Cobb v. First Nat. Bank Of Atlanta

• Decision Date: 01 July 1938
• Docket Number: No. 26902.,26902.
• Citation: 58 Ga.App. 160,198 S.E. 111
• Parties: COBB. v. FIRST NAT. BANK OF ATLANTA.
• Court: Georgia Court of Appeals

58 Ga.App. 160

198 S.E. 111

COBB.

v.FIRST NAT. BANK OF ATLANTA.

No. 26902.

Court of Appeals of Georgia,

Division No. 2.

July 1, 1938.

Syllabus by the Court.

1. "A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification." The petition in the present case shows that the plaintiff went into the defendant bank to obtain a blank promissory note for her own personal use, disconnected with any busi ness for or with the bank, and no mutuality of interest between the plaintiff and the bank was shown. The plaintiff was a licensee.

2. The owner of premises owes to a licensee a duty not to wantonly and wilfully injure him.

(a) To the licensee, as to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, mantraps, and things of that character.

(b) A licensee enters on the premises at his own risk, and the owner thereof owes him no duty as to the condition of the premises, unless imposed by statute, except that he should not knowingly let him run into a hidden peril or wilfully or wantonly cause him injury.

(c) The facts alleged in the petition, when properly construed on demurrer, did not show a condition of the premises constituting a pitfall, mantrap or hidden peril, or that the defendant in this case failed to exercise ordinary care which would amount to wilful and wanton misconduct.

3. The court properly sustained the general demurrer.

STEPHENS, P. J., dissenting.

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

Suit by Mrs. Daisy Cobb against the First National Bank of Atlanta for personal injuries sustained in fall on defendant's premises. To review a judgment sustaining defendant's demurrer to the petition, the plaintiff brings error..

Affirmed.

Louis M. Tatham, of Atlanta, Benjamin B. Garland, of Jackson, and Richmond Garland, of Atlanta, for plaintiff in error.

Neely, Marshall & Greene and W. Neal Baird, all of Atlanta, for defendant in error.

SUTTON, Judge.

Mrs. Daisy Cobb filed a suit for damages against the First National Bank of Atlanta. The petition was amended by alleging negligence in count one and by adding count two in which wilful and wanton misconduct was alleged. Defendant demurred to the petition as amended on the ground that no cause of action was set forth; thatplaintiff was no more than a licensee, and that no duty was owed to her by defendant except not to wilfully and wantonly injure her; that the petition set forth no cause of action growing out of wilful or wanton misconduct as therein alleged, and that plaintiff could have avoided the consequences of defendant's negligence. The plaintiff then amended her petition by striking count one, and relied on count two in which it was alleged: that the defendant is engaged in the general business of banking, and that as part of its banking business furnishes to the general public blank promissory notes; that about 3 p. m. on August 14, 1936, plaintiff went to defendant's bank to secure a blank promissory note; that the executive office and the business office of the bank are separated from each other by a gate; that after plaintiff had entered the executive office of the bank an officer of the bank, acting within the scope of his employment, invited plaintiff to enter the business office to secure the note; that this officer then instructed a guard employed by the bank to show plaintiff from the executive office into the business office; that the bank kept the guard at the gate for the purpose of opening and closing the gate to allow passage to and from the business office; that the guard opened the gate and invited plaintiff to pass through and said to plaintiff as he opened the gate, "Keep your eye on the bar above your head as you pass through the gate, " and that plaintiff as a result of this command did keep her eye and attention on the bar above her head as she started through the gate, and that plaintiff, as a result of this command, believed it to be necessary for her safety to keep her eye on the bar as she passed through the gate, and that she did keep her eye on the bar as she passed through the gate, and that she did not see the bar that ran along the floor at the bottom of the gate; that as plaintiff passed through the gate her foot unexpectedly struck against the iron bar which ran along the floor at the bottom of the gate, and as a result fell to the floor and suffered certain described injuries; that plaintiff did not know and had no warning that a bar ran along the floor at the bottom of the gate, and that it was impossible for plaintiff to see the bar on the floor with her eyes fixed on the bar above her head, and that plaintiff was lulled into believing that there was no danger at the bottom of the gate by the command of the guard to keep her eye on the bar above her head as she passed through the gate, and that the command was given as the gate was being opened, and that plaintiff had no opportunity to observe the condition of the gate prior to the time the command was given; that the gate is made of latticed iron and opens in the center with both sides folding back against the wall, and that the gate slides open and shuts upon two iron bars which run the entire length of the gate, one of the bars running along the top of the gate, and one running along the floor of the gate and protruding upward from the floor about two inches; that the bars are removable and that the gate is not completely open until the bars are removed, and that the bars were not removed at the time plaintiff was invited to pass through the gate, and that the gate with the bars not removed constituted a pitfall or mantrap as the defendant well knew; that plaintiff's injuries were due to defendant's wilful conduct, to-wit, in not removing the bars before inviting plaintiff to pass through the gate; in instructing plaintiff to keep her eye on the bar above her head as she passed through the gate, thereby directing her attention away from the bar running along the floor; in not warning plaintiff of the bar that ran along the floor in conjunction with the warning as to the bar that ran along the top of the gate; in maintaining a dangerous trap on the premises and in allowing a flange to stick up from the floor at the bottom of the gate at the time plaintiff was invited to pass through.

The court sustained the general demurrer to count two and dismissed the petition, and the exception here is to that judgment.

1. "A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification." Code, § 105-402. "The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some rela-tion which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee. Petree v. Davison-Paxon-Stokes...