Bass v. Southern Enterprises, Inc.

• Decision Date: 10 June 1924
• Docket Number: 15289.
• Citation: 123 S.E. 753,32 Ga.App. 399
• Parties: BASS v. SOUTHERN ENTERPRISES, INC.
• Court: Georgia Court of Appeals

123 S.E. 753

32 Ga.App. 399

BASS v. SOUTHERN ENTERPRISES, INC.

No. 15289.

Court of Appeals of Georgia, First Division

June 10, 1924

Syllabus by the Court.

"In an action founded on negligence, mere general averments of negligence are sufficient as against a general demurrer." Trammell v. Columbus Railroad Co., 9 Ga.App. 98 (5), 70 S.E. 892.

Questions of diligence and of negligence address themselves peculiarly to the jury, and a court properly declines to solve them by decision on demurrer, except in plain indisputable cases. Southern Cotton Oil Co. v. Gladman, 1 Ga.App. 260 (8), 58 S.E. 249. "The question of what is ordinary care and what is negligence is one exclusively for the jury, and the court should not take this question from their consideration." Trammell v. Columbus Railroad Co., 9 Ga.App. 98 (6), 70 S.E. 892.

The court erred in sustaining the general demurrer to the petition.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by Mrs. W. C. Bass against the Southern Enterprises, Inc. Judgment for defendant on demurrer, and plaintiff brings error. Reversed.

Mayson & Johnson, of Atlanta, for plaintiff in error.

Underwood Pomeroy & Haas, of Atlanta, for defendant in error.

BLOODWORTH J. (after stating the facts as above).

It is the fixed law of this state that questions of diligence and of negligence, and of what is ordinary care, address themselves peculiarly to the jury, and that a judge should decline to solve them except in plain, indisputable cases. It is also well settled that "in an action founded on negligence, mere general averments of negligence are sufficient as against a general demurrer." This case does not present itself to the members of this court as a plain and indisputable one. Section 4420 of the Civil Code of 1910, is as follows:

"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 plaintiff was in the theater by invitation, and for a lawful purpose, and while there was injured. Where a person is on premises by invitation, lawlessness or wantonness on the part of the owner of the premises is not necessary to the existence of liability, but ordinary neglect from some act either of omission or...