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Lawskills.com Georgia Caselaw
BROWN et al. v. HALL et al.
32943.
Damages; from Fulton Superior Court-- Judge Pharr. December 8, 1949.
WORRILL, J.
The petition as amended, alleging that the plaintiff was invited by one of the defendant owners, engaged in the manufacture of a soft drink, to visit their plant (1) "to sample the products of manufacture and to inspect the machinery, equipment and operation of the plant" and (2) "at the same time to discuss with him the proposed sale of an automobile which the. defendant Pirkle was attempting to sell the plaintiff and his business partner, one Maddox, who was with the plaintiff at the time," and that while upon the premises in response to such invitation the plaintiff was injured in described particulars by reason of the collapse of a portion of the building which had been improperly and dangerously constructed by the owners, set forth a cause of action against the defendants and the court did not err in overruling all grounds of demurrer, Ben Hall brought an action in the Superior Court of Fulton County, Georgia, against C. M. Brown, Henry Pirkle and Armand May, the petition as amended, after certain portions of the petition had been stricken on special demurrer, alleging as follows: The defendants have injured and damaged the plaintiff in the sum of $25,000 by reason of the following facts: Valid, legal and binding provisions of the Building Code of the City of Atlanta, in full force and effect at the time complained of in the petition, are: Section 200: " 'Dead loads' means the weight of walls, partitions, floors, roofs, and all other permanent construction of a building. 'Live loads' means all loads except dead loads." Section 703-1 (a): "Every building and structure shall be designed and erected of sufficient strength in all its parts to sustain safely all live loads depending thereon, whether permanent or temporary, in addition to the dead loads." In 1947 the defendants owned a lot at the northwest corner of North Avenue and North Angier Avenue in the City of Atlanta, and during the latter part of the said year and early 1948 they erected or caused to be erected upon the said lot a concrete-block building. Upon completion of the building they occupied it and engaged in the manufacturing, processing, bottling and selling of a soft drink under the name and style of Mil-Kay Bottling Company, and they were so occupying the said building and so engaged in the said bottling business at all times herein complained of. The building so erected faces in an easterly direction along North Angier Avenue. In the erection and construction thereof the defendants built an overhead storage platform which extended in an easterly and westerly direction and was located directly over business offices used by the defendants within the building. The plans and specifications submitted by the defendants to the building official with the application for per. mission to erect the building did not provide for the storage platform which the defendants erected or caused to be erected within the building. The storage platform was built without the permission, sanction or consent of the building official, and the plans for the erection of the storage platform were never submitted to him, add it was not built under the inspection, super-
On the morning of May 3, 1948, the defendant Pirkle invited the plaintiff to the said plant, and the plaintiff called on him at the said premises on that date on or about 10:15 a.m., the nature of the invitation being more fully set out hereinafter. At the said time there were on the storage platform large quantities of drink cases and bottles, placed there by the defendants, their agents or employees, which load the platform was unable to support because of the defective conditions herein before set out. The plaintiff was extended an invitation by the said Pirkle to visit the plant to sample the products of manufacture and to inspect the machinery, equipment and operations of the plant, and at the same time to discuss with him the proposed sale of an automobile which the defendant Pirkle was attempting to sell the plaintiff and his business partner, one Maddox, who was with the plaintiff at the time. The said Pirkle was in charge of running the business for the defendants and the plaintiff was led by him to believe that the premises were intended to be used by visitors, and that the said use was not only acquiesced in by the defendants but it was in accordance with the intention and design with which the premises were allowed by the defendants to be used. Upon calling at the defendants' place of business the plaintiff was met by the defendant Pirkle, who told the plaintiff and the said Maddox to come into his office, and the plaintiff entered the office pursuant to the invitation then and there extended and in accordance with the invitation which had been extended as hereinbefore set out. The plaintiff had been in the office only a few minutes when suddenly, and without warning or notice, the said 2 x 10 boards completely gave way and pulled loose, separated and sheared off from one another and from the wall, and the said storage platform at the east end of the same was without support and fell onto and against the said ceiling, the ceiling collapsed, and the ceiling, platform, debris and bottles and crates which had been stored on the platform descended and fell upon the plaintiff, striking and hitting him and burying him beneath a mass of bottles, crates, plastering and debris, crushing and mashing him and severely injuring him, and he had to be extricated therefrom. The plaintiff did not know of the defective condition of the premises, and the defendants did not notify him of the same, and it was not visible to him on entering the premises or the office of the defendant Pirkle. By reason of being struck and buried by the said falling objects and debris the plaintiff was injured (as described in the petition). The plaintiff received medical treatment from Dr. W. A. Kelley and the medical expense in connection with the medical treatment, hospitalization, drugs, medicines and bandages amounted to $250. At the time the injuries were received the plaintiff was a partner in the business known as M. & H. Auto Sales Company, earning the sum of $1000 per month from the said business. Due to the said injuries he was away from his employment for a period of three months at a loss to him of $3000. On returning to the said business the plaintiff was unable to get about or drive an automobile, which is a necessity in his business, and it was necessary for him to hire a chauffeur to drive for him for a period of thirty days at a cost of $5 per day, or $150. The plaintiff was without fault and the direct and proximate cause of the injuries sustained by him was the negligence of the defendants in the following particulars: In not erecting the platform of sufficient design and structure so as to maintain safely all live loads depending thereon, in violation of Section 703-1A of the Building Code of the City of Atlanta, which was negligence per se; in not providing a secure brace on the east end of the storage platform; in not securely fastening the east end of the storage platform to the wall; in not anchoring the said 2 x 10 boards securely together and securely to the east wall to which they were nailed; in failing to properly support the east end of the platform; in using and maintaining the storage platform in a defective condition; in not rectifying the defective condition of the storage platform; in storing crates and bottles upon the platform in excess of the weight which the platform was able to support and maintain; in erecting or causing to be erected the said defective storage platform; in storing bottles and crates on the defective storage platform; in failing to warn the plaintiff of the defective condition of the premises; in maintaining a "man trap" on the premises; in inviting the plaintiff into the said "man trap"; in failing to warn the plaintiff of the said "man trap." The prayers were for judgment against the defendants and each of them in the sum of $25,000 and for process.
To the original petition the defendants, Brown and May, demurred on general and special grounds. The court struck some allegations of the petition in response to certain grounds of special demurrer, but overruled the grounds which were directed to other allegations, as follows: To the allegations of the petition that there were in full force and effect at the time of the plaintiff's injuries Sections 200 and 703-1, hereinbefore set out, of the Building Code of the City of Atlanta the said defendants demurred on the ground that they were not relevant or material to any issue in the case. To the allegation of negligence of the defendants in not erecting the storage platform of sufficient design and structure so as to maintain safely all live loads depending thereon, in violation of Section 703-1A of the Building Code of the City of Atlanta, which was alleged to be negligence per se, the said defendants demurred on the ground that the allegations were not relevant or material to any issue in the case and were not sufficient in law to show negligence per se on the part of the defendants. The said defendants duly filed exceptions pendente lite. Other grounds of the demurrer hereinafter referred to were not passed upon by the court. The plaintiff having amended the petition, the defendants, Brown and May, renewed the following grounds of their original demurrers: 1. The petition as amended fails to state a cause of action against the defendants. 2. The defendants specially demur (a) because there is a misjoinder of parties defendant, it not being alleged how or in what manner or for what reason the defendants are jointly liable to the plaintiff with the defendant Henry Pirkle; (b) because there is a misjoinder of causes Of action, it being the contention of the defendants that the allegations of the petition are not sufficient to show that they are joint tort-feasors with the defendant Henry Pirkle. The defendants Brown and May demurred on additional grounds as follows: The allegations show that at the time of his injury the plaintiff had made a personal call upon the defendant Henry Pirkle, and that as to the defendants Brown and May the plaintiff was a mere licensee; and (c) the allegations of the petition as amended are not sufficient to show that the defendants Brown and May violated any duty which they owed the plaintiff at the time of his injury, he being simply a licensee in so far as they were concerned. The court overruled the demurrers, and the defendants Brown and May excepted, assigning error on the said judgment and on exceptions pendente lite hereinbefore mentioned.
(After stating the foregoing facts.) The plaintiffs in error seek reversal of the judgment of the trial court on the theory that the plaintiff was a mere licensee on the premises, and that the defendants did not wilfully and wantonly injure him. The defendant in error contends, on the other hand, that he was clearly an invitee to whom the defendants owed ordinary care in keeping the premises and approaches safe. The 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." The Code, 105-402, provides: "A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification. The owner of such premises is liable to a licensee only for wilful or wanton injury." In Cook v. Southern Railway Co., 53 Ga. App. 723, 725 (187 S. E. 274), it was said: "The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee." See also Cobb v. First National Bank of Atlanta, 58 Ga. App. 160, 163 (198 S. E. 111). "Such owner or occupier of land is liable for a failure to warn his invitees of dangers or defects in such premises or instrumentalities, of which he knew or of which it was his duty to know in the exercise of ordinary care." Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (1-b) (116 S. E. 57). If a defective structure is built by the owner or under his direction, his knowledge of the defective condition will be conclusively presumed. Dobbs v. Noble, 55 Ga. App. 201, 203 (3) (189 S. E. 694); McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 337 (15 S. E. 2d, 797). How stands the case upon the application of these legal principles?
It is urged by the plaintiffs in error that the sole purpose of the visit of the plaintiff and his friend was to buy an automobile from Pirkle, and that the other interest was only incidental. We can not subscribe to that view. The petition alleges that in response to an express invitation from Pirkle, "who was in charge of running the business for the defendants," the plaintiff and one Maddox went upon the premises for two purposes: 1. "To sample the products of manufacture and to inspect the machinery, equipment and operation of the plant." 2. "At the same time to discuss with him [Pirkle] the proposed sale of an automobile which the defendant Pirkle was attempting to sell the plaintiff and his business partner, one Maddox, who was with the plaintiff at the time." If it be true that they went upon the premises to sample the products of manufacture, a soft drink, the fact that they were also interested in purchasing an automobile from Pirkle would not nullify the first named purpose or the status of the plaintiff. Hence, the question arises: Was the plaintiff an invitee in the process of entering upon the premises to sample the product in response to the invitation? To sample the "soft drink under the name and style of Mil-Kay Bottling Company" might readily be conceived as something of interest to the plaintiff. It is common knowledge that the public generally enjoys the consumption of soft drinks, and that sampling of a product often induces one to become its devotee. It requires no stretch of the imagination to suggest that associated with the generosity of the donor here was the hope, expectation and interest that the sampling would produce some benefit to it in the way of good will and customers. Thus the allegations here show facts and circumstances which would authorize the jury to find that the visit of the plaintiff was one of mutual benefit to him and the defendants and constituted him an invitee. It is further known that a portion of the building in proximity to that into which the plaintiff was conducted had been improperly and dangerously constructed, with the result that the overloaded platform fell upon the ceiling of the office into which the plaintiff had been led, and that the ceiling collapsed, and it, the platform, debris, bottles and crates, which had been stored upon the platform, fell upon and injured the plaintiff as described in the petition. The petition as amended set forth a cause of action against the defendants, and the court did not err in overruling all grounds of demurrer.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.
Dunaway, Riley & Howard, Herbert J. & Joseph F. Haas, contra.
W. Neal Baird, Neely, Marshall & Greene, for plaintiffs in error.
DECIDED JUNE 7, 1950. REHEARING DENIED JULY 7, 1950.
Saturday May 23 05:49 EDT


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