Findley v. Lipsitz
| Decision Date | 11 May 1962 |
| Docket Number | No. 1,No. 39456,39456,1 |
| Citation | 106 Ga.App. 24,126 S.E.2d 299 |
| Parties | M. E. FINDLEY v. Rubin LIPSITZ |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The plaintiff, while engaged in replacing in the defendant's store and out of the defendant's stock some burnt out light bulbs, of the type of which the plaintiff was a salesman, was an invitee as to the defendant, since there was an invitation by the defendant and a mutuality of interest and advantage in the object of the invitation.
2. Where an invitee is injured on premises, as here, the questions of negligence, except in plain and indisputable cases, are for the jury to determine under all the facts and circumstances.
Milton E. Findley brought an action in the Superior Court of Evans County against Rubin Lipsitz for damages for personal injuries alleged to have been sustained because of the defendant's negligence.
The petition as amended alleged substantially as follows: At approximately 11:45 a. m., April 20, 1960, the plaintiff, a full time salesman of electrical lighting fixtures and accessories employed by the Lustro Corporation of America, entered the defendant's retail department store to ascertain whether the defendant wished to buy any electrical lighting fixtures for use in the store. The plaintiff introduced himself to the defendant's wife, Mrs. Rose Lipsitz, who was at that time acting within the scope of her employment as the defendant's agent and servant in the operation of the store, and inquired as to whether the defendant needed any lighting fixtures or accessories. The store was lighted with bulbs of a type sold by the plaintiff and he offered to replace some 8 or 10 burnt out bulbs in the store from the defendant's stock, with the hope of obtaining orders for additional bulbs, from which he would receive a commission. He requested a ladder, which was given him by another of the defendant's employees at the direction of Mrs. Lipsitz. The ladder was wooden, about four feet high and had four steps, including a level top on which a person could stand. After having ascended and descended the ladder 8 or 9 times, replacing the dead bulbs with serviceable ones, the plaintiff slipped and fell off the ladder and sustained certain alleged permanent injuries to his right leg, the proximate cause of which being some 'slick, slippery, waxy, greasy, colorless substance' which the defendant had allowed to accumulate and remain on the right end of the top of the ladder, on which the plaintiff's right foot slipped. He was unable to discover the presence of the substance through the exercise of ordinary care because it was not 'readily visible,' having 'blended with the natural coloring of the ladder.' At all times while the plaintiff was in the defendant's store on this date, the defendant was personally present and saw his wife, Mrs. Rose Lipsitz, who was his agent and servant, furnish the step ladder to the plaintiff and saw the plaintiff use it in replacing the light bulbs and made no objection to plaintiff's replacing the unserviceable bulbs or his manner of doing so. Furthermore, he made no objection to plaintiff's using said step ladder or to Mrs. Lipsitz's furnishing the ladder to the plaintiff to use and by the defendant's silence and acquiescence therein he ratified and approved her conduct. The defendant's alleged negligence consisted of having furnished the plaintiff with and allowing him to use a ladder having the concealed danger of the described substance on it, which ladder was in the defendant's exclusive custody and control, and in failing to warn the plaintiff of the dangerous condition.
The court sustained the general demurrer to the petition as amended, to which judgment the plaintiff in error excepts.
Charlton E. Clark, Savannah, for plaintiff in error.
Lewis, Wylly & Javetz, Jack H. Usher, Savannah, for defendant in error.
1. The liability of the defendant for the plaintiff's injuries occurring within the defendant's place of business is partially dependent upon the status of the plaintiff in the store. To support his contention that the plaintiff was merely a volunteer to whom the defendant owed only the duty not to wilfully and wantonly injure him, the defendant in error cites Early v. Houser, 28 Ga.App. 24(2), 109 S.E. 914; Barber v. Rich's, Inc., 92 Ga.App. 880, 884, 90 S.E.2d 666; Carstarphen v. Ivey, 66 Ga.App. 865, 19 S.E.2d 341 and Callahan v....
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Mitchell v. Gay, 41074
...invitation of the owner.' Knudson v. Duffee-Freeman, Inc., 99 Ga.App. 520, 526, 109 S.E.2d 339, 343 and citations; Findley v. Lipsitz, 106 Ga.App. 24, 26(1), 126 S.E.2d 299. See Mandeville Mills v. Dale, 2 Ga.App. 607, 610-611, 58 S.E. 1060. Without question plaintiff was an invitee on the ......
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Breedlove v. Csx Transp. Corp.
...632, 658 S.E.2d 137, 139 (2008). Two cases illustrate the application of the mutuality of interest test. In Findley v. Lipsitz, 106 Ga.App. 24, 126 S.E.2d 299, 301 (1962), an electrical appliance salesman who entered defendant's store to sell light bulbs had a mutual interest with the owner......
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Herring v. R. L. Mathis Certified Dairy Co., s. 43530
...that each party is lawfully interested therein, or that there is common interest or mutual advantage involved.' Findley v. Lipsitz, 106 Ga.App. 24, 26, 126 S.E.2d 299, 301. In short, monetary consideration is not essential to the relationship of owner or occupier and invitee since common in......
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...70 (1991), rev'd on other grounds, Bd. of Regents, etc. v. Daniels, 264 Ga. 328, 329, 446 S.E.2d 735 (1994). 12. Findley v. Lipsitz, 106 Ga.App. 24, 27(1), 126 S.E.2d 299 (1962). 13. Burkhead v. American Legion, etc., 175 Ga.App. 56–57, 332 S.E.2d 311 (1985). 14. See Holmes v. Achor Center,......