Colonial Stores Incorporated v. Scholz

The overruling of the demurrer to the petition was not error.

DECIDED DECEMBER 5, 1945. John F. Scholz filed a suit for damages against Colonial Stores Inc. The defendant demurred generally and specially to the petition as amended. The demurrers were overruled, and that judgment is assigned as error. The amended petition alleged that on August 19, 1944, the plaintiff went to the defendant's store in the City of Albany and bought four cases of soft drinks, and was required, in addition to the purchase-price thereof, to deposit $2. which would be refunded to him when he returned the empty bottles; that on August 21, 1944, about 6 p. m., he parked his car in the rear of said store and walked into the front thereof and told the defendant's manager of the store, James Shipp Jr., that he had the empty bottles in his car at the rear of the store and wanted to return them and obtain his deposit; that he and Shipp walked to the of the store, and Shipp unlocked the back door and opened it, and the plaintiff walked out to his car, took out two cases of the empty bottles, and carried them through said door into the back part of the store, which was used as a storeroom; that he had walked about 10 feet inside the store when he stepped on a piece of cardboard, which slipped and caused him to fall to the floor and to sustain the injuries sued for; that the piece of cardboard was about 6 by 8 inches in size and of a light-brownish color, but was soiled and of such color that it merged into the color of the floor; that the entire floor of the storeroom was dirty, and had flour, meal, and other substances scattered thereon, but said substances were covered with various pieces of cardboard which were scattered on the floor; that, prior to his accident, the slippery condition of the floor was unknown to him, and in the exercise of ordinary care he could not discover that said cardboard and substances were dangerous and unsafe to walk on; that the defendant was negligent in inviting the plaintiff, through its manager Shipp, to use the rear of its store without warning him of the condition of its floor; and was negligent "in allowing" flour, meal, and other substances to be thrown or left on said floor, without, after inviting the plaintiff to use the floor, warning him of such condition.

The general demurrer alleged: that the petition set forth no cause of action; that it failed to state that the defendant had notice or knowledge of the presence of the alleged foreign substances on its floor; that it contained no allegation that such substances were concealed from the plaintiff's view; that it plainly appears that the alleged danger was not only obvious, but that the plaintiff by the exercise of ordinary care could have known of it; that it plainly appears that the plaintiff had opportunities, equal to those of the defendant, of knowing of the existence of the alleged foreign substances and of the alleged danger thereof. Was the petition subject to the general demurrer? The petition did not allege how long the cardboard and the other foreign substances had been on the floor, nor that they had been there for a sufficient length of time to constitute constructive notice to the defendant of their presence there. Therefore the petition failed to charge that the defendant had constructive notice of the defects on the floor. That being true, did the petition allege that the defendant had actual knowledge of such defects? It did not do so directly, but it did allege that the entire floor of the storeroom was dirty and had flour, meal, and other substances scattered thereon, and that said substances were covered over with various pieces of cardboard, which made walking thereon dangerous, and that the defendant was negligent in inviting the plaintiff to use said room, without warning him of the condition of the floor, and was negligent in "allowing" flour, meal, and other substances to be thrown or left on the floor.

Counsel for the defendant contends that the word "allow" does not impute knowledge on the part of the defendant, and cites Webster's Dictionary and several foreign decisions which hold that the word "permit" denotes a more positive assent than the word "allow," which denotes mere acquiescence. However, in Thurman v. Adams 82 Miss. 204 (33 So. 944), the court said: "We find this term `allow' defined in volume 2, p. 152, Am. Eng. Enc. of Law (2d ed.), as follows: `To grant, to admit, to suffer, to yield, to grant license to, to permit, to tolerate.' In volume 2 of the Cyclopaedia of Law Procedure. p. 134, we find the term `allow' further defined, `to fix, to give.' In Webster's International Dictionary it is defined, `to admit, to concede, to permit, to consent to.' Mr. Anderson, in his Law Dictionary, defines `allow,' `to approve, to sanction, to permit.' We have been unable to find in any of the books any definition of the term `allow' which does not imply knowledge or consent." And in 2 Corpus Juris 1156 it is said: "The word [allow] always implies knowledge or consent." We hold that the word "allowing," as employed in the instant petition, implied actual knowledge on the part of the defendant. We further hold that, under the allegations and facts set forth in the petition, the questions as to whether the plaintiff's injury resulted from the alleged negligence of the defendant, or whether the plaintiff, by the exercise of ordinary care, could have avoided being injured, should be determined by a jury.

The cases cited by the plaintiff in error are distinguished by their particular facts from this case. The court did not err in overruling the demurrer.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.