugs were placed on the floor for use in the daughter's home. The rugs were first placed by the daughter beneath articles of furniture where they were not stepped upon. They remained so placed until about November 20, 1946, when the daughter rearranged the furniture in her home. In such rearrangements one of the rugs was placed on the floor between the living room and the dining room. About November 21, 1946, the plaintiff, while visiting her daughter, stepped for the first time on the rug between the living room and the dining room. The rug slipped from under her feet, causing her to fall heavily on her back onto the floor. The floor was a level hardwood floor which had not recently been polished. The floor was neither slick nor slippery. As a result of the slipping and falling, the plaintiff received certain injuries.

In paragraph 7 it is alleged that the rug on which the plaintiff slipped and fell because of its nature and composition, had no inherent qualities of adhesion to the floor ordinarily present in floor rugs, and the rug was therefore dangerous to use without a rug pad or similar material beneath it to anchor it in position on the floor and make it safe to walk upon.

In paragraph 8 it is alleged that the facts relative to the inherent characteristics of this type of rug were well known to the defendant corporation and its agent, and they well knew that the use of said rug without the use of such a pad or other similar material under it made the rug a defective and inherently dangerous article not reasonably suited for the purpose for which rugs are intended, and for which this particular rug was intended, — that is, for use upon the floor.

Paragraph 9 alleges that the defendant corporation and the agent well knew that the use of the rug without placing a rug pad or similar material beneath it to anchor it would be dangerous; that the rug would slip if stepped upon, and that it was unsafe to step upon, due to this fact and that such slipping would in all probability cause a serious and dangerous fall.

Paragraph 10 alleges that the defendant corporation and its agent well knew these facts as experts in the business of selling rugs, the defendant corporation having a large department in its local store devoted exclusively to the sale of rugs, wherein many rugs were sold each day. The defendant corporation and its agent failed to disclose this information to the plaintiff. The plaintiff was wholly without such knowledge and was unaware of the inherent qualities of hooked rugs for slipping.

Paragraph 11 alleges that neither the defendant corporation nor its agent advised the plaintiff of the need of a rug pad or any such similar material to use in connection with such rug in order to make it safe for ordinary use until after the plaintiff was injured. When plaintiff's injury was reported to the defendant corporation, the plaintiff was promptly informed by the agent of the defendant corporation that a rug pad was needed to anchor such rug to the floor and make it safe for use and the defendant corporation promptly delivered to the plaintiff a rug pad to be used in connection with the said hooked rug.

Paragraphs 12, 13, and 14 allege the injuries received by the plaintiff from the fall.

Paragraph 15 itemizes certain special damages as a result of the injury.

Paragraph 16 states that the age of the plaintiff was 55; that prior to the injury she was in excellent health; that she was a real-estate salesman earning and capable of earning $6000 per year; that her position as a real-estate salesman required her to be on her feet the greater part of the day. Other parts of the petition allege that by reason of the injuries received from the fall she was unable to pursue her work.

Paragraph 17 of the petition alleges that at the time the plaintiff received her injuries she was in the exercise of ordinary care and that her injuries were caused by the negligence of the defendant corporation and its agent.

In paragraph 18 the plaintiff specifies as negligence on the part of the defendant corporation and its agents the following:

"(a) In selling to petitioner a hooked rug which did not possess the usual adhesive qualities ordinarily found in floor rugs, the same being a rug which because of its construction would not hold its position on the floor when stepped upon and which would easily slip when stepped upon. (b) In selling to petitioner a rug of the character above described which was not reasonably suited to the purpose for which a rug is intended, that is, for used upon the floor of a home, and which rug was, therefore faulty and defective in this respect. (c) In selling to petitioner a hooked rug of the character above described with full knowledge of its characteristics for slipping when stepped upon and without conveying this information to petitioner. (d) In selling to petitioner said hooked rug without delivering with said rug a rug pad or other similar material to be used under said rug so as to anchor said rug in place on the floor and make it safe for use and safe to walk upon, although defendants well knew that the use of said hooked rug without a rug pad or other similar material beneath it would be dangerous and would make said hooked rug without a rug pad or other similar material beneath it an inherently dangerous article. (e) In failing to notify petitioner at the time of said sale or at any time thereafter before her injury that the use of said hooked rug without the use of a rug pad or other similar material beneath same was dangerous, although defendants knew this to be so and defendants further knew that petitioner intended to use said rugs on the floor where they would be stepped upon."

Paragraph 19 alleges that as a result of the injury the plaintiff was entitled to recover for the loss of earnings and further that her ability to work was permanently impaired as a result of the injury.

Paragraph 20 alleges that the plaintiff was entitled to recover for her bodily injuries, for her pain and suffering, for her lost time, for her permanent impairment of her ability to work, and for lost time.

The defendant corporation demurred (1) because the petition set forth no cause of action against it; (2) because the well-pleaded allegations of the petition, when stripped of the legal conclusions of the plaintiff, affirmatively show that the defendant corporation had not violated any duty it owed the plaintiff; (3) because the well-pleaded allegations of the petition, when stripped of the legal conclusions in the petition of the plaintiff, show that the intervening act of the plaintiff's daughter in placing the rug on the floor in the space between the living room and the dining room was the proximate cause of the plaintiff's fall and the injuries which she may have received.

The defendant agent demurred (1) because said petition set forth no cause of action against him; (2) because the well-pleaded allegations of the plaintiff's petition, when stripped of the legal conclusions of the pleader, affirmatively show that this defendant has violated no duty which he owed the plaintiff.

The court sustained the demurrers and dismissed the petition. On this judgment error is assigned. 1. We have set forth the pleadings, not verbatim but substantially and in detail, as they appear in the record. It is well settled that on demurrer the allegations of a petition must be construed most strongly against the pleader. Where an inference to the right of a party claiming under the pleading may be fairly drawn from the facts stated therein, such inferences, on demurrer, will prevail in determining the rights of the parties. Krueger v. MacDougald, 148 Ga. 429 (96 S.E. 867). Mere conclusions add nothing to the facts alleged. Thomas v. Georgia Granite Co., 140 Ga. 460 (79 S.E. 130). A conclusion must yield, on demurrer, to the particular facts shown if inferences therefrom contradict the conclusions. Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 (118 S.E. 471). While it is true that the allegations of the petition in the instant case allege that the hooked rugs sold had no inherent qualities of adhesion to the floor ordinarily present in floor rugs, and that the rug was dangerous to use without a rug pad or similar material beneath it in position on the floor, and that the agent and salesman knew that the type of rug which was sold to the plaintiff was dangerous to use without a rug pad or similar material beneath it to anchor it on the floor, it is further alleged in this connection that the agent knew this and that the plaintiff did not. It is alleged that the plaintiff was a woman 55 years old engaged in business as a real-estate salesman making a salary of approximately $6000 a year; that she bought the rugs for a grown married daughter. It is reasonable to conclude from the petition that the plaintiff was a woman of considerable experience with the qualities of rugs and perhaps greater experience than most persons as her vocation required her to go into many homes and offices other than her own. It is common knowledge that all rugs have a tendency to slide on a smooth surface where there is any lateral pressure in stepping on them. There is no question from the petition that the plaintiff had full opportunity to examine the rugs. They were not concealed from her view. In the absence of any allegations to the contrary she evidently looked at them carefully. It would seem that if there were any inherent qualities in the rugs which affected their traction they were readily discoverable by the plaintiff. It therefore follows that the conclusions that the plaintiff was unaware of that, should give away to the pleaded facts and the inferences therefrom that the plaintiff was bound to know or by the exercise of ordinary care should have known the qualities the rugs possessed. It must be kept in mind that there is no allegation that there was any latent defect in the rugs. It was, so far as the allegations go, in material and make, a perfect hooked rug. There was no allegation that there was anything inherently dangerous in it, no defect in manufacture, no imperfection in the material used in the construction. It therefore follows that whatever danger there was relative to the rug was in the use of it. Rugs are in common use. There is no allegation that the manufacture of hooked rugs was a recent departure from rug manufacturing or that the rug on which the plaintiff slipped was such a rug as was not commonly and generally used in homes throughout the country. It would seem to require no skill or experience for one with the experience of the plaintiff to have discovered the qualities of the rug of which she complains. See, in this connection, Norris v. AmericanRailway Express Co., 156 Ga. 150, 155 (118 S.E. 686).

The rugs in the instant case, as is generally known, are everyday commonplace rugs, for use in the home. The size and shape are what is generally known as "scatter rugs." It is a matter of common knowledge that such rugs have a tendency to slip and we think the plaintiff was bound to know of such qualities of such rugs. We think this is an inference from the facts alleged as distinguished from the conclusions in the petition.

2. The instant case sounds in tort, the basic theory, however, upon which it is sought to have liability attached is the breach of an implied warranty that the articles were free from defects and suitable for the use for which they were intended. In paragraph 8 of the plaintiff's petition it is alleged that the rug on which the plaintiff slipped "was a defective inherently dangerous article, not reasonably suited for the use for which rugs are intended, and for which this rug was intended, to wit, for use upon the floor." In Jones v. Knightstown Body Co.,52 Ga. App. 667, 671 (184 S.E. 427), this court said: "If there is no express covenant of warranty, the purchaser must exercise caution in detecting defects, but the seller in all cases, unless expressly or from the nature of the transaction excepted, warrants that he has title and right to sell, that the article sold is merchantable and reasonably suited to the use intended, and that he knows of no latent defects undisclosed. Code of 1933, §§ 96-301, 96-306. Implied warranty is a guaranty against loss only from latent defects. The law of implied warranty will not avail against patent defects, nor against latent defects which are either disclosed or are discoverable by the exercise of caution on the part of the purchaser. Lunsford v. Malsby,101 Ga. 41 (28 S.E. 496). Where property is bought under an implied warranty that it is reasonably suited to the use intended, an acceptance by the purchaser waives all defects discovered by him, or which, by the exercise of ordinary care and prudence, he might have discovered before delivery. Mansor v. Zemurray, 22 Ga. App. 441 (96 S.E. 233); Cook v. Finch, 117 Ga. 541 (44 S.E. 95)." Our construction is that the effect of this decision holds that if the defect was discoverable there is no implied warranty. If there is no implied warranty, there is no basis for any tort action, since there is no duty which is violated. The petition nowhere alleges that the plaintiff could not by the exercise of ordinary care have discovered the qualities of the rugs of which she complains. She merely alleges that she had no actual knowledge of such qualities. As we have heretofore stated, the petition nowhere alleges that there were any latent defects in the rugs. See, in this connection, Robbins v. Georgia PowerCo., 47 Ga. App. 517 (171 S.E. 218).

In our opinion the plaintiff is not entitled to recover. We have read carefully the decisions cited on behalf of the plaintiff. The facts in those cases differentiate them from those in the instant case. Since we have set out the pleadings we will call attention to the cases cited and relied upon by counsel for the plaintiff, without discussing them in a comparative way. They are: Smith v. Clarke Hardware Co., 100 Ga. 163 (28 S.E. 73, 39 L.R.A. 607); Woodward v. Miller, 119 Ga. 618 (46 S.E. 847, 64 L.R.A. 932, 100 Am. St. R. 188); Bohler v.Owens, 60 Ga. 186; Rollestone v. Cassirer, 3 Ga. App. 161 (59 S.E. 442); Savannah Lumber Co. v. Davis, 14 Ga. App. 233 (80 S.E. 535); King Hardware Co. v. Ennis, 39 Ga. App. 355 (2) (147 S.E. 119); Davis v. Williams, 58 Ga. App. 274 (198 S.E. 357); Hodges v. Atlanta Gas Light Co.,75 Ga. App. 105 (42 S.E.2d 244).

The court did not err in sustaining the demurrers to the petition for any of the reasons assigned.

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.