Bourn v. Herring

• Decision Date: 09 January 1969
• Docket Number: Nos. 24847,24851-24853,s. 24847
• Citation: 225 Ga. 67,166 S.E.2d 89
• Parties: Willeen BOURN v. Betty Ruth HERRING et al. R. Lloyd MATHIS v. Betty Ruth HERRING et al. R. L. MATHIS CERTIFIED DAIRY COMPANY v. Betty Ruth HERRING et al. GRANT PARK BAPTIST CHURCH v. Betty Ruth HERRING et al.
• Court: Georgia Supreme Court

Page 89

166 S.E.2d 89

225 Ga. 67

Willeen BOURN v. Betty Ruth HERRING et al.

R. Lloyd MATHIS v. Betty Ruth HERRING et al.

R. L. MATHIS CERTIFIED DAIRY COMPANY v. Betty Ruth HERRING et al.

GRANT PARK BAPTIST CHURCH v. Betty Ruth HERRING et al.

Nos. 24847, 24851-24853.

Supreme Court of Georgia.

Jan. 9, 1969.

Rehearing Denied Jan. 23 and Feb. 6, 1969.

Lokey & Bowden, Glenn Frick, Atlanta, for Willeen Bourn.

Freeman R. Hardisty, Frank Fuller, Atlanta, Ernest McDonald, Dalton, for Betty Ruth Herring.

Long, Weinberg & Ansley, Palmer H. Ansley, John K. Dunlap, Atlanta, for R. Lloyd Mathis.

O'Kelley, Hopkins & VanGerpen, H. Lowell Hopkins, Atlanta, for Grant Park Baptist Church.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

This is a damage suit brought by a mother for the wrongful death of her minor son over the age of 14 years who drowned while attending a church Sunday school picnic at a lake resort. The suit was brought against the church, the superintendent of the Sunday school, the defendant corporation which made the picnic grounds and lake resort available, and its general manager. The petition alleged that the public was invited to the picnic grounds and lake resort for advertising purposes and to promote the sale of the defendant corporation's products. For a detailed statement of the alleged facts, see Herring v. R. L. Mathis Certified Dairy Co., 118 Ga.App. 132, 162 S.E.2d 863. The Court of Appeals held that the petition stated a claim against all of the defendants. We granted certiorari. Held:

1. (a) The liability of the defendant corporation and its general manager is limited by the Act of the General Assembly of 1965 (Ga.L.1965, p. 476; Code Ann. §§ 105-403-105-409). As stated therein: 'Section 1. The purpose of this Act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes. * * * Section 3. Except as specifically recognized by or provided in section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes. Section 4. Except as specifically recognized by or provided in section 6 of this Act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby: (a) Extend any assurance that the premises are safe for any purpose. (b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed. (c) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons. * * * Section 6. Nothing in this Act limits in any way any liability which otherwise exists: (a) for wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. (b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof * * * Section 7. Nothing in this Act shall be construed to: (a) Create a duty of care or ground of liability for injury to persons or property. (b) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.'

As defined in Section 2(b), "Owner' means the possessor of a fee interest, a tenant, lessee, occupant or persons in control of the premises.' Code Ann. § 105-404(b). The defendant corporation and its general manager under the allegations of the petition come within this definition of 'owner.'

As defined in Section 2(c) "Recreational purpose' includes, but is not limited to, any of the following or any combination therof: hunting, fishing, swimming, boating, camping, picnicing, hiking, pleasure driving, nature study, water skiing, water sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.' Code Ann. § 105-404(c). The picnic and lake area made available in the instant case under the allegations of the petition come within this definition of recreational purpose.

Section 2(d) of the Act provides: "Charge' means the admission price or fee asked in return for invitation or permission to enter or go upon the land.' Code Ann. § 105-404(d). The affirmative allegations of the petition show that the picnic grounds and the lake thereon were made available to the public for advertising purposes and to promote the sale of the defendant corporation's products. We hold that these alleged benefits derived by the defendant corporation are not a 'charge' as defined by the Act.

Accordingly under the provisions of the Act of 1965 the defendant corporation and its general manager are liable only for wilful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity.

The Court of Appeals erred in Division 4 and that part of Division 5 of its opinion which held that the complaint stated a claim against these defendants under allegations showing the deceased was an invitee.

(b) The plaintiff cannot raise constitutional questions as to the validity of said 1965 Act for the first time in his brief in this court. 'Where it is sought to invoke a ruling by the Supreme Court on a constitutional question, the question must have been raised in the trial court and a ruling made thereon and the case brought to the Supreme Court for review.' Loftin v. Southern Security Co., 162 Ga. 730(3), 134 S.E. 760, 761; Law v. State, 219 Ga. 583, 134 S.E.2d 776; Wiggins v. City of Macon, 224 Ga. 603, 163 S.E.2d 747. This case does not fall within the exception made in ...