J. C. Penney Co. v. Berry
J. C. Penney Co. v. Berry
Opinion of the Court
The defendant in this case assigns error on the judgment of the trial court overruling its general and special demurrers to the plaintiff’s petition. Held:
The first count of the petition alleged: The plaintiff was a
The petition stated a cause of action. American Legion v. Simonton, 94 Ga. App. 184, 186 (94 SE2d 66); accord Duren v. City of Thomasville, 92 Ga. App. 706, 709 (89 SE2d 840). The cases relied on by the defendant, in which there was no allegation that the substance causing the plaintiff to fall had remained on the floor for a sufficient length of time that the defendant should have discovered its presence, Brown v. S. H. Kress Co., 66 Ga. App. 242 (17 SE2d 758), Watson v. Mc-Crory Stores, Inc., 97 Ga. App. 516, 519 (102 SE2d 648), Wootton v. City of Atlanta, 101 Ga. App. 779 (115 SE2d 396), are not controlling.
The second count of the petition, containing the same allegations of fact but omitting the specifications of negligence stated in the first count, and alleging instead that “the business premises, including the stairway in question, was under the exclusive control of the defendant and that the accident would not have happened without an absence of due care on the part of the defendant,” did not state a cause of action. Wootton v. City of Atlanta, 101 Ga. App. 779, supra.
Judgment overruling special demurrers and general demurrer to first count of petition affirmed; judgment overruling general demurrer to second count reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.