Home Federal Savings & Loan Ass'n v. Hulsey

121 S.E.2d 311, 104 Ga. App. 123, 1961 Ga. App. LEXIS 620

• Court: Court of Appeals of Georgia
• Decided: June 29, 1961
• Docket: 38943
• Status: Published

Opinions

Nichols, Judge.

In view of the quoted allegations which when construed against the pleader, as they must be construed on general demurrer, allege no more than constructive knowledge, or that the defendant should have known of the alleged slick and dangerous condition, and in order to set forth a cause of action the petition must allege facts or circumstances sufficient to make it a question of fact as to whether the alleged dangerous condition had existed for a sufficient length of time so that knowledge would be imputed to the defendant. See Setzers Super Stores of Ga. v. Higgins, ante; Cook v. Kroger Baking &c. Co., 65 Ga. App. 141 (15 SE2d 531); Jones v. West End Theatre Co., 94 Ga. App. 299 (94 SE2d 135).

The petition alleged that on August 15, 1958, the defendant occupied the building and carried on its business there, and on such date maintained the air conditioner, and operated the same on such date, that it knew that pedestrians used the alley during each day of August 1958, and that it should have known of the dangerous condition existing on August 15, 1958. The petition is barren of any allegation that the defendant occupied the building prior to August 15, 1958, or that the air conditioner was in operation prior to August 15, 1958 (the date on which the plaintiff was allegedly injured), and under the above cited cases the judgment overruling the defendant’s general demurrer must be reversed because no facts or other circumstances appear that would authorize a finding that the defendant had sufficient notice of the facts to impute knowledge of the alleged condition to it so that such condition should have been corrected.

Judgment reversed.

Carlisle, P. J., concurs. Eberhardt, J., concurs specially.