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AMERICAN LEGION, DEPT. OF GEORGIA v. SIMONTON (two cases).
36168.
36169.
Tort; injuries to invitee. Before Judge Whitman. Fulton Superior Court. January 30, 1956.
NICHOLS, J.
The trial court did not err in overruling the defendant's motions to dismiss the petitions.
In case No. 36168 Mrs. Marie Simonton brought an action against The American Legion, Department of Georgia, in which she sought to recover damages for personal injuries alleged to have been suffered by her as the result of the negligence of the defendant corporation.
The petition as finally amended, in addition to the above, alleged substantially the following: That on August 21, 1953, the defendant owned and maintained a building at 1428 Ponce de Leon Avenue at which it operated its State headquarters, that the building faces a southerly direction, that it has a marble stairway leading into the front of the building, that it has a six-step flight of marble steps from a porch on the east side of the building leading to a driveway, that such marble steps on the east side of the building were of white marble but had become grayish brown and dirty looking from long use, that such steps were so smooth as to be almost slick even in the absence of any substance upon them, that at the time about the center of the first three steps and for a width of one or two inches there was a thin layer of amber-colored, almost white oil, that on said date, at about 10 in the morning, the plaintiff, who was a member of the American Legion Auxiliary, entered the building by the front entrance to participate in a function of the American Legion Auxiliary sponsored by the defendant and remained in the meeting until about 1 o'clock when she left the meeting by way of the east door leading to the steps on the east side of the building, that as the plaintiff was leaving the building and was going down the steps, she, without seeing the oil, stepped on it and her feet slipped out from under her, causing her to be thrown violently to the steps and down the remaining steps to the concrete driveway, causing her to be painfully and permanently injured, that the oil on the steps was so light in color and so similar in appearance and color to said steps that it was not apparent on casual observation to one using the steps to go in or out of the building, that she did not see or know of the oil on the said steps and could not have seen it or known of it without stooping and making an inspection, that the oil was on the steps for more than four hours before the plaintiff stepped on it and fell, that the defendant was negligent in allowing the oil to remain on the steps over which its patrons and members were required to walk and over which they were expected to walk in going in and out of said building when it knew, or in the exercise of ordinary care should have known, that the oil was there and that it created a situation dangerous to persons using the steps, that the defendant knew that said building was being used for the said meeting on said date and that members of the American Legion and others would be going in and out of said building on said date, and that the defendant was negligent in that it failed to properly inspect said steps to ascertain
whether they were reasonably safe for the plaintiff and others to use, and was negligent in failing to remove the said slick greasy substance from the steps. The injuries alleged to have been sustained by Mrs. Marie Simonton were then set forth and damages, as well as process and service were prayed for.
In case No. 36169 Ruel Simonton, the husband of Marie Simonton, sued the defendant for his damages resulting from the injuries alleged to have been sustained by his wife.
The defendant filed a motion to dismiss in the nature of a general demurrer to each petition. The trial court overruled these motions, and exception is made thereto.
1. The defendant, in support of its motions to dismiss, argues that Mrs. Marie Simonton occupied the position of a licensee and not an invitee, and that Code 105-402, which would make it liable only for a wanton or wilful injury, applies to the present case and not Code 105-401.
In order for Mrs. Marie Simonton to have occupied the position of an invitee on the defendant's premises at the time she received her alleged injuries there must have been some mutuality of interest in the subject to which her business related, although the particular thing which was the subject of the visit may not have been for the benefit of the defendant. See Hall v. Capps, 52 Ga. App. 150 (3) (182 S. E. 625), and cases cited. It was alleged that Mrs. Marie Simonton was a member of the American Legion Auxiliary, that she was on the defendant's premises attending a meeting of this organization which had been sponsored by the defendant, that the defendant expected its members and patrons to use the stairs being used by her when she received her alleged injuries. Therefore, since the defendant sponsored this meeting on its premises it cannot be said that the plaintiff did not occupy the position of an invitee on the defendant's premises when she allegedly received the injuries complained of. See Macon Telegraph Publishing Co. v. Graden, 79 Ga. App. 230 (53 S. E. 2d 371); and, Hanson v. Atlanta Lodge No. 78 B. P. O. Elks, Inc., 88 Ga. App. 116 (76 S. E. 2d 77).
2. The allegations of the petitions show a breach of the duty owed to Mrs. Marie Simonton, and that she was not aware of this breach of duty on the part of the defendant, and since the allegations of the petitions do not make it palpably clear that the alleged injuries to Mrs. Marie Simonton were the result of a failure on her part to exercise ordinary care for her own safety, the trial court did not err in overruling the motions to dismiss. See Young Women's Christian Association v. Barnett, 93 Ga. App. 322 (91 S. E. 2d 381).
Judgments affirmed in both cases. Felton, C. J., and Quillian, J., concur.
Arnold & Gambrell, W. H. Beck, Jr., contra.
Marshall, Greene & Neely, for plaintiff in error.
DECIDED JUNE 25, 1956 -- REHEARING DENIED JULY 12, 1956.
Saturday May 23 02:13 EDT


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