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Action for damages. Evans Superior Court. Before Judge Durrence.
FELTON, Chief Judge.
1. The plaintiff, while engaged in replacing in the defendant's store and out of the defendant's stock some burnt out light bulbs, of the type of which the plaintiff was a salesman, was an invitee as to the defendant, since there was an invitation by the defendant and a mutuality of interest and advantage in the object of the invitation.
2. Where an invitee is injured on premises, as here, the questions of negligence, except in plain and indisputable cases, are for the jury to determine under all the facts and circumstances.
Milton E. Findley brought an action in the Superior Court of Evans County against Rubin Lipsitz for damages for personal injuries alleged to have been sustained because of the defendant's negligence.
The petition as amended alleged substantially as follows: At approximately 11:45 a.m., April 20, 1960, the plaintiff, a full time salesman of electrical lighting fixtures and accessories employed by the Lustro Corporation of America, entered the defendant's retail department store to ascertain whether the defendant wished to buy any electrical lighting fixtures for use in the store. The plaintiff introduced himself to the defendant's wife, Mrs. Rose Lipsitz, who was at that time acting within the scope of her employment as the defendant's agent and servant in the operation of the store, and inquired as to whether the defendant needed any lighting fixtures or accessories. The store was lighted with bulbs of a type sold by the plaintiff and he offered to replace some 8 or 10 burnt out bulbs in the store from the defendant's stock, with the hope of obtaining orders for additional bulbs, from which he would receive a commission. He requested a ladder, which was given him by another of the defendant's employees at the direction of Mrs. Lipsitz. The ladder was wooden, about four feet high and had four steps, including a level top on which a person could stand. After having ascended and descended the ladder 8 or 9 times, replacing the dead bulbs with serviceable ones, the plaintiff slipped and fell off the ladder and sustained certain alleged permanent injuries to his right leg, the proximate cause of which being some "slick, slippery, waxy, greasy, colorless substance" which the defendant had allowed to accumulate and remain on the right end of the top of the ladder, on which the plaintiff's right foot slipped. He was unable to discover the presence of the substance through the exercise of ordinary care because it was not "readily visible," having "blended with the natural coloring of the ladder." At all times while the plaintiff was in the defendant's store on this date, the defendant was personally present and saw his wife, Mrs. Rose Lipsitz, who was his agent and servant, furnish the step ladder to the plaintiff and saw the plaintiff use it in replacing the light bulbs and made no objection to plaintiff's replacing the unserviceable bulbs or his manner of doing so. Furthermore, he made no objection to plaintiff's using said step ladder or to Mrs. Lipsitz's furnishing the ladder to the plaintiff to use and by the defendant's silence and acquiescence therein he ratified and approved her conduct. The defendant's alleged negligence consisted of having furnished the plaintiff with and allowing him to use a ladder having the concealed danger of the described substance on it, which ladder was in the defendant's exclusive custody and control, and in failing to warn the plaintiff of the dangerous condition.
The court sustained the general demurrer to the petition as amended, to which judgment the plaintiff in error excepts.
1. The liability of the defendant for the plaintiff's injuries occurring within the defendant's place of business is partially dependent upon the status of the plaintiff in the store. To support his contention that the plaintiff was merely a volunteer to whom the defendant owed only the duty not to wilfully and wantonly injure him, the defendant in error cites Early v. Houser, 28 Ga. App. 24 (2) (109 SE 914); Barber v. Rich's, Inc., 92 Ga. App. 880, 884 (90 SE2d 66); Carstarphen v. Ivey, 66 Ga. App. 865 (19 SE2d 341); and Callahan v. Carlson, 85 Ga. App. 4, 15 (67 SE2d 726). These cases are all distinguishable from the present case by the fact that the act or acts which the visitors were performing were either not sufficiently related to the owner's or occupant's business or were not for the visitor's benefit, as well as the owner's or occupant's benefit. The mutuality of interest required to make one on the premises of another an invitee does not mean that there must be a commercial business transaction between the parties, but merely that each party is moved by a lawful purpose or interest in the object and subject matter of the invitation; 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. Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 291 (30 SE2d 426); Norman v. Norman, 99 Ga. App. 755, 760 (4) (109 SE2d 900). "While the rule has been variously stated, it may be fairly said that the duty to keep the premises safe (not reasonably safe) exists as to all persons who for any lawful purpose come upon the premises at the express or implied invitation of the owner." Knudson v. Duffee-Freeman, Inc., 99 Ga. App. 520, 526 (109 SE2d 339) and cases cited. The plaintiff and the defendant shared a common interest and a mutual advantage in the plaintiff's replacing the burnt out bulbs. The defendant certainly benefited by having his store better lighted and the plaintiff derived a potential benefit by making his product and services known to the defendant, a prospective customer for these products and services. The fact that the plaintiff was not actually in a contractual relationship with the defendant at the time of the accident does not rule out the plaintiff's invitee status.
2. The plaintiff, being an invitee, because of mutuality of interest, was due ordinary care, and questions of negligence, whose negligence, and what negligence, except in plain and indisputable cases, are for the determination of the jury. Martin v. Henson, 95 Ga. App. 715, 738 (99 SE2d 251). 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 own safety. "The plaintiff need not negative the defense of contributory negligence in her petition, and it will not be dismissed on demurrer for this reason unless the petition affirmatively discloses facts demanding such conclusion as a matter of law. [cases cited]. In many cases where the plaintiff fell over or ran into an otherwise obvious defect or obstacle, the matter of contributory negligence was held to be a jury question because of allegations explaining that the obstacle was difficult to see because it blended in color with the ground or floor upon which it was resting or was otherwise obscured. [cases cited]." Redding v. Sinclair Refining Co., 105 Ga. App. 375, 377 (124 SE2d 688). "The general rule is that, where the minds of reasonable men may disagree as to the factum of negligence, or of whose negligence caused the injury, the jury and not the court is the proper instrument to evaluate the facts, and draw the proper conclusion. Georgia Power Co. v. Blum, 80 Ga. App. 618 (57 SE2d 18)." Redding v. Sinclair Refining Co., supra, at p. 377.
Although the petition alleged that the plaintiff had ascended and descended the ladder 8 or 9 times and therefore might have had an opportunity to notice the slippery condition, it was also alleged that the substance was not readily visible, so the issues of whether the defendant exercised due care in providing the plaintiff with a ladder on which there was a hazardous condition and of whether the plaintiff could have avoided the consequences of the defendant's negligence, if any, should have been submitted to a jury.
Judgment reversed. Bell and Hall, JJ., concur.
Lewis, Wylly & Javetz, Jack H. Usher, contra.
Charlton E. Clark, for plaintiff in error.
DECIDED MAY 11, 1962.
Friday May 22 22:50 EDT

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