Cox v. De Jarnette, s. 39089

• Decision Date: 29 September 1961
• Docket Number: No. 1,39090,Nos. 39089,s. 39089,1
• Parties: Alma D. COX v. N. M. DE JARNETTE et al., Trustees. T. C. COX v. N. M. DE JARNETTE et al., Trustees
• Court: Georgia Court of Appeals

Page 16

123 S.E.2d 16

104 Ga.App. 664

Alma D. COX v. N. M. DE JARNETTE et al., Trustees.

T. C. COX v. N. M. DE JARNETTE et al., Trustees.

Nos. 39089, 39090.

Court of Appeals of Georgia, Division No. 1.

Sept. 29, 1961.

Rehearing Denied Oct. 18, 1961.

Syllabus by the Court.

1. The petition here alleges the existence of a liability insurance policy held as a non-charitable asset by a charitable institution. As the charitable assets of the trust will not be depleted by a judgment limited to the coverage afforded by this policy, the doctrine of charitable immunity does not apply to the extent of the insurance coverage. The petition states a cause of action in tort for personal injuries resulting from negligence of the trustees of the charitable trust to the extent of the coverage afforded by the liability policy.

2. (a) An action for private nuisance lies for invasions by injury to person or property affecting the use and enjoyment of land, including interest in the use and enjoyment of easements and profits. Here the alleged slippery condition of the steps of a church building did not constitute a private nuisance within this definition.

(b) A municipality is without power to change by ordinance the definition of a private nuisance as established by a general statute.

(c) A public nuisance is one which wrongfully affects the rights to which every citizen is entitled. The landing and steps of a church building allegedly negligently constructed do not constitute a public nuisance, as there is not a right common to all the public to use the steps and landing of a church building of a particular denomination.

3. A municipal ordinance, as pleaded in the petition, requiring that exterior stairways shall conform to the requirements of interior stairs 'in Section 604 * * * (c) Treads and landings shall be constructed in a manner to prevent persons from slipping thereon' was too vague and indefinite to be enforceable, as it does not give a sufficient guide to men of common intelligence.

4. Allegations in the petition that the steps and landing of a building when wet were slippery like glass, were certain to cause third persons to slip on them and fall, were inherently and intrinsically dangerous to third persons, were so negligently defective as to be imminently dangerous, created a hazardous and extremely dangerous condition, were perils to the life and limb of third persons, sufficiently alleges conditions which ordinarily prudent owners and occupiers of land would not, in the exercise of ordinary care, provide for their invitees. It is not essential that a petition in an action against the owner or occupier of the land for injuries sustained allege that the conditions which caused the injury were less safe than those provided by ordinarily prudent owners, where the petition sufficiently alleges conditions which make this fact apparent.

These are companion cases representing the actions of Mrs. Alma D. Cox for her own injuries and Mr. T. C. Cox, her husband, bringing his action for loss of his wife's services and for expenses incurred as a result of her injuries. Throughout the opinion the references are to the pleadings and demurrers in Case No. 39090, T. C. Cox v. N. M. deJarnette et al., Trustees, and the rulings apply equally to the corresponding demurrers in Case No. 39089. Counsel has stated that the questions are identical in the two cases, and the court so treats them.

Plaintiff T. C. Cox brought this action to recover for the loss of his wife's services and expenses in connection with her injuries against N. M. deJarnette, et al., as Trustees of the Inman Park Methodist Church. The petition charged that the named trustees held the legal title to the church and educational building of the Inman Park Methodist Church and the real estate upon which they were located; that these buildings and real estate were held by the defendant trustees for the church and the charitable purposes of the Methodist Church; that the educational building was constructed for the church during 1954, 1955, and 1956, and was accepted by the defendant trustees of the church from the building contractor on September 17, 1956; that from that date, and particularly on July 15, 1957, the date of the injury to petitioner's wife, the possession of the educational building, its steps and approaches, for the purpose of exercising supervision, oversight and care of the building, was in the defendant trustees as trustees of the church; that the pastor of the church was authorized to extend an invitation to all persons, including members of the church, to use the physical facilities of the church for religious purposes, including use of the prayer room; that petitioner's wife at the time of the injury was a member of the Board of Stewards and of the Committee of Membership and Evangelism of the church, and was secretary of the Christian Missionary Education of the church; that she performed the duties without salary or compensation; that she and the petitioner made regular monthly contributions to the church; that at the entrance of the educational building were front steps and a landing constructed by the defendants through the contractor; that such steps were constructed without a non-skid tread, but were troweled with a steel trowel so as to have a slippery surface; that, when the steps or landing were wet or damp with rain water, the steps and landing were slippery like glass; that they were a nuisance by which third parties would be injured when walking on them; that they were certain to cause persons to slip and fall, were inherently and intrinsically dangerous to third persons, were so negligently defective as to be imminently dangerous to third persons; that the steps and landing were accepted by the trustees without actual knowledge of the dangerous condition, but if they had exercised ordinary care, they would have discovered the dangerous condition of the steps and landing; that petitioner's wife on the day of the injury entered the educational building at a time when the steps and landing were dry in order to use the prayer room of the church; that a sprinking of rain fell upon the steps and landing and wet and dampened them while she was in the building; that in leaving the building, not knowing the steps were slippery and unsafe, her feet slipped and slid out from under her causing her to catapult down the steps, causing serious and permanent injuries.

The petition set forth ordinances of the City of Atlanta, providing as follows:

'* * * Exterior stairways shall conform to requirements of interior stairs in Section 604 * * *

'(c) Treads and landings shall be constructed in a manner to prevent persons from slipping thereon.'

and,

'(1) Conditions Constituting Nuisance. Any building structure, enclosure, place or premises is a nuisance where it is perilous to life or property by reason of its construction * * *.'

The petition charged the defendant trustees were negligent in causing the steps and landing to be constructed and maintained in such a manner as to be dangerous to life and limb of third persons when walking on them in damp or wet weather; in causing the steps and landing to be constructed contrary to and in violation of the alleged city ordinances; in failing to roughen the steps and landing so as to make them safe for persons walking on them in damp or wet weather, or applying an abrasive tread for the same purpose; in failing to correct the slippery surface of the steps and landing and thereby eliminate the condition which the petition charges was a nuisance.

The petition urges that the negligence alleged was administrative negligence of the trustees, chargeable to them in their capacity as trustees, and not chargeable to any subordinate employees of the trustees. The petition set forth the injuries to the petitioner's wife and the medical expense incurred for her, and prayed for these items as damages. The petition alleged that the defendant trustees held the title to the various properies for the benefit of the Inman Park Methodist Church, most of the property being dedicated and devoted to the charitable purposes of the church, but some of the property being held for noncharitable purposes, and 'that among the non-charitable assets to whcih title is held by defendant trustees on July 26, 1957, was and is an owner's public liability policy, issued by Dixie Fire and Casualty Company of the City of Greer, South Carolina, insuring defendant trustees for bodily injury liability to third persons for which the insured trustees shall become legally obligated to pay to third persons, such as your petitioner, arising out of the ownership, maintenance or use of the Church premises, and all operations necessary or incidental thereto.'

The final paragraph of the petition prayed for judgment against the defendant trustees as trustees to compensate for the full extent of the injuries, '* * * said judgment to be recoverable against all of the assets held in trust by the defendants, whether said assets be used for charitable or noncharitable purposes, to the extent as may be provided by law. Petitioner does not seek to subject any personal or individual assets owned by any of defendant trustees in their personal or individual capacities * * *.'

The defendants filed general demurrers to the petition and sixteen special demurrers, which are discussed in the opinion. The trial court sustained the defendants' general demurrers and dismissed the petition. All, or parts of all, of nine of the special demurrers were sustained, and all or parts of five special demurrers were overruled. Paragraph 10 of the special demurrer was overruled on the ground that paragraph 27(a) by incorporation of paragraph 17 of the plaintiff's petition was partly good and partly bad, and paragraph 10 being to the entire paragraph 27(a) with paragraph 17 incorporated, was bad in form. Paragraph 15 was overruled on the ground that paragraph...