W. M. Hand sued Ernest L. Adamson, Jr., J. D. Vaughn, Mrs. Mabel Vaughn and Amos White for damages for the reasons set out below. The petition alleged in substance: that defendant Adam son is the owner of a place of business located approximately one-half mile north of the city limits of the City of Jonesboro, Georgia, on old U. S. Highway 41; that the defendant Adamson is engaged in the business of running a beer saloon and sells therein beer, cigars, tobacco, cigarettes, soft drinks, gasoline, etc.; that the defendant White is the holder of a license to sell beer at said premises, said license having been issued to White by the Board of County Commissioners of Clayton County, Georgia, on or about January 25, 1955; that said place of business is a public place and resort for recreation and that the patronage of the public is solicited and invited by said business; that the plaintiff went into said place of business for the principal purpose of drinking two or three bottles of beer and to operate for amusement a machine of skill owned by defendant Adamson known as a "bowling machine" and while so engaged and while conducting himself in a proper and orderly manner, a quarrel arose between the defendant Vaughn and a man named Stinchcomb, said quarrel between said parties lasting five or ten minutes, during which time defendant Adamson was present in said room and made no effort to stop the quarreling and cursing between said parties; that the defendant Vaughn grabbed Stinchcomb in the collar and led him from said room out of the front door of said place of business and on the ground immediately in front of said place of business; that after reaching the ground in front of said place of business, the defendant Vaughn pulled a pistol from his holster and commenced beating said Stinchcomb about the head with said pistol; that the plaintiff then left the room in which he had been and started walking towards his automobile with the intention of leaving the premises in said automobile and that just as he approached his automobile, a shot was fired from the pistol in the possession of the defendant Vaughn, the pistol being fired by Vaughn, and the bullet from the pistol struck the plaintiff in the left arm about midway between the elbow and shoulder, causing enumerated injuries; that said pistol was fired by Vaughn recklessly and wantonly in the direction where plaintiff and four or five other men were standing, without regard to injuring or killing one or more of those present and in complete disregard of human life; that at said time and place, said Stinchcomb was unarmed and no valid reason existed for the defendant Vaughn to have fired the pistol nor was there any reason for Vaughn to have drawn the pistol from his person; that all of said injuries and damages inflicted on the plaintiff by Vaughn were wilful and Wanton; that the defendant Adamson was present in said room when the quarreling and brawling between the defendant Vaughn and said Stinchcomb commenced and Adamson was present when the brawling, quarreling and fighting on the outside of the building commenced, and witnessed it, and the employees of the place of business who were likewise waiting on customers were also witnesses to the disorder; that notwithstanding a breach of the peace was imminent and actually committed neither the defendant Adamson nor any of his servants or agents made any effort to quell the disorder by personal interference or by calling the police; that Adamson and his servants and agents had ample notice and opportunity to interfere and prevent the continuation and culmination of the brawl and fight, but wholly neglected and failed to do so and to perform their duty for the protection of the plaintiff and other peaceable and orderly customers; that four or five persons, their names being unknown to the plaintiff but being Well known to defendant, were in and about said premises for a period of three to four hours prior to said shooting and that said four or five persons were drinking non-tax-paid corn whisky and that they had reached a state of drunkenness, all with the knowledge and consent of the defendant Adamson; that the proximate cause of said injuries and damages was the concurrent negligence of all defendants herein and that the defendant Adamson was particularly negligent as follows: In failing to keep his premises and approaches safe for persons lawfully coming upon the same; in failing to keep his premises free from persons known by him to be mean, unruly and vicious; in failing to suppress rowdyism on the part of persons and on and about his premises who were drunk and disorderly; in failing to exercise his right and to perform his duty of evicting from the premises persons causing disturbances, fights and violence; in allowing law viola-
tions to occur on his premises, namely, in allowing non-tax-paid whisky to be consumed on his premises, said act of negligence constituting negligence per se.
The defendant Adamson's general demurrer to the petition was overruled and he excepts.
The plaintiff bases his cause of action against the defendant Adamson on the ground that Adamson was negligent in not affording him the protection prescribed by law. "A customer of a 'soft drink', billiard and pool room, or other like place, is there by the invitation of the proprietor, and, while therein lawfully engaged, it is the duty of the proprietor to protect him from injury caused by the misconduct, not only of his own employees, but of other customers and third persons. If, therefore, there is any reasonable apprehension of danger to such a customer from the unlawful conduct of other customers or third persons, or if a personal injury from the misconduct of other customers or third persons can be prevented by the proprietor by the exercise of ordinary care and diligence, he may be guilty of negligence for his failure to use it, and consequently responsible in damages." Moone v. Smith, 6 Ga. App. 649 (1) (65 S. E. 712). In the Moone case the plaintiff entered the defendants' place of business for the purpose of amusement, and, while engaged in playing a game of pool, and conducting himself in a proper and orderly manner, a quarrel arose in the room among four or five men who were intoxicated. The quarrel among these men began in the rear of the room, some distance from where he was playing. They became disorderly and began cursing. Four of them, who were drunk, threatened to do violence to the person of one who was not drunk, and forced this one to retreat from one part of the room to another. This disorderly conduct continued for some ten or fifteen minutes, during which time there was a continuous brawl among the parties, and a consequent noise and disturbance was noticeable in all parts of the room. One of the defendants was present in the room during the entire continuance of this disorderly conduct and witnessed it, and the employees of the place, who were waiting on customers in various parts of the room, were also witnesses to the disorder. Notwithstanding a breach of the peace was imminent and actually committed, neither the proprietors nor any of their agents made any effort to quell the disorder by personal interference or by calling on the police. While this disorderly conduct was in progress, the plaintiff being in no way involved in it, continuing his game, relying upon the protection due him and the other peaceable and orderly customers from the proprietors, the difficulty reached its climax and the fighters suddenly precipitated themselves to the place where the plaintiff was standing, ran against him with such suddenness and violence that he was unable either to withdraw or to defend himself, and in the melee one of the drunken men engaged in the fight struck him a terrible blow in the eye, putting the eye entirely out and involving his other eye, threatening complete blindness. In that case the plaintiff charged that the proprietors and their agents had ample notice and opportunity to interfere and prevent the continuance and culmination of the brawl and fight, but wholly neglected and failed to do so and to perform their duty for the protection of the plaintiff and other peaceable and orderly customers.
The only difference between the Moore case and the instant case is that in the instant case the disturbance had moved from inside the defendant's place of business to his premises just outside the door and the plaintiff was injured while going to his car in an effort to leave the premises. This difference does not render the Moone case inapplicable here. This is a case where a jury must rule on the question of negligence and diligence. If the plaintiff was negligent in leaving the room after the disturbance had moved outside and in attempting to leave the premises in his automobile, such does not appear from the petition. What a reasonable and prudent man under similar circumstances would have done in the exercise of ordinary care is for a jury to answer.
Also see the cases of Savannah Theatres Co. v. Brown, 36 Ga. App. 352 (136 S. E. 478) and Hale v. Davis, 75 Ga. App. 819 (44 S. E. 2d 685).
The court did not err in overruling the general demurrer to the petition.