Bonita Theatre v. Bridges

• Decision Date: 13 March 1924
• Docket Number: 15099.
• Citation: 122 S.E. 255,31 Ga.App. 798
• Parties: BONITA THEATRE v. BRIDGES.
• Court: Georgia Court of Appeals

122 S.E. 255

31 Ga.App. 798

BONITA THEATRE v. BRIDGES.

No. 15099.

Court of Appeals of Georgia, Second Division

March 13, 1924

Syllabus by the Court.

One who is in the control of a building which he uses as a show house, to which the public are invited for his profit, and who assumes the construction of the plastering therein, is liable to an invitee who is injured by the falling of the plastering because of defects in its construction, of which he had knowledge, or of which he ought to have known in the exercise of ordinary care.

(a) "Where something unusual happens with respect to a defendant's property, over which he has control, and by such extraordinary occurrence a plaintiff is injured (the occurrence being such as does not happen if reasonable care has been used), an inference may arise that the injury was due to the defendant's negligence. The maxim res ipsa loquitur is a rule of evidence, to be applied by the jury, if applied at all. The inference which may in some cases arise from an unexplained occurrence which has worked an injury to another, that the defendant who had in charge the instrumentality which was the direct cause of the injury was guilty of negligence, may or may not be drawn by the jury but, like the fact of negligence or no negligence, the inference which the jury may be authorized to draw is peculiarly an inference of fact." Sinkovitz v Peters Land Co., 5 Ga.App. 788 (2), 64 S.E. 93.

(b) The court did not err in instructing the jury in accordance with the principles expressed above.

(c) The jury were authorized to apply the maxim res ipsa loquitur in the instant case, and, from certain facts proved, to infer that the defendant was negligent as alleged. The defendant's rebuttal did not demand a finding that it was exonerated. The evidence authorized the verdict.

One of the excerpts from the charge of the court, complained of in the motion for a new trial, was in the language of the second headnote of the decision of this court in Moone v. Smith 6 Ga.App. 649, 65 S.E. 712, as follows: "The duty assumed by the owner of a place of amusement or recreation where the public are invited, for his profit and their pleasure, is analogous to that which the law imposes upon carriers of passengers, differing only in the standard of care required. In the latter, the standard is extraordinary care; and in the former, ordinary care." While language which would be appropriate in a headnote or in an opinion by a reviewing court may be improper when embodied in a charge to a jury, and while the comparison contained in this portion of the judge's charge in the instant case was irrelevant, the defendant was not prejudiced thereby. None of the assignments upon this or any other part of the judge's charge required the grant of a new trial. The court did not err in overruling the motion upon all the grounds taken.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by J. W. Bridges against the Bonita Theatre. Judgment for plaintiff, and defendant brings error. Affirmed.

W. O. Wilson, of Atlanta, for plaintiff in error.

Branch & Howard, of Atlanta, for defendant in error.

BELL J.

J. W. Bridges brought an action for personal injuries against the Bonita Theatre, a corporation, and recovered a verdict for $1,100. The defendant's motion for a new trial was overruled, and it excepted.

The injury sued for was caused by the falling of the overhead plastering in the defendant's theater building, in which the plaintiff, as an invitee, was attending a show. The petition averred that--

The "defendant was negligent, in that the said plastering was allowed to be on said overhead ceiling without being properly supported, in that there was nothing underneath said plastering to hold the same up, and the same was of an inferior quality of plastering material, being too brittle and not having the proper tensile strength, so that the keys thereto between the laths would hold the weight of said plastering, and in that the said plastering did not have sufficient fiber or hair in the same to give it the proper tensile strength necessary to support the weight of the same overhead."

There was no direct evidence to sustain these averments and it is urged by the plaintiff in error that the doctrine of res ipsa loquitur does not apply in this case; and that by reason of the failure of the plaintiff otherwise to make proof or even attempt to make proof of any of the acts of negligence set forth in his petition, the verdict is unsupported by the evidence, and that for this reason the motion for a new trial should have been sustained upon the general grounds.

The plaintiff testified that the piece of plastering that fell upon him was about four or six feet square. He could not say how deep it was, but it was a large piece. Mr. George Campbell, sworn for the defendant, testified:

"I am the manager of the Bonita Theatre. I remember the occasion when the plastering fell at that theater. * * * I think that plastering had been on that ceiling between six and seven years, but I don't remember how long. There was nothing on the plastering, such as a watermark or a leak, to indicate that there was anything the matter with it; there was nothing to show up. I don't know what made it fall, but there was nothing to show up, because every morning--it is a public place and I looked at it myself. Yes, there was something the matter with it to make it fall, but there was nothing to show up, a mark or anything. The fellow that put it up there is named George Goodrich, but he was killed last year in Jacksonville. I had it put up there six or seven years before, when they remodeled the house. I examined the plastering after it fell. I think it was about 3 foot square. That was a plastering with a sand finish, what they call a smooth sand finish; but I don't know the name of it. The theater is about 75 feet long and 23 feet wide. It is one solid ceiling up there with sand plastering. As to whether or not we have any strips or anything under the plastering, we have got it divided one or two, like this ceiling you see."

1. "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." Civil Code 1910, § 4420. The owner of a building is responsible to others for damages arising from defective construction.

Civil Code 1910, § 3694. While it was not shown in the evidence that the defendant was the owner of the building, the testimony of Mr. Campbell authorized the inference that it was responsible for the construction of the plastering which fell. It therefore makes no difference whether the defendant knew when the plastering was being constructed that it was defective. It was its absolute duty to know. Defective construction is misfeasance, and where there is absolute misfeasance, the party guilty thereof is ipsa facto chargeable with knowledge. Construction which is not strong enough to stand the strain of ordinary use is defective construction. Monahan v. National Realty Co., 4 Ga.App. 680 (1), 62 S.E. 127. The duty referred to is to be exercised, of course, under the rule of ordinary care.

The falling of plastering in a theater building is an unusual occurrence, although it may occasionally happen.

"Where something unusual happens with respect to a defendant's property over which he has control, and by such extraordinary occurrence a plaintiff is injured (the occurrence being such as does not happen if reasonable care has been used), an inference may arise that the injury was due to the defendant's negligence. The maxim res ipsa loquitur is a rule of evidence, to be applied by the jury, if applied at all. The inference which may in some cases arise from an unexplained occurrence which has worked an injury to another, that the defendant who had in charge the instrumentality which was the direct cause of the injury was guilty of negligence, may or may not be drawn by the jury; but, like the fact of negligence or no negligence, the inference which the jury may be authorized to draw is peculiarly an inference of fact." Sinkovitz v. Peters Land Co., 5 Ga.App. 788 (2), 64 S.E. 93.

We have no hesitancy in holding that the jury were authorized to apply the rule of evidence referred to in this decision, and to find that the defendant was negligent in the particulars alleged in the petition. The testimony introduced by the defendant with regard to the construction of the plastering was not such as to require a finding that the defendant was exonerated. The verdict was supported by the evidence. This ruling will dispose of the general grounds of the motion for a new trial, and also of ground 1 of the amendment to the motion.

In ground 2 of the amendment to the motion for a new trial error is assigned upon a charge of the court which was a verbatim restatement of the first sentence which we have quoted above from the decision of this court in the Sinkovitz Case, supra. It is assigned that the use of the clause shown in parentheses, "the occurrence being such as does not happen if reasonable care has been used," was in effect an expression of OPINION that the acts alleged would not have happened if reasonable care had been used. We do not think the expression was susceptible of this construction, but it was equal to this, "provided the occurrence be such as does not happen if reasonable care has been used," and that the jury must have so understood it. It is urged further that the charge was error because it excluded from the jury any consideration of the fact that the plastering might have fallen from...