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WITTKE v. HORNE'S ENTERPRISES, Inc. et al.
43308.
Action for damages. Richmond Superior Court. Before Judge Killebrew.
WHITMAN, Judge.
The grant of a summary judgment was proper in a suit brought against a host for injuries received by his social guest who held a test tube filled with powder removed from fireworks and allowed the host's minor son to drop a lighted cigarette in to the tube, causing it to explode, it appearing that the defendant was without any knowledge of the affair until after it occurred.
J. R. Crank, a retired officer of the military forces, was general manager of a motel at Augusta known as Horne's motor lodge. He had a son, David Crank, sixteen years of age, who was a close friend and associate of Jerry Boyd, seventeen, and, Lynn Wittke, nineteen years of age, sons of other military personnel stationed at Augusta.
On the afternoon of December 31, 1964, the three boys were together at Jerry Boyd's home. They had about 20 firecrackers which they had purchased a week previously over in South Carolina and some "pop bottle skyrockets," sometimes referred to as "cherry bombs," which Lynn had obtained on a trip to Illinois about a year previously. While at Jerry's home the boy had taken the powder from about four of the skyrockets or bombs and put it in a test tube for use as a fuse in exploding firecrackers that night. The test tube was placed in Jerry's coat pocket.
It was New Year's Eve and the boys wanted to spend the evening together. David suggested that since his father was the manager of the motel he could arrange to have them spend the night with him in a room there, and invited the boys to be his guests. It was agreeable to David's father, who felt that if they spent the night together at the motel it would keep them off the streets and out of trouble. Lynn called Mrs. Wittke and asked permission to stay with David and Jerry. She raised some questions about it, and Colonel Crank was put on the telephone to extend the invitation, which he did, telling Mrs. Wittke that he was to be on duty that night and he would arrange for them to have a room. She testified that he "gave me the impression that he was going to he there to supervise the boys."
Thereafter the boys went out with Daniel Harris (who was in no way connected with Colonel Crank or the motel) to a liquor store, where he purchased for them a half-pint of vodka, a half-pint of rum and two large bottles of beer. They also purchased some Coca-Colas for use as chasers. Upon returning to the motel one of the boys got some ice from the self-service facility of the motel, took it to the room, and all of them had a drink of vodka or of rum mixed with Coca-Cola. They then went out to a restaurant, ate supper, returned to their room, undressed, went to bed and watched T-V. While they were thus watching the T-V David's father went to the room and checked, finding them in bed. He made no further cheeks.
The boys testified that although they had drunk some of the vodka and rum, but had not touched the beer, the bottles were put away and were not out where Colonel Crank could see them, that they had not had enough to make it noticeable that they were drinking, and that he would have had no reason to suspect that they were drinking unless he had gotten close enough to them to smell it. He did not know that they had any intoxicants in the room. Likewise, they testified that the firecrackers and cherry bombs were not out where they could be seen and that Colonel Crank did not know that they had any of them. There was no room service throughout the evening, save one occasion when one of the boys ordered a package of cigarettes, which a bellboy delivered.
The room to which they were assigned was the conference room of the motel some 50 yards from the office where Colonel Crank stayed in the performance of his duties as manager of the motel. At about 10 or 15 minutes of 12 o'clock they began shooting off the firecrackers and bombs, but in doing so, they went out the back door of their room to the back of the motel premises. Their activity could not be seen from the motel office, and there were houses just across the street at the back of the motel. Lynn (plaintiff's son) testified that it was logical that one in the office would think that the shooting of the fireworks was from those homes rather than from the motel. The only thing which might have drawn Colonel Crank's attention to the matter was the noise.
After all the firecrackers and bombs had been shot off, David Crank took the test tube from Jerry's pocket, handed it to Lynn Wittke and told him to hold it. Lynn took it and they went outside the room. He held the test tube while David dropped a lighted cigarette into it, but did nothing to avoid his doing so. H testified that the putting of the cigarette into the test tube was a "joint undertaking" on their part and that it was done because they mistakenly believed, from their knowledge of chemistry, that it would cause the powder to "fuse" rather than to explode and that they were both greatly surprised when it exploded--injuring both Lynn and David.
All three of the boys testified that they knew it to be against the Georgia law to explode firecrackers or cherry bombs. See Code Ann. 92A-801 et seq.
From the grant of the summary judgment plaintiff appeals.
For several reasons, any one of which should suffice, we affirm the grant of the summary judgment.
Contract or tort? In his suit, as amended, plaintiff alleges that his son called his mother (plaintiff's wife) on the telephone, asking permission to spend the night with David and Jerry at the motel, and that the defendant Crank got on the telephone and asked Mrs. Wittke to allow Lynn to spend the night with the other boys at the motel, stating that he would be there and that he would "take care of them." In response, Mrs. Wittke extended the permission and the boys were assigned a room in the motel by defendant Crank. In his affidavit plaintiff asserted that Mrs. Wittke had authority, in his behalf, to extend the permission. In his affidavit Lynn Wittke asserted that defendant Crank promised his mother that he would look after him and Colonel Crank's son, David Crank, if she would allow him to spend the night at Horne's Motor Lodge. In her affidavit Mrs. Wittke asserted that had "the defendant Crank not assured [her] that he would look after and supervise the conduct and activities of her son and the son of the said J. R. Crank, she would [not have] consented to her son spending the night at the motor lodge."
In his second amendment to the petition plaintiff alleged that if Crank had inspected the room where the boys were located in the motel between the hours of 9 and 11:30 pm. he would have discovered that they were in possession of intoxicants and explosives and that upon such discovery, "in fulfillment [and] in accordance with his promise to petitioner's wife to supervise the behavior of these minor boys" he could and should have required them to surrender the intoxicants and explosives to him, and further amended by charging that defendant had allowed the boys to explode the fireworks on the premises of the motor lodge for a period of over an hour without taking any steps to prevent it, "in direct violation of defendant Crank's covenant and agreement made to petitioner's wife." The defendant was charged (in the amendment) with an utter indifference for the welfare and safety of the boys and a total lack of supervision of their behavior. 1
If this be a suit for violation of the "covenant and agreement" alleged to have been made by defendant Crank with Mrs. Wittke and assuming it to have been made with her on plaintiff's behalf, it must fail for want of sufficient specificity to make it capable of enforcement. The only agreement charged or alleged is that the defendant would "take care of" the boys at the motel. Mrs. Wittke testified that the telephone conversation "gave me the impression that he was going to be there to supervise the boys," but she also testified that "he was going to be there, that he was going to be on duty that night--the boys could--he would give them a room, and he would be there."
"A covenant that does not define what is to be done or furnished by the covenantor in discharging the duties incumbent upon him Sunder its terms, except to give to the covenantee an unlimited option as to what will be required, is too indefinite to be enforceable." Atlantic C. L. R. Co. v. Ga. A. S. & C. R. Co., 91 Ga. App. 698 (3) (87 SE2d 92). And see Oliver Constr. Co. v. Reeder, 7 Ga. App. 276 (66 SE 955).
What meaning is to be ascribed to the promise of Colonel Crank to "take care of" young Wittke, a nineteen-year-old? Was it to "baby-sit" with him? Or was it the meaning ordinarily ascribed to this phrase when used by the manager of a hotel or motel when he is asked for a reservation--to provide a place for him for the night?
If it be regarded as a suit in tort 2 it must fail. "A tort is the unlawful violation of a private legal right, other than a mere breach of contract, express or implied; or, it may be the violation of a public duty, by reason of which some special damage accrues to the individual." (Emphasis supplied.) Code 105-101. Even if we could find that a private duty of some sort on the part of the defendant Crank flowing to the plaintiff arose by virtue of the alleged "covenant and agreement" with his wife, nothing more is alleged or contended than that he neglected to perform it, i.e., he neglected to supervise, to inspect the room, etc. "[W]here the breach complained of is simply the neglect of a duty such as is expressly provided for by the contract itself," the action is in contract. Fain v. Wilkerson, 22 Ga. App. 193 (2) (95 SE 752). "The duty, for a breach of which an action ex delicto lies, must be a duty imposed by law as to some relationship, general or special, as applied to that class of cases where the alleged duty arises out of a contract. For instance, if one promises to pay another a given sum of money by a named day, the contract creates a duty to pay; but a breach of that duty is not a tort." Howard v. Central of Ga. R. Co., 9 Ga. App. 617, 619 (71 SE 1017).
Parent's liability for child's tort. If we assume that some
private duty did arise from the alleged contract with plaintiff's wife it was not such that it could impose liability for a tort of the defendant's son, not committed by defendant's command or in the prosecution of his business, and from which he derived no benefit. Code 105-108. "A father is not liable for a tort of his minor child, with which he was in no way connected, which he did not ratify, and from when he did not derive any benefit." Chastain v. Johns, 120 Ga. 977 (48 SE 343, 66 LRA 958). "The father of a minor son who is a pupil attending a public school or high school, and who seriously injured a fellow pupil while working in a chemical laboratory by the direction of a teacher, by throwing sulfuric acid in the face of his fellow pupil, is not liable for damages because of this tortious act, it not appearing that the same was committed by the command or with the consent of the father, or that it was ratified by him, or that he derived any benefit therefrom." Stanford v. Smith, 173 Ga. 165 (3) (159 SE 666).
Certainly it does not appear here, nor is it contended, that the act of David Crank in putting a lighted cigarette into the test tube held by Lynn Wittke was by the command of David's father, that he ratified it or that he derived any benefit therefrom. It was a matter that he knew nothing about and had no reason to anticipate until after it had occurred.
This petition does not seek recovery because of any act of vandalism by defendant's son. If it did and if there was such an act, it is sufficient to point out that liability therefor when the act results in personal injury was not imposed until the Act of 1956 (Ga. L. 1956, p. 699; Code Ann. 105-113) was amended in 1966 (Ga. L. 1966, p. 424), some two years after this occurrence. Prior to the amendment the statute did not apply where the injury was to person only. Vort v. Westbrook, 221 Ga. 39 (142 SE2d 813).
Moreover, if any duty arose by virtue of the alleged agreement with plaintiff's wife, the breach of which could be tortious, before any recovery would be authorized it must appear that the injury suffered by plaintiff's son was the natural and probable consequence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act. Southern R. Co. v. Webb, 116 Ga. 152, 156 (42 SE 395). Does that appear here? All of the boys testified that the defendant, Colonel Crank, neither knew nor had any reason to suspect that they had either intoxicants or explosives in the motel room. These were hidden from sight, and when he came to the room to check on them at about 8:30 he found them undressed and in bed watching television. He had no reason to suspect that this would change.
When the boys got up shortly before midnight and started shooting their fireworks they were careful to take them out the back door and shoot them on the back of the motel property, not visible to one in the motel office where Colonel Crank was on duty. It was just across the street from a number of houses and, as Lynn Wittke testified, it was logical for one who may have heard the noise to conclude that it came from the houses, not from the motel.
The purchase and sale of fireworks was illegal in Georgia, and these were not generally available in Augusta. We do not think that Colonel Crank must be charged with the responsibility of anticipating that these boys had gone over into South Carolina a week previously to secure them and illegally bring them into this State, or that plaintiff's son may have brought some down from Illinois a year before. "One is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable. Whitaker v. Jones, McDougald &c. Co., 69 Ga. App. 711, 716 (26 SE2d 545)." Moses v. Chapman, 113 Ga. App. 845 (1) (149 SE2d 850). Indeed, "unless and until there be facts or circumstances to indicate to the contrary, it will be presumed that every person obeys the mandates of law." Clements v. Hollingsworth, 205 Ga. 153 (5) (52 SE2d 465). Can it be said that there was anything more than a remote or slight probability that these boys brought fireworks with them when they came in to spend the night as guests at the motel? The defendant had seen them when they came in, and when he went to their room, but saw none, for the boys took care that he did not, putting them out of sight. Even more remote was the probability that they had removed the powder from some of the cherry bombs and placed it in a test tube and that they would try to "fuse" it by dropping a lighted cigarette into the tube. It is to be remembered that there was no injury from the shooting of the firecrackers and the cherry bombs, only from the powder removed during the afternoon and placed in the test tube, which Jerry carried in his pocket.
Thus, if it be said that some duty arose by virtue of the alleged contract with plaintiff's wife, it could not extend to this greatly remote and improbable happening.
Custodial care. If this action is one for the recovery of damages because of the failure of the defendant Crank to perform his duties as custodian of plaintiff's son, it must fail.
If such duty was imposed by the alleged contract with plaintiff's wife, then it would extend no further than to anticipate that which might normally and usually be expected--not the remote and improbable. Moses v. Chapman, supra. The evidence without contradiction discloses that in this respect his duty was performed.
The recent case of Herring v. Mathis Certified Dairy Co., 118 Ga. App. 132, does not require a different conclusion. in that case the court dealt with the duty of the owner of the land and of one who was placed in charge of a Sunday School group for taking them out on a picnic and outing near a lake. One child, who was only 14 years of age, was drowned while swimming in the deep waters of the lake. The court held that under those circumstances the child was not, as to the landowner, a social guest, pointing out that the outing was itself a business-oriented one, affording advertising and a resulting increment of sales of his products. As to the person in charge of the group, it was pointed out that the child was one of "tender age," or so close thereto as to require the exercise of ordinary care for his safety by those into whose custody he was placed--at the same time conceding that these did not owe him the same degree of care that would be due a much younger child.
Social guest. Under the facts here we conclude that Lynn Wittke was simply a social guest of Colonel Crank--one who was socially visiting with his son. He was a licensee, and the duty of Colonel Crank was to warn him of any dangers of which he might know concerning the premises and to refrain from doing him any wilful harm. Stanton v. Grubb, 114 Ga. App. 350 (1) (151 SE2d 237); Laurens v. Rush, 116 Ga. App. 65 (156 SE2d 482). As we see it, nothing in the alleged contract with plaintiff's wife could or did raise his status above that level. Nothing in the pleadings or the evidence discloses that his duty in that respect was not fulfilled.
Would Colonel Crank's duty to his social guests extend to the making of a search of the room, bathroom, and closets, looking under the beds, in the furniture drawers and going through the pockets of his guests' clothing to ascertain whether they might have intoxicants or illegal fireworks in their possession? Obviously not.
No negligence or breach of duty on the part of the defendant Crank appears. If there was a contract with plaintiff's wife to "take care of the boys," i.e., provide them with a room for the night at the motel, it appears without contradiction that he did so.
When all of the depositions and affidavits introduced by both parties at the hearing on the motion for summary judgment are read it is apparent that there is no substantial issue of fact. There is little, if any, difference in what the witnesses say. The pleadings were pierced, demonstrating that there can be no recovery against defendant Crank, and it was proper to grant the summary judgment and "avoid useless time and expense to go through a jury trial even though the petition fairly bristles with serious allegations, . . . It is one thing to make wide general sweeping allegations in a petition, but quite another to testify of one's own knowledge to the existence or non-existence of a fact." Crutcher v. Crawford Land Co., 220 Ga. 298, 303 (138 SE2d 580).
FELTON, Chief Judge, dissenting.
I shall confine myself to the crux of the case and not attempt to discuss the irrelevant matters covered in the majority opinion.
The agreement by J. R. Crank to take care of the plaintiff's son will in law be construed to mean that he would exercise ordinary care to do so. This is an action for breach of a contract to exercise ordinary care in safeguarding plaintiff's son.
1. In the first place the facts in this case do not bring it within the category of the social guest cases. In those cases we have only invitations and no express agreement to safeguard a minor, or anyone else, as we have in this case.
2. In the second place the rationale of the right to recover is not based on what harm to the minor could or should have been foreseeable at the time of the invitation. It is that the defendant could have heard the explosions and could have stopped them in the exercise of ordinary care, thus preventing harm to plaintiff's son. There is no showing in support of the motion for a summary judgment that this allegation is cot true. Young Wittke is not a party and what his opinion is as to where the sound of the explosions would seem to the defendant to come from is not binding on the plaintiff.
3. The majority has put a construction on the showing by the defendant precisely the opposite from that provided by law. There is no affidavit or deposition by the defendant.
4. I do not know on what theory the court granted the summary judgment but I can guess from the argument of appellee that he did so on the theory that the Wittke boy's participation in illegal acts prevented the father's recovery. But even so his judgment would be right if the allegations were pierced and the matter presented in support of the motion for a summary judgment demanded a judgment for the defendant. Construed against the movant the motion and supporting material require a jury trial on the question of whether under the circumstances the defendant Crank could have by the exercise of ordinary care prevented the harm which came to the plaintiff's son whether or not he could have or should have anticipated the exact nature of the harm.
The majority opinion in generalities states that the pleadings are pierced. I challenge them to show such to be the case in minute detail.
The headnote is completely misleading. The question in this case is not whether the defendant had any knowledge of the facts of the injury before they occurred. The question is whether he kept his agreement with the boy's mother to exercise ordinary care in looking after him, whether under the circumstances he could have by the exercise of ordinary care discovered that the boys were playing with fireworks and should have stopped them before the serious injuries to the plaintiff's son.
I am authorized to state that Judge Deen concurs in this dissent.
Notes
1  See discussion under "Social guest," post.
2  It is to be noted that this action is not by or for the benefit of the boy, Lynn Wittke; it is by the father to recover for medical expenses and loss of services. If it were by or on behalf of the boy, seeking recovery for the tortious act of David Crank, it would also fail, since the act was by and with his consent, (Code 105-1803) or he assumed the risk of injury. He was nineteen years old, and the Supreme Court has pointed out that
Hull, Towill & Norman, Lawton Jordan, Jr., James M. Hull, Jr., Fulcher, Fulcher, Hagler, Harper & Reed, E. D. Fulcher, for appellees.
Lanier, Powell, Cooper & Cooper, Wilmer D. Lanier, Harris, Chance & McCrocken, Henry T. Chance, for appellant.
ARGUED JANUARY 8, 1968 -- DECIDED JULY 10, 1968 -- REHEARING DENIED JULY 25, 1968 -- CERT. APPLIED FOR.
Friday May 22 18:59 EDT


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