Goettee v. Carlyle
| Decision Date | 12 November 1942 |
| Docket Number | 29546. |
| Parties | GOETTEE v. CARLYLE et al. |
| Court | Georgia Court of Appeals |
[Copyrighted Material Omitted]
This suit was brought for an alleged injury which occurred March 19, 1939. The original petition was filed February 19, 1940 against Robert T. Carlyle, Mrs. Emma L. Carlyle, and the Gold Star Ranch Park, Inc. The trial was held and the verdict rendered November 5, 1941. The judge directed a verdict for all of the defendants.
The material parts of the evidence were as follows: Carlyle and Mrs. Carlyle had leased by separate leases one piece of land to the Gold Star Ranch Park, Inc., and one piece to Gus Elsner and Philip Netzlee. These two pieces or tracts of land adjoined each other, and were deducted from the lot on which the Carlyles' dwelling was located. The plaintiff testified that the injury happened March 19, 1939, at He then testified to certain injuries which he claimed were brought about by the disrepair of the motor scooters' track or building, if one might wish to denominate it such. The witness further testified that Mr. Carlyle The witness further testified that on the occasion when he was injured he bought his ticket at a window from some lady at the scooter ride, or structure where he was injured.
Carlyle introduced a lease to the land upon which the scooter track was erected, which was as follows:
Carlyle testified: "Under this contract a motor scooter was operated out to this place." He did not build the motor scooter track but on the contrary it was built by Gus Elsner, one of the lessees in the written contract above referred to. He testified further that the lessees of this property
J. L. Auld, sworn for the defendant, testified that his father is not living at the present time, and that he and his father built the scooter track in question; that he never talked to Carlyle about anything with reference to the building of the scooter track, but that his conversation was with the lessee, Elsner; that he was paid for the work by Elsner, and did not receive any money from Carlyle. Carlyle testified that on April 1, 1939, the "Carlyle Casino" opened and the scooter ride was out there at that time; that on April 1 the following advertisement appeared in newspapers: "Gold Star Ranch Park, Inc., Most sensational free act, Ride the Rides, Merry-go-Round, The Whip, Lussie Scooter, Motor Scooter, Merry Mix Up, &c.", and that it also appeared several times subsequently.
McLaws, Brennan & Zeigler, of Savannah, for plaintiff in error.
Ernest J. Haar, of Savannah, for defendant in error.
MacINTYRE, Judge (after stating the foregoing facts).
1. The injury was alleged to be due to a structure erected by a lessee on the land owned by the Carlyles. "Carlyle," as hereinafter used, will refer to R. T. Carlyle, the husband, and Mrs. Carlyle will be designated as such.
A person who erects a building to be used as a place of amusement, if he be the proprietor or manager of such an amusement place of business, whether he be the owner of the land upon which it is located, or the owner of both the land and the building, or only the lessee in possession of the place of amusement, and who expressly or impliedly invites the public there, owes a duty to the public to use reasonable care in the construction of the building for the purpose for which it was constructed, to wit: the entertainment which was to be carried on in said structure, and to keep the building in repair, that is, to repair defects of which he knows or in the exercise of ordinary diligence ought to know. And hence, when this case was formerly before this court, Carlyle v. Goettee, 64 Ga.App. 360, 13 S.E.2d 206, the petition which, in effect, contained such allegation, was held good against the demurrers attacking it. See in this connection Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145, 4 S.E. 759, 12 Am.St.Rep. 244. But if on the trial the proof shows that the owner of the land merely leases it to an other and fully parts with the possession and the right of possession, thus becoming a mere landlord, and the lessee constructs a building, and the landlord has no notice of the building being defectively constructed or being in disrepair, he is not liable for defects in the structure. The probata would not agree with the allegata, and notwithstanding the allegations in the petition there could be no recovery. Childers v. Speer, 63 Ga.App. 848, 852, 12 S.E. 2d 439.
It would be rather a harsh rule to hold that, if A leases a piece of land to B and B takes possession and erects a structure thereon of which he has exclusive possession and control, and by reason of unsafe construction or...
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...§ 105-401; Moone v. Smith, 6 Ga.App. 649(2), 65 S.E. 712; Carlyle v. Goettee, 64 Ga.App. 360(1), 13 S.E.2d 206, further appeal 68 Ga.App. 288(1), 22 S.E.2d 854; Macon Tel. Pub. Co. v. Graden, 79 Ga.App. 230(1c), 53 S.E.2d 371; Rogers v. Atlanta Enterprises, Inc., 89 Ga.App. 903, 906, 81 S.E......
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