Chambers v. Peacock Const. Co., 42515
| Decision Date | 04 April 1967 |
| Docket Number | Nos. 1,No. 42515,2,3,42515,s. 1 |
| Citation | 155 S.E.2d 704,115 Ga.App. 670 |
| Parties | J. D. CHAMBERS v. PEACOCK CONSTRUCTION COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The notice of appeal being filed within thirty days after entry of a judgment sustaining a general demurrer to the petition, the appeal is not premature.
2. A building contractor in possession and control of building premises is bound to take reasonable measures to protect persons on the premises by his invitation from injuries likely to arise from hidden defects in construction or places of unusual danger about the building, including a poorly lit, obscure elevator shaft.
3. Allegations that the plaintiff, a retail hardware supplier, delivered building materials and supplies at a construction site as requested and thereafter was injured inside the building under construction, where he went for the purpose of locating the general contractor's superintendent and reporting the delivery and taking new orders as he had done on several previous occasions, present an issue of fact whether the plaintiff was an invitee of the contractor in possession and control of the building premises. 4. The allegations show that the plaintiff was a licensee as to a subcontractor responsible for the installation and operation of the elevators in the building and working on the elevators in the elevator shaft.
The plaintiff brought this negligence action against the general contractor and one of the subcontractors engaged in building a hospital. The petition alleged that when the incidents recited occurred the defendants were in possession and control and management of the building premises and that the subcontractor had charge of and was responsible for the installation and operation of the elevators in the building and was working on the elevators in the elevator shaft. The petition contained substantially the following allegations. The three-story building was equipped with an elevator which operated in a shaft extending vertically from five feet below the level of the first floor to a vented chamber on the roof. The shaft was located approximately in the center of the building and was open and unprotected and there were no barriers, gates or other objects blocking access to it. There was a partition between the front entrance of the building and the shaft which greatly diminished natural light in the area around the shaft. There were under construction on the first floor many room entrances and door frames which resembled the entrances to the elevator shaft. The area of the building located at, near and around the elevator shaft was in a darkened condition and there was no artificial or electric lighting and very little natural light and the first floor near and around the eleator shaft appeared to be a dark color and resembled the appearance of the inside of the elevator shaft itself.
The plaintiff was in the retail hardware business, and went to the construction site to deliver cetain materials and supplies as requested and instructed by the defendants. The plaintiff had on several occasions before the time of this incident delivered materials and supplies to the construction site and after delivery would locate the superintendent in charge of construction who gave the plaintiff orders for additional materials and supplies, for the purpose of reporting the delivery of the supplies and to take new orders. After making delivery of the material and supplies on this occasion the plaintiff went into the building through the front entrance to locate the superintendent and to report the delivery and to determine if the superintendent wanted to place a new or additional order. As the plaintiff entered the first floor from the front entrance he passed through and along various interior entrances and door frames, all of them in a rough state of construction and resembling, by virtue of the gray color of the metal used in framing the said interior entrances and door frames, the entrances to the elevator shaft, such entrances to the elevator shaft on said date being outlined by a metal frame of the approximate color, size and shape of the metal frames of the said interior entrances and door frames. As the plaintiff came upon a point in approximately the center of the building he stepped through an opening resembling in appearance the door frames which he had previously passed by and through and was suddenly and without warning violently thrown to the bottom of a deep pit, which he later learned was a part of the elevator shaft, which was approximately five feet below the level of the first floor of the said hospital building. At this time the elevators in the shaft were located at a point above the first floor level. When the elevator or elevators were removed from the first floor level as they were at the time of the incident herein referred to, the elevator shaft became, from the first floor to the bottom of the said shaft, and open, unguarded, unprotected and unlighted pit five feet in depth, there being no barricades, doors, or other obstacles present to prevent entrance into said open pit or to warn of its existence. At the time the plaintiff fell he did not know of the existence of the open elevator shaft and could not have discovered it by the exercise of ordinary care. Both of the defendants well knew the location of the elevator shaft and knew that the area near and around it was dimly lit. Both defendants also knew that the floor area surrounding the elevator shaft was approximately the same color as the inside of said elevator shaft and knew that the metal framing in and around the said elevator shaft was constructed similarly to the interior room entrances and frames on the first floor of the hospital building. Both defendants also knew the elevator shaft was unlighted, unguarded, unprotected and that no barriers or other obstacles were placed in front of the entrances to the elevator shaft and knew that the elevator or elevators had been, at the time of the fall herein referred to, removed from said first floor level and that there existed an open, unguarded and dimly lit pit or mantrap at the first floor level. The following negligence of both defendants caused the plaintiff's injuries and damages: Failing to provide at or near the elevator shaft sufficient lighting, or signs giving warning of the open, unguarded shaft, or ropes, barriers or barricades at the entrances to the shaft; removing the elevator from the first floor level without protecting persons on the premises from the danger created thereby; failing to warn the plaintiff of the described latent danger of which the defendants knew.
The plaintiff appeals from the judgments sustaining the general demurrers of both defendants.
Reinhardt, Ireland, Whitley & Sims, Glenn Whitley, Tifton, Jones, Bird & Howell, Earle B. May, Jr., Atlanta, for appellant.
Gambrell, Harlan, Russell & Moye, Charles A. Moye, Jr., David A. Handley, Greene, Neely, Buckley & DeRieux, Burt DeRieux, C. Richard McQueen, Atlanta, for appellees.
1. Elevator Maintenance, Inc. filed a motion to dismiss the appeal on the ground that it is premature, and cited for its authority Black v. Miller, 113 Ga.App. 10, 147 S.E.2d 57; Luke v. Ellis, 201 Ga. 482, 40 S.E.2d 85; and Peyton v. Rylee, 191 Ga. 40, 11 S.E.2d 195.
The order in the Black case, supra, was not applicable for the reason that it did not carry a self-executing provision; that is to say, it did not provide as in the present case that in default of an amendment within the time allowed the petition should stand dismissed. See Echols v. Time Motor Sales, Inc., 111 Ga.App. 554, 142 S.E.2d 324; Black v. Miller, 114 Ga.App. 208, 150 S.E.2d 466.
The Luke case is distinguishable for the reason that it dealt with special demurrers. The Peyton case is distinguishable for the reason that it dealt with a motion for new trial. Here we have the sustaining of a general demurrer. Once a general demurrer is sustained as to the merits, the dismissal of the petition automatically follows as a matter of law and no language in the order expressly providing for dismissal is required. Blackwell v. Ramsey-Brisben Stone Co., 126 Ga. 812, 55 S.E. 968; Whidden v. City of Thomasville, 10 Ga.App. 194, 73 S.E. 45; O'Neal v. Miller, 9 Ga.App. 180, 70 S.E. 971. However, the result is different as to the sustaining of a special demurrer for the reason the petition whether amended or not remains pending until an express order of dismissal. Georgia Railway & Power Co. v. Kelly, 150 Ga. 698, 105 S.E. 300. The granting of leave to amend after the sustaining of a general demurrer is nothing more than 'a proposal on the part of the court to withdraw his judgment and revoke his judgment of dismissal if the petition already adjudged to be too weak was strengthened to the satisfaction of the court.' Lavenden v. Haseman, 157 Ga. 275, 279, 121 S.E. 646, 648. This type of order is treated as a final judgment from the date of its rendition but coupled with the right on the part of the plaintiff to bring about a reinstatement of the case by complying with the terms and conditions imposed. Waller & Co. v. Clarke, 132 Ga. 830, 64 S.E. 1096; Pratt v. Gibson, 96 Ga. 807, 23 S.E. 839; Speer v. Alexander, 149 Ga. 765, 102 S.E. 150; ...
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