Hall v. Capps

• Decision Date: 18 November 1935
• Docket Number: No. 24764.,24764.
• Citation: 182 S.E. 625,52 Ga.App. 150
• Parties: HALL. v. CAPPS.
• Court: Georgia Court of Appeals

52 Ga.App. 150

182 S.E. 625

HALL.

v.CAPPS.

No. 24764.

Court of Appeals of Georgia, Division No. 2.

Nov. 18, 1935.

Syllabus by the Court.

1. "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Code of 1933, § 105-401.

2. "To the licensee, as to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, man-traps, and things of that character;" the duty of the owner or occupier of the premises being merely not willfully or wantonly to injure him by deliberate act, or by negligence in permitting some extraordinary concealed danger to exist and failing to warn him thereof. Mandeville Mills v. Dale, 2 Ga.App. 007, 610, 58 S.E. 1060; Rolle-stone v. Cassirer & Co, 3 Ga.App. 161, 166-172, 59 S.E. 442.

3. It is well settled that in order for a visitor to occupy the status of an implied invitee, as distinguished from a mere licensee, "he must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the subject of the visit may not be for the benefit of the occupant." Central of Georgia R. Co. v. Hunter, 128 Ga. 600, 604, 58 S.E. 154; King v. Central of Georgia R. Co, 107 Ga. 754, 760, 33 S.E. 839; Jones v. Asa G. Candler, Inc., 22 Ga.App. 717, 719, 97 S.E. 112; all quoting with approval from Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am.Str.Rep 463. Like rulings as to implied invitees have been made in Cross-grove v. Atlantic Coast Line R. Co, 30 Ga. App. 462 (1, a), 118 S.E. 694; Petree v. Da-vison-Paxon-Stokes Co, 30 Ga.App. 490, 492, 118 S.E. 697; McCall v. McCallie, 48 Ga.App. 99, 101 (8), 171 S.E. 843.

4. The same rule as that just stated obtains where, as in this ease, a visit is made on express invitation, but the purpose of the visit is wholly disconnected with the business in which the occupant is engaged. Such an invitee occupies the status of a mere licensee. This ruling is dealt with in the opinion.

5. Under the preceding rules, no duty arose on the part of the defendant in the instant case to exercise ordinary care to the plaintiff in the condition of the premises; and no pitfall or other extraordinary peril being alleged, the petition failed to state a cause of action and the court did not err in dismissing it on general demurrer.

Error from Superior Court, Stephens County; B. P. Gaillard, Jr, Judger

Petition by B. M. Hall against T. A. Capps. To review a judgment dismissing the petition on general demurrer, plaintiff brings error.

Affirmed.

B. C. Williford, of Atlanta, and Thomas C. Burton, of Toccoa, for plaintiff in error.

John H. Davis & Son and C. M. McClure, all of Toccoa, for defendant in error.

JENKINS, Presiding Judge.

Although the plaintiff here sought to recover in one count on the theory that he was both an implied invitee and an express invitee of the defendant occupant of the premises, there was no special demurrer on the ground of duplicity, and the question stated in the fourth paragraph of the syllabus must be decided.

While the authorities are not uniform, their overwhelming weight is to the effect that an express invitation, like one implied, does not give to the recipient the legal status of an invitee, unless his visit is in some way connected with the business in which the occupant is engaged. The basis of the rule appears to be that an occupant of real estate ordinarily has the right and privilege of using it as he sees fit, without responsibility or liability, except from hidden pitfalls, to a visitor entering thereon merely for his own interest, curiosity, or pleasure, but the visitor must take the premises subject to any ordinary accompanying risks, the same as the occupant himself. Greenfield v. Miller, 173 Wis. 184, 180 N.W. 834, 12 A.L.R. 982, 984, 988; Knight v. Farmers' Gin Co, 159 Ark. 423, 429, 252 S.W. 30; Fleisch-mann Malting Co. v. Mrkacek (CCA. 7) 14 F.(2d) 602; Kinsman v. Barton & Co, 141 Wash. 311, 251 P. 563, 564; South-cote v. Stanley, 1 Hurlst. & N. 247 (156 Eng. Reprint) 1195; 19 Eng. Rul. Cas. 60; 38 Eng. L. & Eq. Rep. 195; 45 C. J. 824; 20 R.C.L. p. 59, § 60. As to cases which seem contra, see Pope v. Willow Garages, Inc., 274 Mass. 440, 174 N.E. 727; Ward v. Avery, 113 Conn. 394, 155 A. 502, 503.

It is true that' section 105-401 of the Code of 1933 contains the broad language that, "where the owner or occupier of land, by express or implied invitation, induces or leads others...