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NORMAN v. NORMAN.
37694.
Action for damages. Harris Superior Court. Before Judge Calhoun. February 24, 1959.
FELTON, Chief Judge.
The court did not err in overruling the general demurrer to the petition or in overruling any of the special demurrers except those treated in divisions 8 and 13 of the opinion and those of similar import to those treated in divisions 8 and 13.
Mary D. Norman sued Carrie E. Norman in the Superior Court of Harris County to recover damages for personal injuries allegedly caused by the negligence of the defendant. The petition as amended alleges in part as follows: "3. That the steps and porch or landing leading into the side entrance of defendant's house are constructed of uncovered bricks, having no nonskid covering; that there is no roof over the said steps or porch, and that said steps and porch are slippery and especially so when wet; that said porch is small, being only about four feet square; that the said porch is approximately four feet higher than the ground and has no guard rail on the porch and none on the steps. 4. On the date of March 26, 1958, and at all times herein alleged, defendant owned and had in her custody and control a large, heavy, muscular Doberman pinscher dog which was vicious and dangerous by nature and habit. Defendant had had possession of said dog for a long period of time, the exact length of time not known to plaintiff but well known to defendant. Because of its vicious and dangerous nature and habits said dog posed a threat and hazard to the safety of persons entering defendant's home through the rear entrance thereof, especially during a rainfall. These facts were well known to defendant but unknown to plaintiff. 5. That on the 26th day of March, 1958, at about 3 o'clock p.m., at the invitation of the defendant, plaintiff arrived at the home of the defendant and started up the steps to the side entrance of the defendant's home; that the said dog ran into plaintiff as plaintiff was about to enter the house; that the dog knocked plaintiff off balance and caused plaintiff to slip on the wet bricks and fall off the unprotected porch, causing the injuries hereinafter complained of. That the plaintiff, at the request and instance of the defendant, was doing certain sewing for the defendant's daughter who is the granddaughter of the plaintiff and came in the home of the defendant on this occasion at the invitation of the defendant in connection with such sewing and in order to fit the garments; that the plaintiff had done a great deal of sewing for the children of the defendant and always had an invitation to come to the home of the defendant for their mutual benefit for such purpose. 6. That the defendant did negligently allow the said dog to run at large, when the said defendant, during all that time, well knew that said dog was of a dangerous nature and posed a threat and hazard to the safety of persons entering said house as aforesaid. Defendant negligently and carelessly managed said dog in that she permitted said dog to go at liberty, without restraint, knowing the character of said dog, and that the injuries hereinafter alleged were sustained while said dog was at liberty, and resulted from said careless management. 7. That the said dog, while the said defendant so kept the same as aforesaid at West Point, in Harris County, Georgia, to wit, on the 26th day of March, 1958, did run into plaintiff, and did then and there trip plaintiff and cause her to slip on the wet porch and to fall, whereby plaintiff was injured as hereinafter described. 8. That the defendant
was negligent in failing to provide a handrail or guard on the porch which defendant knew to be slippery and dangerous and especially slippery when wet; which said negligence contributed as a proximate cause to the injuries of plaintiff. 9. Plaintiff shows that the defendant was negligent in failing to provide nonskid covering on said porch and steps, although having full knowledge that said steps and porch were slippery and dangerous and especially slippery when wet, which said negligence contributed as a proximate cause to the injuries of plaintiff. 10. Plaintiff slows that the defendant was negligent in allowing her dog to run at liberty when the defendant well knew that said dog would run into and against persons entering onto the porch of defendant's house, and which said negligence contributed as a proximate cause to the injuries of plaintiff. 11. That the injuries sustained by plaintiff were due to the negligence of the defendant, as hereinafter set forth, which acts of negligence hereinafter set forth directly and proximately caused the injuries and damages sustained by plaintiff: (a) Failure of defendant to provide a handrail or guard along the steps and porch of defendant's house, although said steps and porch were known to defendant to be slippery and dangerous, especially when wet, and although defendant knew the dangerous nature of the said dog as aforesaid, and the resulting hazard to the safety of persons entering upon said steps and porch especially when said porch was wet and a violent assault by said dog would cause one to be precipitated off said porch onto the ground below. (b) The defendant failed to provide a nonskid covering on the steps and porch of defendant's home although knowing that said steps and porch were, slippery and dangerous, especially when wet. (c) That the defendant failed to restrain the large dog on her premises although having actual knowledge that said dog was dangerous and would run into and against persons entering the steps and porch of defendant's home, and would cause said persons to be knocked from said porch to the ground below. (d) That the defendant failed to warn the plaintiff of the dangerous condition of the reps and porch on defendant's premises. (e) That the defendant failed to notify the plaintiff of the dangerous actions of defendant's dog, although defendant had invited plaintiff to said premises and knew plaintiff was present prior to and at the time said dog struck plaintiff. (f) In failing to maintain the premises in a safe condition having no regard to the actual and potential hazards then existing, to wit: the wet and slippery steps and porch which, with an attack by a dog known to defendant to be of a vicious and dangerous nature, made it impossible for plaintiff to remain on said porch and thereby avoid injury to herself. (g) In failing to exercise ordinary care and prudence over all the conditions then existing, and all of said acts of negligence on the part of the defendant contributed as a proximate cause to the fall and ensuing injuries sustained by plaintiff. 15. Defendant knew that plaintiff was sewing and making clothes for the benefit of defendant and defendant's daughter, and defendant further knew that on the very day plaintiff was injured as herein alleged plaintiff was planning to call by defendant's home for the purpose of fitting and delivering clothes to defendant. Notwithstanding defendant's expectation of plaintiff's arrival for said purpose, defendant took no precautions to confine or safeguard said dog and failed to warn plaintiff of the danger, threat and hazard posed by said dog. Plaintiff alleges that defendant's failure to confine or restrain said dog known to defendant to be of a dangerous nature as herein alleged, and defendant's negligent failure to warn plaintiff of the hazard and threat to her safety posed by the said dangerous and vicious nature of said dog, after defendant reasonably expected the arrival of plaintiff at defendant's home, constituted wilful and wanton negligence on the part of defendant, and said negligence was the proximate cause of plaintiff's injuries and damages. 16. Defendant knew of plaintiff's arrival on the premises of defendant, and after plaintiff's arrival defendant took no precautions for plaintiff's safety by confining or otherwise restraining said dog, or of warning plaintiff of the hazard and threat posed by the dangerous nature of said dog. Plaintiff alleges that defendant's negligent failure to confine, chain or otherwise restrain said dog known to defendant to be of a dangerous nature as herein alleged, and defendant's failure to warn plaintiff of the danger, hazard and threat to her safety
posed by the said dangerous nature of said dog, after defendant knew and was aware of plaintiff's arrival on the premises, constituted wilful and wanton negligence on the part of defendant, and the said negligence was the proximate cause of plaintiff's injuries and damages." The defendant filed general and special demurrers to the petition as amended. The court overruled the general demurrers and all of the special demurrers except four and the defendant excepted.
1. The special demurrers directed at the failure of the plaintiff to negative her own negligence were properly overruled. Atlanta Newspaper & v. Bell Transportation Co., 97 Ga. App. 787, 790 (104 S. E. 2d 545); Fish & Motor Car Co. v. Seymour & Allen, 9 Ga. App. 465 (1) (71 S. E. 764); Hardwick v. Figgers, 26 Ga. App. 494 (2) (106 S. E. 738); A. C. L. R. Co. v. Wildman, 29 Ga. App. 745 (4) (116 S. E. 858); Southern Ry. Co. v. Slaton, 41 Ga. App. 759, 761 (154 S. E. 718).
2. The special demurrers the grounds of which are that the plaintiff alleged mere conclusions that the dog was vicious and dangerous and that this fact was known to defendant and did not allege facts to support them were properly overruled. The petition alleged as a fact and not a conclusion that the dog was vicious and dangerous and that the nature of the dog was known to the defendant. These were allegations of ultimate facts and the pleading of evidentiary facts is not required. Williams, Standard Georgia Practice, Vol. 2, p. 89, 8; Lefkoff v. Sicro, 189 Ga. 554 (10) (6 S. E. 2d 687, 133 A.L.R. 738); Jackson v. Sanders, 199 Ga. 222, 227 (38 S. E. 2d 711, 159 A.L.R. 638); Dumas v. Dumas, 206 Ga. 767 (3) (58 S. E. 2d 830); Baker v. Goddard, 205 Ga. 477, 479 (53 S. E. 2d 754); Boney v. Cheshire, 147 Ga. 30 (2) (92 S. E. 636). The allegations in this case are that the dog was vicious and dangerous and that the defendant knew it. The allegations in Hays v. Anchors, 71 Ga. App. 280 (30 S. E. 2d 646) are quite different. It was not there alleged that the defendant actually knew the nature of the dog but only that the defendant should have known it, because the dog was a German police dog. See Greene v. Orr, 75 Ga. App. 673 (44 B. E. 2d 273); Georgia Power Co. v. Blum, 80 Ga. App. 618 (57 S. E. 2d 18); Shirley v. Standard Oil Co. of Kentucky, 172 Ga. 191 (1) (157 S. E. 267); Nelson v. Estill, 190 Ga. 235, 244 (9 S. E. 2d 73). Since actual knowledge is alleged as a fact, evidentiary instances of the dog's viciousness are not necessary.
3. The ground of the special demurrer directed at the plaintiff's failure to allege that the defendant did not invite the plaintiff into her house was properly overruled because the petition specifically alleges the invitation.
4. The ground of special demurrer directed at the failure of the petition to allege what monetary or other compensation the plaintiff received for sewing for the defendant was properly overruled. Monetary consideration is not essential to the relationship of owner or occupier and invitee. Common interest or mutual advantage is sufficient. Flint River Cotton Mill v. Colley, 71 Ga. App. 288, 291 (30 S. E. 2d 426).
5. Special demurrers 9(c) and (d) are: (9c) "Plaintiff fails to allege with what frequence and how often she made trips to defendant's house. (9d) "Plaintiff fails to allege whether the back door of defendant's house was used by her exclusively for ingress or egress or whether another entrance was also used in her visits." These demurrers called for the pleading of defensive matter and the court properly overruled them.
6. The special demurrer to the allegation in paragraph 8 of the petition, "which defendant knew to be slippery and dangerous and especially slippery when wet," on the ground that it was a conclusion of the pleader, was properly overruled. This is an allegation of ultimate fact. See authorities cited in division 2. This ruling also applies to the overruling of the special demurrer to paragraph 9 which makes the identical objection.
7. The special demurrers to paragraph 10 of the petition alleging that the defendant "well knew that said dog would run into and against persons entering onto the porch of the defendant's house" were properly overruled. The grounds are (a) that it is not alleged that the dog had run into and against anyone before, (b) that the names of the persons are not alleged, (c) that the allegation is a conclusion and (d) that the petition does not allege facts showing such knowledge. The allegation is one of ultimate fact. See authorities cited in division 2 and especially the statement distinguishing between the allegations in this case and those in Hays v. Anchors, 71 Ga. App. 280, supra. These demurrers are duplicated in different language in paragraphs 15, 16, and 17 of the demurrers which the rulings already made are sufficient to cover.
8. The court erred in overruling special demurrer 20 to the allegation in paragraph 11(e) of the petition that the defendant "knew plaintiff was present prior to and at the time said dog struck plaintiff" the ground of which was that the allegation is at variance with the allegation in paragraph 15 of the petition that "notwithstanding the defendant's expectation of plaintiff's arrival for said purpose" and "after defendant reasonably expected the arrival of the plaintiff at the defendant's home." The allegation as to expected arrival is contradictory to the allegation of actual knowledge of the arrival.
9. The special demurrer to paragraph 11 (f) is directed to the paragraph as a whole and was properly overruled. The specification of negligence concerning the vicious dog is supported by fact. The court sustained the special demurrer to paragraph 11 (d) concerning the dangerous condition of the steps and porch on the defendant's premises.
10. Paragraph 11 (g) of the petition is merely a general allegation of negligence and is not subject to the special demurrer the ground of which is that the allegations of the petition do not support it.
11. The questions involved in the overruling of the special demurrers to paragraph 15 of the petition have already been ruled on adversely to the plaintiff in error. Most of them involve the sufficiency of allegations of ultimate fact and the absence of the plaintiff's duty to plead evidentiary facts. If there are others, the rulings on similar demurrers suffice. The court properly overruled the demurrers.
12. Special demurrers 24, 25, 27 and 28 are duplications.
13. The allegations of the petition do not allege facts sufficient to charge the defendant with wilful and wanton misconduct, and special demurrer 26 should have been sustained.
These rulings cover all of the special demurrers argued and insisted on. 14. The petition alleged a cause of action good as against a general demurrer. Since the court sustained a special demurrer to specification of negligence 11 (d), the cause of action insofar as the defendant's negligence was concerned with the condition of the steps and porch is eliminated from the case.
The court did not err in overruling the general demurrer to the petition or in overruling the special demurrers dealt with in divisions 1, 2, 3, 4, 5, 6, 7, 9, 10 and 11. The court erred in overruling the special demurrers dealt with in divisions 8 and 13 of the opinion and in overruling the special demurrers of the same import as those dealt with in divisions 8 and 13.
ON MOTION FOR REHEARING.
In the case of Woods v. Simpson, 99 Ga. App. 538 (109 S. E. 2d 72), the petition did not allege that the defendant had actual knowledge of the dangerous nature and propensities of the dog and the ruling in that case is clearly distinguishable from that in the instant case.
Rehearing denied.
Morrow & Nix, Foley, Chappell, Kelly & Champion, contra.
Wyatt & Morgan, L. R. Morgan, James R. Lewis, for plaintiff in error.
DECIDED JUNE 11, 1959 -- REHEARING DENIED JULY 1, 1959.
Saturday May 23 00:51 EDT


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