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Lawskills.com Georgia Caselaw
MARTIN et al. v. HENSON.
36644.
Tort; injuries to invitee. Before Judge Calhoun. Muscogee Superior Court. February 4, 1957.
GARDNER, P.
The status of invitee involves mutuality of interest. Mutuality of interest required to make one on the premises of another an invitee means that the subject matter of the enterprise must be mutual to the extent that each party is lawfully interested therein, or that there is common interest or mutual advantage involved. An owner of premises must, as to invitees, exercise ordinary care to keep premises safe, not reasonably safe. Where an invitee is injured on premises, as here, the question of negligence, whose negligence and what negligence is for the jury to determine under all the facts and circumstances of the case.
"1. Defendant, Roy E. Martin, is a resident of 1601 Summit Drive, Columbus, Muscogee County, Georgia.
"2. Defendant, Martin Theatres of Georgia, Inc., is a corporation organized under the laws of Georgia, and having its principal office and place of doing business in Columbus, Muscogee County, Georgia.
"3. Defendant, Martin Theatres of Columbus, Inc., is a corporation organized under the laws of Georgia, and having its principal office and place of doing business in Columbus, Muscogee County, Georgia.
"4. Said defendant, Martin Theatres of Georgia, Inc., and said defendant, Martin Theatres of Columbus, Inc., are the sole members of a general partnership, which partnership does business under the name and style of 'Martin Theatres'. Said partnership herein named as a defendant, has its principal office and place of doing business in Columbus, Muscogee County, Georgia, and is herein referred to as 'Martin Theatres'.
"5. Defendant, Roy E. Martin, is an officer, stockholder and director in Martin Theatres of Georgia, Inc. Defendant, Roy E. Martin, is an officer, stockholder and director in Martin Theatres of Columbus, Inc."
By amendment the following was added to paragraph 5: "In all matters herein related he was acting within the scope of his authority and employment as an officer of both of said corporations and as a member of said general partnership, pursuant to and in accordance with the policy and custom of the other defendants in matters of community service, as a part of the good will, advertising and public relations programs of said other defendants, and in furtherance of their slogan: 'Dedicated to community service'."
"6. The said defendants, 'Martin Theatres', Martin Theatres of Georgia, Inc., and Martin Theatres of Columbus, Inc., were, at all times herein related, engaged in the business of distributing and exhibiting motion pictures, to which exhibitions the general public was invited. At all times herein related, said defendants undertook to participate in community affairs in the communities where their motion picture outlets were located, including Columbus, Georgia; undertook, as a part of their regular activities, to perform various tasks of community service without charge or obligation; contributed to various community and public enterprises of a charitable, civic and religious nature; and had as their motto the slogan 'Dedicated to community service'.
"On many and various occasions, and from time to time, said defendants, without charge, have opened their various motion picture theatres and provided places of assembly for numerous events of community interest, other than the exhibition of motion pictures. On many and various occasions, and from time to time, said defendants have planned, sponsored and put on gatherings and entertainments for community service groups, similar to the gathering and entertainment hereinafter described."
Paragraph 7, as amended, is as follows: "On the night of September 11, 1954, the defendants planned and intended to entertain the Junior League of Columbus, an organization dedicated to civic and charitable works in Muscogee County, Georgia, at an al fresco party at the home of, and on the grounds of, the defendant, Roy E. Martin. All of the members of the Junior League and their husbands were invited to attend said party, and substantially all of them did attend and participate in said party. The said party was an event of community interest in the City of Columbus, which was planned and put on by the defendant, Roy E. Martin, at his home at 1601 Summit Drive, Columbus, Georgia, and on the grounds appurtenant thereto, by agreement and in conjunction with said defendant, Martin Theatres of Columbus, Inc., said defendant, Martin Theatres of Georgia, Inc., and said defendant, 'Martin Theatres', as a joint enterprise and joint adventure of all of said defendants and for their pecuniary benefit. Defendant, 'Martin Theatres', furnished and provided the entertainment of the evening, which was in the form of motion pictures, and the work of preparing for and putting on the party was performed by the employees of the defendant, Roy E. Martin and employees of the defendant, 'Martin Theatres', pursuant to the active direction and supervision of said defendant, Roy E. Martin.
"8. All of the defendants entered into, and were parties to, a plan, agreement, conspiracy and concert of action to do all of the acts herein alleged to be the acts of the defendants, or any of them. All of the acts of the defendants, and of each defendant, were done in furtherance of such agreement, plan, concert of action and conspiracy. All of the defendants had a common design and community of interest in each and every act of each defendant, as herein alleged.
"9. Plaintiff herein, Mrs. Carlton Henson, is the mother of Mrs. Roy E. Martin, the wife of the defendant, Roy E. Martin. At all times herein related, the status of the plaintiff was that of a guest and invitee."
Paragraph 10, as amended, reads: "On the aforesaid night of September 11, 1954, plaintiff arrived at the home of the said defendant, Roy E. Martin, some time in advance of the commencement of the party, at the special invitation and request of the said Roy E. Martin and her said daughter for the purpose of assisting in the preparations for the party and assisting her said daughter in dressing for the party.
"11. At or about 7:30 p. m., on said date, and after plaintiff had been present at the home of the said defendant, Roy E. Martin, for some time, and after she had spent some time assisting in the preparations for the party and aiding her said daughter to get dressed for the party, her daughter, the said Mrs. Roy E. Martin, discovered that some of the guests for the party had arrived, parked their automobiles and were walking toward the house. The said Mrs. Roy E. Martin was not dressed, and so could not go out to greet the guests who were arriving earlier than expected. The said Mrs. Martin requested the plaintiff to go down, and on behalf of the said Mrs. Martin, to receive the arriving guests and greet them until such time as the said Mrs. Martin could complete her dressing and come downstairs.
"12. Plaintiff descended the steps from the second floor, where she and the said Mrs. Martin had been, to the first floor and started through the library toward the outside patio, in order to greet said guests.
"13. A part of the floor in the library was covered by a rug or carpet. That part of the floor between the edge of the rug or carpet and the door leading to the outside patio was slick and slippery. The defendants, in preparing for said party, had caused a cloth runner of muslin, or some such similar cloth, to be laid across the said rug or carpet and across the said slick and slippery floor between the rug or carpet and the outside door. The said runner was not nailed or tacked in place, but was loose and subject to be moved without difficulty. It was not possible to approach said outside door from the inside without stepping on said cloth runner."
By amendment paragraph 14 was revised to read as follows: "The said servants, employees and agents of the defendants whose names are not known to the plaintiff, but are well known to the defendants, in preparing for said party, had walked in and out of the house over said cloth runner, and had caused the said runner to become pushed up against the door in such manner that some of the folds of said runner extended between one inch and two inches above the aforesaid slick and slippery floor."
"15. The door leading from the library to the outside patio was equipped with an unusually strong spring, in order that said door might remain securely fastened at all times, the said home of the defendant, Roy E. Martin, being completely air-conditioned. Said door opened outward, or away from said library, and was particularly difficult to open for the plaintiff, a woman of very little strength, who was then fifty-five years of age.
"16. Just outside said door were two steps leading from the main floor of the library down to the outside stone patio, which lay immediately to the east of said house. Said steps were not provided or equipped with a landing at the head thereof, nor were they provided with a hand rail of any sort.
"18. The entire house and premises, to which reference is herein made, were the property of the defendant, Roy E. Martin, who has constructed said door, library, grounds, steps, stone patio, lighting system and all of the items incidental to and related to them to which reference is herein made.
"19. All of the defendants had actual knowledge of all of the conditions herein alleged with reference to said door, library, grounds, steps, stone patio, and lighting system, and all of the items incidental and related to them to which reference is herein made."
By amendment the following was added to paragraph 19: "Said conditions were not known to the plaintiff, were not apparent to her, and could only have been determined by stooping down close to the floor and making a very close inspection which the plaintiff was under no obligation to make. Plaintiff had no knowledge of said conditions nor of the danger or risk involved. Said conditions and the danger or risk involved were not obvious and were not apparent. There was nothing to put the plaintiff on notice of said conditions or on notice of the risk or danger involved.
"20. Plaintiff approached the above described door located at the head of said steps and leading to said outside patio, turned the knob of said door and pushed it outward in order to open it."
By amendment the following was added to paragraph 20: "As she approached the door leading to said outside patio from the library, the plaintiff extended her hand toward said door and the knob or handle thereof because plaintiff was about to turn said knob, open said door and move through it to the steps leading down from the library to said outside patio.
"21. Because of her frailty and lack of strength, plaintiff had to, and did, push hard against said door before it opened. At or approximately at, the same time that said door yielded to the efforts of plaintiff and opened outward and away from plaintiff, plaintiff's heel caught in the aforesaid fold of the muslin runner which extended above the floor level, and said runner slipped or moved on said slick and slippery surface of the floor, causing the plaintiff to fall forward and out the door, miss her footing on said steps, to fall down said steps and to land full length on the stone surface of the patio on her right hip, sustaining severe, painful and permanent injuries, as hereinafter alleged.
"22. As a result of falling out the door, down the steps and on the stone patio, plaintiff sustained the following injuries: (a) Her right hip was fractured and broken in the joint. (b) Her right arm was fractured and broken. (c) Her right shoulder was particularly severely bruised, contused, sprained, strained and jarred. (d) She received numerous severe and painful sprains, strains, bruises and contusions all over her body.
"23. As a result of said fall, the doctors attending plaintiff inserted a metal pin or nail in plaintiff's right hip in order to immobilize said fractured hip, which treatment was necessary. Plaintiff has had said pin or nail in her hip ever since said fall, and it will remain there for the rest of her life.
"24. The doctors attending plaintiff inserted a metal pin or nail in her right arm, in order to immobilize said fracture, which treatment was necessary. Said pin or nail has been in plaintiff's arm ever since said fall, and will remain there for the rest of her life.
"25. As a result of said fall and injuries therein sustained, plaintiff was totally disabled for a period of approximately nine months, during which she was confined to her bed and to a wheel chair.
"26. As a result of said fall and said injuries, it was necessary for plaintiff to submit, and she did submit, to laboratory tests, which involved sticking her with a needle and taking blood from her body, every day for forty-five days immediately following said fall.
"27. Although it has been approximately two years since said fall, plaintiff still limps and hobbles, being forced to favor her right foot and hip and to drag her right leg. She is unable to sustain her weight on her right foot. She walks with great difficulty and usually requires the assistance of a cane whenever she goes outside the house. Her right arm is twisted and her right hand is shriveled, withered and drawn. Plaintiff is nervous, depressed, easily upset, emotionally disturbed and is completely unable to adjust herself to the prospect of remaining an invalid for the rest of her life. All of the conditions described in this paragraph are the result of said fall and are permanent.
"28. As a result of said fall and the injuries to plaintiff caused thereby, it has been necessary for plaintiff, in an effort to cure herself and care for herself, to incur certain expenses, all of which were necessary and reasonable. Plaintiff attaches hereto an itemized list of said expenses which she has incurred, which is hereto attached, marked Exhibit 'A', and made a part hereof by reference as full as if the same were set out herein.
"29. Plaintiff alleges that as a part of the medical treatment necessary for her as a result of said fall and the injuries therein sustained, it will be necessary for her to have her right arm rebroken and reset. Such surgical procedure will cost plaintiff approximately one thousand dollars, which is a reasonable charge for the services and treatment involved in such procedure.
"30. As a result of said injuries, plaintiff has suffered prolonged and excruciating pain, and will continue to suffer excruciating pain for the rest of her life.
"31. As a result of said injuries, plaintiff is permanently disabled.
"32. Defendants are guilty of the following acts of negligence, which acts of negligence constituted the proximate cause of the plaintiff's fall and the injuries which resulted directly therefrom: (a) Covering the surface of said library floor with a slick and slippery surface, and maintaining said floor in such condition. (b) Failing to provide a hand rail on, or adjacent to said steps for the protection and convenience of people using said outside library door and steps, and maintaining said steps without such a hand rail. (c) Failing to illuminate said outside light above the library steps, rendering it difficult for plaintiff to see anything as she emerged from said library door. (d) Placing and maintaining over said library rug and said slick and slippery floor, a loose and unattached muslin runner, thereby causing plaintiff to slip and lose her balance. (e) Causing said muslin runner, at a point adjacent to said outside door, to become folded and rumpled, so as to extend several inches above the surface of the slick and slippery floor, and maintaining said runner in such condition. (f) Failing to warn the plaintiff of the conditions herein described, and each of them. (g) Failing to warn the plaintiff of the hidden or latent danger existing because of the conditions herein described, and each of them. (h) Failing to provide, in the construction of said room and said steps, a landing outside the library door, where a person could step or stand while closing said door, and before starting down said steps and maintaining said steps without such a landing. (i) Furnishing and maintaining a library door equipped with such a strong and stiff spring that it was extremely difficult for a person to open said door, requiring plaintiff to exert her strength and weight against said door in order to open it.
"Wherefore, plaintiff prays that process issue requiring the defendants, and each of them, to appear and file their defensive pleadings within the time required by law; that a copy of this petition and said process be served upon each of the defendants in the manner provided by law; and that plaintiff do have and recover a judgment against defendants for her pain and suffering, both past and future, her special damages or expenses as herein set out, her temporary total disability, her permanent partial disability, her inability to work or labor, both past and future, and her future medical expenses, in the sum of one hundred thousand dollars ($100,000)."
The demurrers of Martin Theatres of Georgia, Inc. and Martin Theatres of Columbus, Inc. as corporations and as a partnership doing business under the name and style of Martin Theatres read as follows:
"1. Defendants demur generally to the petition upon the ground that the same is insufficient in law and fails to state a cause of action against these defendants.
"2. Defendants specially demur to the use of the word 'conspiracy' in paragraph 8 of the petition, said word having been used twice therein, upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition, and upon the further ground that the same is prejudicial to these defendants and inflammatory, defendants pointing out the word 'conspiracy' carries the connotation of criminality, and that nowhere in said petition is there set out any facts upon which to predicate any showing of criminality or criminal intent on the part of these defendants. Defendants move that the court order said word physically expunged and deleted from said paragraph.
"3. Defendants specially demur to paragraph 9 of the petition, with particular reference to the allegation contained therein that 'at all times herein related, the status of the plaintiff was that of a guest and invitee,' upon the grounds that the same constitutes a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition in that there is no allegation of fact in said petition which would be sufficient upon which to base said conclusion, and defendants move that said allegation be ordered stricken and physically expunged from said petition.
"4. These defendants specially demur to paragraph 13 of the petition, with particular reference to the following allegation contained therein 'that part of the floor between the edge of the rug or carpet and the door leading to the outside patio was slick and slippery,' upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition, and upon the further ground that the same is vague, indefinite and uncertain, defendant pointing out that there is nowhere alleged in said petition what, if anything, was present at said time and place which would render the floor surface slick and slippery.
"5. Paragraph 14 of the petition is specially demurred to by these defendants, with particular reference to the following allegation, 'the aforesaid slick and slippery floor,' upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition, and upon the further ground that the same is vague, indefinite and uncertain, defendant pointing out that there is nowhere alleged in said petition what, if anything, was present at said time and place which would render the floor surface slick and slippery.
"6. Defendants specially demur to subparagraph (a) of paragraph 32 of the petition, upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts, and upon the further ground that said allegation is vague and indefinite in that there is nowhere set out in said petition what, if anything, was present at said time and place which rendered the floor a slick and slippery surface, defendants further pointing out that, under the allegations of the petition said subparagraph (a) does not allege any negligence having a proximate causal connection to the plaintiff's fall.
"7. Defendants specially demur to subparagraph (b) of paragraph 32, upon the ground that the same is irrelevant and immaterial, and upon the further ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said subparagraph or elsewhere in the petition, defendants pointing out that under the allegations of the petition the allegations set out in subparagraph (b) of paragraph 32 cannot have any proximate causal connection with the plaintiff's fall, as alleged.
"8. Defendants specially demur to subparagraph (c) of paragraph 32 of the petition, upon the ground that the same is irrelevant and immaterial, and upon the further ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said subparagraph or elsewhere in the petition, defendants pointing out that under the allegations of the petition the allegations set out in subparagraph (c) of paragraph 32 cannot have any proximate causal connection with the plaintiff's fall, as alleged.
"9. Defendants specially demur to subparagraph (d) of paragraph 32 of the petition, with particular reference to the allegations contained therein, 'said slick and slippery floor,' upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition, and upon the further ground that the same is vague, indefinite and uncertain, defendants pointing out that there is nowhere alleged in said petition what, if anything, was present at said time and place which would render the floor surface slick and slippery.
"10. Defendants specially demur to subparagraph (e) of paragraph 32 of the petition, with particular reference to the allegation contained therein, 'slick and slipper floor,' upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition, and upon the further ground that the same is vague, indefinite and uncertain, defendants pointing out that there is nowhere alleged in said petition what, if anything, was present at said time and place which would render the floor surface slick and slippery.
"11. Defendants specially demur to subparagraph (f) of paragraph 32 of the petition, upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said petition and is too vague and indefinite, in that said subparagraph alleges defendants to have been negligent in failing to warn plaintiff of alleged dangers, but fails to specifically enumerate and describe what supposed dangers are complained of.
"12. Defendants specially demur to subparagraph (g) of paragraph 32 of the petition, upon the ground that the same is a conclusion of the pleader in that there is nothing set out in said petition showing any of the defects alleged in said petition to have been hidden or latent defects, nor that the danger, if any, as alleged was hidden or latent.
"13. Defendants specially demur to subparagraph (h) of paragraph 32 of the petition, upon the ground that the same is irrelevant and immaterial, and upon the further ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said subparagraph or elsewhere in the petition, defendants pointing out that under the allegations of the petition the allegations set out in subparagraph (h) of paragraph 32 cannot have any proximate causal connection with the plaintiff's fall, as alleged.
"14. Defendants specially demur to subparagraph (i) of paragraph 32 of the petition, upon the ground that the same is irrelevant and immaterial, and upon the further ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said subparagraph or elsewhere in the petition, defendants pointing out that under the allegations of the petition the allegations set out in subparagraph (i) of paragraph 32 cannot have any proximate causal connection with the plaintiff's fall, as alleged.
"16. Defendants specially demur to paragraph 16 of the petition, with particular reference to the allegation contained therein, 'said steps were not provided or equipped with a landing at the head thereof, nor were they provided with a hand rail of any sort,' upon the ground that said allegation is irrelevant and immaterial to any issue in the case, defendants pointing out that under the other allegations of the petition, the failure to have a landing at the head of said steps and the failure to have a hand rail at said steps cannot have any causal connection with the plaintiff's fall, as alleged.
"17. Defendants specially demur to paragraph 17 of the petition, with particular reference to the following allegations contained therein, 'Inside the library, and on each side of the door leading to the outside, there was an electric lamp, which was lit and which gave forth a bright light. Although said house was provided with an electric light outside, and immediately above, said outside library door, so placed for the express purpose of lighting said outside steps, at all times herein related said light was dark and unlit. The effect of the inside lamps being lit and the outside light not being lit was to make it extremely difficult for plaintiff to see said steps and patio as she advanced toward them,' upon the ground that same is irrelevant and immaterial in that the alleged failure to have outside lights lighted, under the other allegations of the petition, cannot have any proximate causal connection with the plaintiff's fall, as alleged.
"18. Defendants specially demur to paragraph 18 of the petition, upon the ground that the same is irrelevant and immaterial and constitutes surplusage in that none of the allegations contained in said paragraph are relevant or material to the issues in said case, nor can said allegations, when considered in the light of the other allegations in said petition, have any causal connection with the plaintiff's fall, as alleged."
The demurrers of Roy E. Martin read:
"1. Defendant demurs generally to the petition upon the ground that the same is insufficient in law and fails to state a cause of action against this defendant.
"2. Defendant specially demurs to the use of the word 'conspiracy' in paragraph 8 of the petition, said word having been used twice therein, upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition, and upon the further ground that the same is prejudicial to this defendant and inflammatory, defendant pointing out that the word 'conspiracy' carries the connotation of criminality, and that nowhere in said petition is there set out any facts upon which to predicate any showing of criminality or criminal intent on the part of this defendant. Defendant moves that the court order said word physically expunged and deleted from said paragraph.
"3. Defendant specially demurs to paragraph 9 of the petition, with particular reference to the allegation contained therein that 'at all times herein related, the status of the plaintiff was that of a guest and invitee,' upon the grounds than the same constitutes a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition in that there is no allegation of fact in said petition which would be sufficient upon which to base said conclusion, and defendant moves that said allegation be ordered stricken and physically expunged from said petition.
"4. This defendant specially demurs to paragraph 13 of the petition, with particular reference to the following allegation contained therein 'that part of the floor between the edge of the rug or carpet and the door leading to the outside patio was slick and slippery,' upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition, and upon the further ground that the same is vague, indefinite and uncertain, defendant pointing out that there is nowhere alleged in said petition what, if anything, was present at said time and place which would render the floor surface slick and slippery.
"6. Defendant specially demurs to subparagraph (a) of paragraph 32 of the petition, upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts, and upon the further ground that said allegation is vague and indefinite in that there is nowhere set out in said petition what, if anything, was present at said time and place which rendered the floor a slick and slippery surface, defendant further pointing out that, under the allegations of the petition said subparagraph (a) does not allege any negligence having a proximate causal connection to the plaintiff's fall.
"7. Defendant specially demurs to subparagraph (b) of paragraph 32, upon the ground that the same is irrelevant and immaterial, and upon the further ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said subparagraph or elsewhere in the petition, defendant pointing out that under the allegations of the petition the allegations set out in subparagraph (b) of paragraph 32 cannot have any proximate causal connection with the plaintiff's fall, as alleged.
"8. Defendant specially demurs to subparagraph (c) of paragraph 32 of the petition, upon the ground that the same is irrelevant and immaterial, and upon the further ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said subparagraph or elsewhere in the petition, defendant pointing out that under the allegations of the petition the allegations set out in subparagraph (c) of paragraph 32 cannot have any proximate causal connection with the plaintiff's fall, as alleged.
"9. Defendant specially demurs to subparagraph (d) of paragraph 32 of the petition, with particular reference to the allegation contained therein, 'said slick and slippery floor,' upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition, and upon the further ground that the same is vague, indefinite and uncertain, defendant pointing out that there is nowhere alleged in said petition what, if anything, was present at said time and place which would render the floor surface slick and slippery.
"10. Defendant specially demurs to subparagraph (e) of paragraph 32 of the petition, with particular reference to the allegation contained therein, 'slick and slippery floor,' upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said paragraph or elsewhere in said petition, and upon the further ground that the same is vague, indefinite and uncertain, defendant pointing out that there is nowhere alleged in said petition what, if anything, was present at said time and place which would render the floor surface slick and slippery.
"11. Defendant specially demurs to subparagraph (f) of paragraph 32 of the petition, upon the ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said petition and is too vague and indefinite, in that said subparagraph alleges defendant to have been negligent in failing to warn plaintiff of alleged dangers, but fails to specifically enumerate and describe what supposed dangers are complained of.
"12. Defendant specially demurs to subparagraph (g) of paragraph 32 of the petition, upon the ground that the same is a conclusion of the pleader in that there is nothing set out in said petition showing any of the defects alleged in said petition to have been hidden or latent defects, nor that the danger, if any, as alleged was hidden or latent.
"13. Defendant specially demurs to subparagraph (h) of paragraph 32 of the petition, upon the ground that the same is irrelevant and immaterial, and upon the further ground that the same is a conclusion of the pleader unsupported by any properly pleaded facts in said subparagraph or elsewhere in the petition, defendant pointing out that under the allegations of the petition the allegations set out in subparagraph (h) of paragraph 32 cannot have any proximate causal connection with the plaintiff's fall, as alleged.
"15. Defendant specially demurs to paragraph 15 of the petition upon the ground that the allegations contained therein are irrelevant and immaterial to any issue in the case and constitute surplusage, defendant pointing out that under the other allegations of the petition, the matters alleged in paragraph 15 cannot have any proximate causal connection with the plaintiff's fall, as alleged.
"16. Defendant specially demurs to paragraph 16 of the petition, with particular reference to the allegation contained therein, 'Said steps were not provided or equipped with a landing at the head thereof, nor were they provided with a hand rail of any sort,' upon the ground that said allegation is irrelevant and immaterial to any issue in the case, defendant pointing out that under the other allegations of the petition, the failure to have a landing at the head of said steps and the failure to have a hand rail at said steps cannot have any causal connection with the plaintiff's fall, as alleged.
"17. Defendant specially demurs to paragraph 17 of the petition, with particular reference to the following allegations contained therein, 'Inside the library, and on each side of the door leading to the outside, there was an electric lamp, which was lit and which gave forth a bright light. Although said house was provided with an electric light outside, and immediately above, said outside library door, so placed for the express purpose of lighting said outside steps, at all times herein related said light was dark and unlit. The effect of the inside lamps being lit and the outside light not being lit was to make it extremely difficult for plaintiff to see said steps and patio as she advanced toward them,' upon the ground that same is irrelevant and immaterial in that the alleged failure to have outside lights lighted, under the other allegations of the petition, cannot have any proximate causal connection with the plaintiff's fall, as alleged.
The trial court overruled the general and special demurrers to the petition. It is to this judgment that the defendants filed exceptions to this court for review of the judgment of the trial court.
J. 1. The defendants contend that the court erred in overruling the general and special demurrers for three principal reasons: It is contended that the allegations of the petition show that the plaintiff was (a) a social guest and not entitled to recover; (b) a servant of the defendants and not entitled to recover; or (e) an invitee, and further that the allegations of the petition show that the injuries received by the plaintiff resulted from the failure of the plaintiff to exercise ordinary care for her own safety. We will discuss these contentions in the order named.
(a) In the contentions of the defendants regarding whether or not the plaintiff was a social guest on the occasion in question, no Georgia cases are cited but our attention is called to the rule of law concerning this question which prevails in other jurisdictions as follows: 25 A. L. R. 2d 600; Comeau v. Comeau, 285 Mass. 578 (189 N. E. 588); Gudwin v. Gudwin, 14 Conn. Supp. 147, and Laube v. Stevenson, 137 Conn. 469 (78 Atl. 2d 693). Our attention is called to the allegation of the petition that the defendants derived no direct pecuniary benefit from the party at the home of the defendant Roy E. Martin. In this connection counsel cite Krueger v. MacDougald, 148 Ga. 429 (96 S. E. 867) wherein it is held that on demurrer the petition must be construed most strongly against the plaintiff and if an inference unfavorable to the plaintiff can be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties. This rule is so well established, as counsel for the defendants contend, that it needs no further comment or authority.
One of the special demurrers filed in the case by counsel for the defendants was directed to the allegation that the plaintiff, Mrs. Carlton Henson, the mother of the defendant Roy E. Martin's wife, occupied the status of a guest and invitee. Counsel contend in the ground of this particular demurrer that it constituted a conclusion on the part of the plaintiff and that such conclusion is not supported by any allegations of fact. Counsel call our attention to Butler v. Jones, 85 Ga. App. 158, 161 (68 S. E. 2d 173) to sustain the contention on this point. Counsel also cite Jones v. Ezell, 134 Ga. 553 (68 S. E. 303) and Furr v. Burns, 124 Ga. 742 (53 S. E. 201). Counsel for the defendants discuss at great length Scheibel v. Lipton, 156 Ohio St. 308 (102 N. E. 2d 453). In that opinion there are numerous other decisions quoted and cited from jurisdictions other than Georgia. It is elementary that this court is not bound by decisions from other States, and further under the facts of the instant case, Scheibel v. Lipton, supra, and the cases discussed therein do not apply under the facts of this case to support the contention herein involved. After calling our attention to the decision immediately hereinabove cited, counsel for the defendants go into the question that since in the opinion of counsel for the defendants the status of the plaintiff was that of a social guest, that there was no duty owed to her other than as a licensee. Counsel for the defendants then argue regarding the duty owed a social guest (a licensee) and call our attention to Kinnebrew v. Ocean Steamship Co., 47 Ga. App. 704 (171 S. E. 385); Jones v. Asa G. Candler, Inc., 22 Ga. App. 717 (97 S. E. 112); McCall v. McCallie, 48 Ga. App. 99 (171 S. E. 843) and Flynn v. Inman, 49 Ga. App. 186 (174 S. E. 551). Kinnebrew v. Ocean Steamship Co., supra, differs from the case at bar in that there was no mutuality of interest shown. This is true also in McCall v. McCallie, supra. Flynn v. Inman, supra, holds that a licensee is owed no duty except that premises must not contain "pitfalls, mantraps, or things of that character". That principle of law is true but not applicable under the facts of the instant case. Jones v. Asa G. Candler, Inc., supra, is unlike the case at bar because there a nonsuit was granted for the reason that the plaintiff did not prove the allegations of the petitions, that she was in the building on business by express or implied invitation of the owner and not as a trespasser or licensee. That part of the reason for the nonsuit is of course not applicable to the facts of the instant case for the reason that we are not holding that the plaintiff in the case at bar was a licensee. However that case differs from the case at bar and is not applicable for the further reason that it was held in that case that the plain-
tiff could have avoided the consequences of the defendant's negligence by the use of ordinary care. Counsel comment and quote from the holding in Kinnebrew v. Ocean Steamship Co., supra, on this point, and thereafter counsel call our attention to Greenfield v. Miller, 173 Wis. 184 (180 N.W. 834) and Lewis v. Dear, 120 N. J. L. 244 (198 Atl. 887). In dealing with this contention counsel for the defendants base the argument on the major premise that the plaintiff was, under the allegations of the petition, a social guest or a mere licensee. We do not agree with counsel for the defendants that the plaintiff was a social guest or a mere licensee, under the laws of this State and under the allegations of the petition, and therefore hold that none of the cases cited apply to the allegations of the petition.
(b) The next contention of counsel for the defendants is that the plaintiff was a servant of the defendants and being a servant she assumed the risks of any negligence on the part of other servants of the defendants who, it is alleged, negligently placed the muslin cloth runner on a slick and slippery floor in preparation for the party and had caused the said runner to become pushed up against a door in such a manner that some of the folds of said runner extended one or two inches above the slick and slippery floor thus causing a dangerous condition. In this connection our attention is called to Code 66-301 regarding assumption of risks by servants. There seems to be no contention among counsel for the parties that Code 66-304 applies, and that the master is not liable in such a situation. Code 66-304 reads: "Except in case of railroad companies, the master shall not be liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business." The dissension on this point arises on the proposition as to whether or not the allegations of the petition authorize the conclusion on the part of the defendants that the plaintiff is a fellow servant of other servants of the defendants who placed the runner on the slick floor. We hold, as a matter of law, that the plaintiff does not come under the fellow-servant rule.
(c) This leaves one position, legally, in which to place the plaintiff under the allegations of this petition. It is our opinion that she was an invitee. As an invitee do the allegations of the petition show as a matter of law that the plaintiff failed to exercise ordinary care for her own safety? In this connection counsel call our attention specifically to paragraphs 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the petition as amended. Our attention is called to the following decisions (in this point: Huey v. Nix, 94 Ga. App. 498 (95 S. E. 2d 339); Holman v. American Automobile Ins. Co., 201 Ga. 454 (39 S. E. 2d 850); National Bellas-Hess Co. v. Patrick, 49 Ga. App. 280 (175 S. E. 255); McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 340 (15 S. E. 2d 797); Conaway v. McCrory Stores Corp., 82 Ga. App. 97 (60 S. E. 2d 631); McMullan v. Kroger Co., 84 Ga. App. 195 (65 S. E. 2d 420). The holdings in those cases do not apply, under the allegations of the petition in the instant case, so as to cause us to hold that the plaintiff was not an invitee.
Our attention is called next to the contention that in the petition as amended there are no allegations that the defendants or any one of them had any notice, actual or constructive, that the cloth runner involved "had been pushed up against the door in such manner that some of the folds of said runner extended between one inch and two inches above the aforesaid slick and slippery floor." However, in this connection the defendants admit that the petition in paragraph 19 alleges: "That all of the defendants had actual knowledge of all of the conditions herein alleged with reference to said door, library, grounds, steps, stone patio, and lighting system, and all of the items incidental and related to them to which reference is herein made." Our attention is called to Brown v. S. H. Kress Co., 66 Ga. App. 242 (17 S. E. 2d 758); Phillips v. Ray-Jean, Inc., 84 Ga. App. 38 (65 S. E. 2d 617); Hogg v. First National Bank of West Point, 82 Ga. App. 861, 864 (62 S. E. 2d 634). We have no difficulty in arriving at the conclusion that the plaintiff was not a social guest or a mere licensee. In our opinion the provisions of Code 105-401 and the decisions rendered by the appellate courts thereunder, according to the allegations of the petition in the instant case, control and authorize this conclusion.
Neither was the plaintiff a servant of the defendants. Code 105-401 provides: "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Since it is our opinion that the plaintiff was an invitee, the following cases are applicable to the allegations of the petition in the instant case: Henderson v. Nolting First Mortgage Corp., 184 Ga. 724, 736 (193 S. E. 347, 114 A.L.R. 1022); King v. Central of Ga. Ry. Co., 107 Ga. 754, 760 (33 S. E. 839); Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060); Jones v. Asa G. Candler, Inc., 22 Ga. App. 717, supra; Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462, 464 (118 S. E. 694); Coffer v. Bradshaw, 46 Ga. App. 143, 148 (167 S. E. 119); Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 291 (30 S. E. 2d 426); Rothberg v. Bradley, 85 Ga. App. 477 (69 S. E. 2d 293) and American Legion, Dept. of Ga. v. Simonton, 94 Ga. App. 184 (94 S. E. 2d 66).
The defendants owed the plaintiff, an invitee, ordinary care while she was on the premises, with knowledge of her presence thereon. See Charleston & N. C. Ry. Co. v. Johnson, 1 Ga. App. 441, 443 (57 S. E. 1064); Mandeville Mills v. Dale, supra; Rollestone v. Cassirer & Co., 3 Ga. App. 161, 167 (59 S. E. 442); Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490, 494 (118 S. E. 697); Atlantic Coast Line R. Co. v. Heath, 57 Ga. App. 763, 771 (196 S. E. 125); Banks v. Watts, 75 Ga. App. 769, 772 (44 S. E. 2d 510).
It is difficult to draw a line of demarcation as to whether or not one is negligent or lacking in ordinary care for his own safety. See Rothschild v. First National Bank of Atlanta, 54 Ga. App. 486 (188 S. E. 301) wherein this principle of law is expressed very well: "In deciding a question of this character, the fact is forced upon us from the many cases we have examined, and the variety of judicial conclusions reached upon similar states of facts, that precedents are of little value, but each case must stand on its own facts. There can be no doubt that it is a difficult problem for a court to declare as a matter of law that one is negligent or lacking in ordinary care for his safety." It was not incumbent upon the plaintiff to negative her own negligence or to show ordinary care on her part. Such were matters of affirmative defense for the defendants. See Hardwick v. Figgers, 26 Ga. App. 494 (106 S. E. 738), Pollard v. Hagan, 60 Ga. App. 581 (4 S. E. 2d 477), Ponder v. McKinzie, 89 Ga. App. 846, 850 (81 S. E. 2d 551), and Cobb v. Coleman, 94 Ga. App. 86, 92 (93 S. E. 2d 801). The plaintiff did allege (without being required to do so) that the dangerous condition could not have been discovered without a close inspection, and there was nothing to put the plaintiff on notice of the dangerous condition of the cloth runner. Counsel for the plaintiff cite Jones v. Hunter, 94 Ga. App. 316 (94 S. E. 2d 384). In that case it was alleged that the floor was so worn as to become slick and dangerous, said condition being known to the defendant but "invisible to the plaintiff without a close inspection . . . The slickened condition of the slanting floor caused the plaintiff's foot to slip and her heel to catch in the hole which caused her fall and resulting injuries. . . If the defect, though patent, is not of such a nature and character as necessarily to be seen in the exercise of ordinary care by a person coming upon the premises, and who has the right to rely upon the duty of the occupier of the premises to keep the premises safe, . . . an invitee coming upon the premises and using the [same] . . . without observing the defect, is tripped . . . and injured, is not, as a matter of law, guilty of negligence in not observing the defect. . . Ordinary care and diligence, as applied to the keeping of premises in safe condition, is a very elastic term, varying the quantum of actual caution to be exercised, according to the nature of the use to which the property is devoted . . . and whether the condition could have been discovered by proper inspection, were questions for the jury. Scott v. Rich's, Inc., 47 Ga. App. 548, 550 (171 S. E. 201); Macon Academy Music Co. v. Carter, 78 Ga. App. 37, 40 (50 S. E. 2d 626); and citations. Belk Gallant Co. v. McCrary, 88 Ga. App. 829, 833 (78 S. E. 2d 198). Under the rules stated in the foregoing cases, whether the alleged defects caused the plaintiff's fall and resulting injuries, and whether or not the defendant actually knew of the alleged defects, or in the exercise of ordinary care should have discovered and repaired them or warned the plaintiff of their presence, or whether the plaintiff in the exercise of ordinary care for her own safety should have discovered the defects in the floor and avoided them, are all questions for determination by the jury." There it was held that the case should go to a jury for determination. See also King Hardware Co. v. Teplis, 91 Ga. App. 13, 15 (84 S. E. 2d 686) wherein this court held: "He is not barred of a recovery simply because by extreme care on his part
it would have been possible for him to have discerned the articles negligently left in the aisles or passageways customarily used by the store patrons at the merchant's tacit invitation . . . it is a question for the jury as to what is required of the customer under the facts of each case." See also Scott v. Rich's, Inc., 47 Ga. App. 548, 551 (171 S. E. 201) wherein it is said: "The principle is too well settled to require a citation of authorities to support it, that mere knowledge of the danger of doing a certain act, without a full appreciation of the risk involved, is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk."
In Cobb v. Coleman, 94 Ga. App. 86, 90, this court said: "Questions of negligence and diligence, even as to gross negligence and slight diligence, as well as determination of what constitutes the proximate cause of an injury, and what amounts to a failure to exercise ordinary care on the part of a plaintiff are generally questions for the jury." Questions of negligence, whose negligence, and what negligence, except in plain and indisputable cases, are for the determination of the jury. The plaintiff might reasonably be assumed not to have had a full apprehension of the danger, her attention necessarily being upon opening the door and carrying something in her hand at the same time. In Glover v. City Council of Augusta, 83 Ga. App. 314, 317 (63 S. E. 2d 422) this court said: "If reasonable minds might differ upon the issue, it is a jury question as to whether conduct alleged to be negligent is in fact negligence. Georgia Power Co. v. Blum, 80 Ga. App. 618 (57 S. E. 2d 18). By the same reasoning, it is a jury question as to whether the plaintiff used the diligence of an ordinarily prudent person to apprehend the existence of such negligence, if reasonable minds might differ on that issue." And further, knowledge of defects should not be confused with knowledge of danger. See Rogers v. Sears, Roebuck & Co., 45 Ga. App. 772 (166 S. E. 64); Scott v. Rich's, Inc., 47 Ga. App. 548, supra; Krapf v. Sternberg, 48 Ga. App. 130 (172 S. E. 69); Firestone Service Stores v. Gillen, 58 Ga. App. 782 (199 S. E. 853); Belk-Gallant Co. of Cartersville v. McCrary, 88 Ga. App. 829, supra. One can not be continuously on the lookout for unsafe conditions. We can not say as a matter of law that the plaintiff was lacking in ordinary care for her own safety. These factors, under the allegations of the petition, as well as other questions of fact involved, are jury questions. The general rule that issues of negligence are peculiarly for the determination of the jury will be followed here. The plaintiff, being an invitee, because of mutuality of interest, was due ordinary care and it is for the jury to determine the issues of negligence. See Georgia Power Co. v. Sheats, 58 Ga. App. 730, 741 (199 S. E. 582); Lake v. Cameron, 64 Ga. App. 501, 505 (13 S. E. 2d 856); Morris v. Deraney, 68 Ga. App. 308 (22 S. E. 2d 860); Lane Drug Stores v. Brooks, 70 Ga. App. 878, 884 (29 S. E. 2d 716); Banks v. Watts, 75 Ga. App. 769 (2) (44 S. E. 2d 510); Townley v. Rich's, Inc., 84 Ga. App. 772 (67 S. E. 2d 403).
The trial court did not err in overruling the defendants' demurrers, both general and special, except special demurrer 2 regarding conspiracy. The allegation regarding conspiracy as twice used in paragraph 8 of the petition should have been sustained and the word "conspiracy" expunged from that paragraph of the petition and from the record in its entirety. Otherwise, the judgment of the trial court is affirmed.
Judgment affirmed in part and reversed in part. Townsend and Carlisle, JJ., concur.
Hatcher, Smith & Stubbs, contra.
Hurt, Gaines, Baird, Peek & Peabody, W. Neal Baird, T. J. Long, Ben Weinberg, Jr., for plaintiffs in error.
DECIDED MAY 1, 1957 -- REHEARING DENIED MAY 17, 1957.
Saturday May 23 01:53 EDT


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