Ga. Power Co v. Deese, 32301.

• Decision Date: 11 February 1949
• Docket Number: No. 32301.,32301.
• Citation: 51 S.E.2d. 724
• Court: Georgia Court of Appeals
• Parties: GEORGIA POWER CO. v. DEESE.

51 S.E.2d. 724

GEORGIA POWER CO.

v.DEESE.

No. 32301.

Court of Appeals of Georgia, Division No. 1.

Feb. 11, 1949.

Rehearing Denied Feb. 26, 1949.

Syllabus by the Court.

1. The court did not err in overruling the general and special demurrers, withthe exception of the special demurrer shown in division two of the opinion.

2. The action here is one based on wilful and wanton misconduct and the allegation in the petition seeking to charge the defendant with the duty of keeping the premises in a safe condition as to a trespasser or licensee was subject to the special demurrer directed against it and should have been stricken.

Error from City Court of Albany; Clayton Jones, Judge.

Suit by Ethel Deese against Georgia Power Company for death of plaintiff's husband. To review a judgment overruling general and special demurrers to original petition and petition as amended, defendant brings error.

Judgment affirmed in part, and reversed in part.

Mrs. Ethel Deese sued the Georgia Power Company for damages for the homicide of her husband by drowning caused by the acts of agents of the power company in releasing a deluge of water held back by a dam while deceased husband was below the dam fishing in a boat. The original petition alleged substantially the following: That the defendant power company operated a power house and dam on the Flint River; that for a period of 20 to 25 years the defendant "allowed and invited the general public" to use waters below the dam for fishing purposes and that members of the public had done so for many years; that defendant had invited the public to use its property for the purpose of reaching fishing waters and had erected a sign which welcomed visitors and provided and kept up a road leading to fishing grounds for use of the public; that the use of the water below the dam for such purposes was known to defendant and his employees; that on the 21st day of April, 1948, plaintiff and her husband by invitation of defendant were engaged in the sport of fishing in a boat "just above a small island near the western shore of said Flint River"; that it has been the custom of employees of defendant when elevating the gates of said dam to allow the escape of excess water to warn people below of their intentions because when one or more gates is opened, a turbulence is created in the river causing waves from 2 to 3 feet high and creating a terrific current and eddy in waters below said dam causing boats to capsize and this fact was well known to defendant and its employees; that about 7:30 A.M. on this date two employees of defendant came out of the power house to the top of the dam and walked across top of said dam a distance of better than 430 feet for the purpose of obtaining a dolly used to raise the gates of said dam; that while said employees were walking to the east bank and while returning with the dolly, plaintiff and her husband were "plainly in the view of said employees" and said employees "saw plaintiff and her husband fishing from the boat in the calm water just above the island", but gave them no warning as to their intention; that gate 1 was raised releasing the impounded water causing a great turbulence which capsized their boat resulting in the death of plaintiff's husband by drowning; that plaintiff and her husband exercised ordinary care but could not avoid the death of her husband; that the acts of negligence were the proximate cause of the death of plaintiff's husband and the defendant was negligent (1) in failing to warn them of their intention to open said gate although plaintiff and her husband were seen by defendant's employees before they opened the gate, (2) in that defendant's agents saw them prior to the opening of said gate and "in spite of their' knowledge of the presence of plaintiff and her husband in the river below they opened said gate * * *" causing death of plaintiff's husband, (3) "These acts of defendant's servants were gross negligence and amounted to wilful and wanton negligence."

Defendant filed its general and special demurrers to the above petition. Whereupon, plaintiff, with leave of the court, amended her petition in the following manner: That the invitation on the part of defendant company consisted of acquiescence of defendant in allowing the general public to use such waters, and sign on propertyof defendant read as follows: "Entering Property of Georgia Power Co. Flint River Hydro-Electric Plant, Visitors Welcome" and that by reason of said sign and the acquiescence of the defendant, the general public has used said waters with consent of defendant; by alleging that they, after fishing for 20 minutes at a spot 150 yards distance from dam, moved boat to a point about 75 yards from dam and that "plaintiff and her husband were in full view of defendant's servants from the time said servants left power house until they opened said gate #1"; by alleging more specifically the events which took place immediately after the gate was raised until deceased's death; by adding that defendant owed plaintiff and her husband a duty of keeping premises in a safe and suitable condition because of custom; that "defendant was guilty of a lack of ordinary care and diligence" in raising said gate without warning them, and that defendant breached its duty of keeping premises in such a condition so as not to allow plaintiff's husband "to be injured because of a dangerous instrumentality, to wit, the opening of the gate on top of said dam without warning", and that defendant did through its wilful misconduct breach its duty of ordinary care owed to deceased by opening gate without warning and that defendant's servants knew...