Carter v. La Mance

• Decision Date: 14 January 1930
• Docket Number: 19843.
• Citation: 151 S.E. 406,40 Ga.App. 695
• Parties: CARTER v. LA MANCE et al.
• Court: Georgia Court of Appeals

151 S.E. 406

40 Ga.App. 695

CARTER v. LA MANCE et al.

No. 19843.

Court of Appeals of Georgia, First Division

January 14, 1930

Syllabus by the Court.

"The case clearly falls within the principle of Civil Code 1910, § 5515, which prevents the joining in one action of distinct and separate claims against different persons." Ansley v. Davis, 140 Ga. 616, 79 S.E. 454, 455. No breach of a common duty on the part of the city of Atlanta and the operators of the merry-go-round, La Mance and Mitchell, is alleged.

The petition fails to show the breach of any duty owed to the plaintiff by the city of Atlanta, and the city's demurrer to the petition was properly sustained.

The petition set out a cause of action against the defendants La Mance and Mitchell, and the court erred in sustaining their demurrer thereto.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by James Carter, a minor, by next friend, against George La Mance and others. Judgment for defendants, and plaintiff brings error. Affirmed in part, and reversed in part.

Bloodworth J., dissenting in part.

Wm. A Thomas, of Atlanta, for plaintiff in error.

Augustine Sams, C. Holland Feagan, Jas. L. Mayson, C. S. Winn, and J C. Savage, all of Atlanta, for defendants in error.

PER CURIAM (after stating the foregoing facts).

1. The petition, in so far as it relates to the city, shows that there is a misjoinder of parties as well as a misjoinder of causes of action, and that the case clearly falls under section 5515 of the Civil Code 1910. Citing several cases to support the proposition, Justice Atkinson, in Ansley v Davis, 140 Ga. 616, 79 S.E. 454, 455, said: "The case clearly falls within the principle of Civil Code, § 5515, which prevents the joining in one action of distinct and separate claims against different persons." No breach of a common duty on the part of both defendants is alleged. Battle v. Atlantic Coast Line Railroad Co., 132 Ga. 376, 383, 64 S.E. 463.

2. The petition fails to show a breach of any duty owed to the plaintiff by the city of Atlanta, and the city's demurrer to the petition was properly sustained.

3. The petition shows that defendants La Mance and Mitchell negligently maintained a dangerous attraction to children of tender years. A merry-go-round is, to children, attractively built, attractively painted, and attractively operated, and its operation may be dangerous under certain circumstances. It is built and operated for practically the sole purpose of alluring children and appealing to their childish instincts for curiosity and pleasure. The petition shows that, because of the nature of this dangerous instrument, the plaintiff, a child of tender years, was attracted to it, and, after being so attracted, his foot was crushed and mangled so that it was necessary to amputate his leg just below the knee, and he suffered great pain, injury, and damage, which pain, injury, and damage was attributable to the fact that defendants La Mance and Mitchell, knowing the nature of the dangerous instrument and that the object of its maintenance was to attract children, and that it was attractive to children, left said merry-go-round unlocked, and without any fence around it, and easily accessible to children, and without any guard, and left said cogs and cogwheels without proper boxing over and around them, and uninclosed and exposed, so that the plaintiff, a minor 11 years of age, could and did get his foot mangled and crushed. The petition alleges, in effect, that the defendants La Mance and Mitchell lured the child with and to an attractive but dangerous instrument, and then, through negligence, crushed his limb.

In American T. & T. Co. v. Murden, 141 Ga. 208, 80 S.E. 788, the petition alleged in brief that "the agents of two telephone companies, while engaged in repairing their lines of wire, placed a large chest in a certain warehouse. The chest was so constructed as to constitute a dangerous trap when it was left with the lid raised. The warehouse was located on the side of a public street in a town, near a railway station, the post office, a schoolhouse, and the residence of the plaintiff's father and other residences. *** The plaintiff, who was a child between two and three years of age, seeing the door open and the lid up, was attracted thereby, and, in seeking to investigate according to the natural instincts of a child, pushed the chain, and the lid fell upon him, injuring him. He was incapable of exercising care for his own safety, and the injury resulted from the negligence of the employees of the defendants in leaving the lid of the chest open and in a dangerous condition. Held, that the petition was not subject to general demurrer." (Italics ours.)

In Ferguson v. Columbus & Rome Ry., 77 Ga. 102(2), a little girl 10 years of...