Davis v. Garden Services, Inc., 59863

• Decision Date: 20 June 1980
• Docket Number: No. 59863,59863
• Citation: 155 Ga.App. 34,270 S.E.2d 228
• Parties: DAVIS v. GARDEN SERVICES, INC.
• Court: Georgia Court of Appeals

Page 228

270 S.E.2d 228

155 Ga.App. 34

DAVIS v. GARDEN SERVICES, INC.

No. 59863.

Court of Appeals of Georgia.

Argued May 5, 1980.

Decided June 12, 1980.

Rehearing Denied June 20, 1980.

James A. Elkins, Jr., Columbus, for appellant.

Dennis J. Webb, Robert C. Semler, Atlanta, for appellee.

DEEN, Chief Judge.

1. Davis filed suit against the appellee hotel owner for injuries sustained when he fell from a temporary bandstand in the defendant's ballroom. The ballroom had been rented for the evening to a private party which had engaged Davis and his band to play for the guests. Davis' injury, according to his testimony, occurred when, after he had placed some of the musical instruments on the bandstand, he attempted to step down from the stand and the metal stripping holding the carpet in place gave way, causing him to fall, as indicated by the fact that the metal strip, with screws in place, was found on the floor where the plaintiff fell.

It is obvious from the transcript of evidence that the trial court directed a verdict in favor of the defendant based entirely on the theory that Davis was a mere licensee as to whom the hotel proprietor owed no duty except not to wilfully and wantonly injure him. After a long colloquy the court summarized: "I think it all gets back to the basis of liability which has to be predicated on what did the licensee . . . There is clearly no evidence of any wilful or wanton conduct on the part of (the defendant). I'm going to grant the motion and direct a verdict."

This ruling was error. In the first place Davis had been employed by The American Association of Textiles, etc. to furnish a band to play for a party to be held in the defendant's ballroom, which the association had rented, and had entered the room to set up the instruments on the bandstand for this event. Obviously, an innkeeper has the duty of exercising ordinary care to keep its premises safe for invitee tenants. S. A. Lynch Corp. v. Greene, 99 Ga.App. 797, 109 S.E.2d 615 (1959). The guests of such tenants, those coming on the leased premises for business purposes beneficial to the tenant, and those doing business with him are there by his invitation and stand in his shoes insofar as they suffer injury due to the negligence of the owner or occupier of the premises. Wall Realty Co. v. Leslie, 54 Ga.App. 560, 188 S.E. 600 (1936). See also Rothberg v. Bradley, 85 Ga.App. 477, 69 S.E.2d 293 (1952); Hall v. Cohner, 134 Ga.App. 586, 215 S.E.2d 340 (1975). It is not essential that a direct contractual relation between the plaintiff and the owner be shown if the presence of the plaintiff is such that it should have been anticipated by the owner for the mutual benefit of the plaintiff and the owner's tenant. In Knudsen v. Duffee-Freeman, Inc., 99 Ga.App. 520, 109 S.E.2d 339 (1959), as here, the direction of a verdict in favor of the defendant on the ground that the plaintiff was a mere licensee was reversed because "while there must be at least some mutuality of interest in the subject matter to which the visitor's business relates, it is not necessary that the particular subject of the visit be for the benefit or...