Hall v. Davis

• Decision Date: 26 September 1947
• Docket Number: No. 31700.,31700.
• Citation: 44 S.E.2d 685
• Parties: HALL . v. DAVIS.
• Court: Georgia Court of Appeals

44 S.E.2d 685

HALL .

v.DAVIS.

No. 31700.

Court of Appeals of Georgia, Division No. 1.

Sept. 26, 1947.

Rehearing Denied Oct. 24, 1947.

Syllabus by the Court.

Whether the proprietor of a public restaurant was negligent in failing to exercise ordinary care in protecting the plaintiff as a customer from an unlawful assault made upon him by another customer who was drunk, quarrelsome and arrogant, and whose condition was known to the proprietor, and where the offending customer had caused some commotion and argument before injuring the plaintiff, was a question for the jury, and the court erred in deciding it on demurrer and in dismissing the case.

Error from Superior Court, Fulton County; Bond Almand, Judge.

Suit for damages by Paul Hall, Jr., against S. R. Davis, trading as Davis Brothers Restaurant, on account of assault made by plaintiff by another guest.A general demurrer was sustained to plaintiff's petition and the suit was dismissed, and plaintiff brings error.

Judgment reversed.

Geo. W. Willingham and Julian E. Gor-tatowsky, both of Atlanta, for plaintiff in error.

John M. Slaton, of Atlanta, for defendant in error.

PARKER, Judge.

This was a suit for damages brought by Paul Hall, Jr., against S. R. Davis, trading as Davis Brothers Restaurant.The plaintiff alleged that at the invitation of the defendanthe was a customer and guest of the defendant for the purpose of eating breakfast, in a restaurant conducted by the defendant in the city of Atlanta, about 2 o'clock A.M., on January 2, 1947, when he was assaulted and injured by another guest in the restaurant who was drunk; and that the defendant failed to exercise ordinary care in protecting the plaintiff as a customer from the misconduct of the other guest.The material parts of the petition are contained in five paragraphs as follows: "4.After plaintiff was seated defendant escorted another guest whose name is unknown to plaintiff to a booth about six feet from where plaintiff was sitting.5.This latter guest was drunk, quarrelsome and arrogant and this fact was known to the defendant.6.Nevertheless, defendant, with full knowledge of said guest's condition, not only permitted him to enter said restaurant but allowed him to remain.7.After causing some commotion and argument, said drunk-en guest without cause or justification threw a cup of coffee into the air violently striking plaintiff on the back of the head and neck causing him severe shock and pain.8.By virtue of the facts aforesaid plaintiff was damaged by the defendant in the amount of $500.00."

The defendant filed a general demurrer to the petition upon the ground that it did not set out a cause of action, and a special demurrer to paragraph 7.The court did not pass upon the special demurrer but sustained the general demurrer and dismissed the action, and the sole exception here is to that ruling.

Since the special demurrer was not ruled on by the trial judge, and error has been assigned on the sole ground that the court erred in sustaining the general demurrer and in dismissing the action, no ruling will be made by this court on the question raised by the special demurrer although counsel for the defendant refers to it in his brief.SeeThompson v. Mac-Neill, 184 Ga. 311(4), 191 S.E. 249.

In Moon v. Smith, 6 Ga.App. 649, 65 S.E. 712, it was held that it is the duty of the proprietor of a soft drink stand, billiard and pool room, or other like place, to protect a customer from injury caused by the misconduct of other customers and third persons; and that if there is any reasonable apprehension of danger to such a customer from the unlawful conduct of other customers or third persons, or if a personal injury from the misconduct of other customers or third persons can be prevented by the proprietor by the exercise of ordinary care and diligence, he may be guilty of negligence for his failure to use it, and consequently responsible in damages.That case states that the duty assumed by the owner of a place of amusement or recreation where the public are invited, for his profit and their pleasure, is analogous to that imposed by law on carriers of passengers, differing only in the standard of care required.In the latter, the standard is extraordinary care; and in the former, ordinary care.While the facts in the case of Moon v. Smith, supra, are not the same as the facts in the instant case, they are sufficiently alike for the principles applied there to be applicable here.That case has been cited with approval many times by this court, two late citations being in Southern Grocery Stores v. Keys, 70 Ga.App. 473, 28 S.E.2d 581, andColonial Stores, Inc., v. Coker, 74 Ga.App. 264, 39 S.E.2d 429; and it may be said that the principles announced in it are well-established as the law in Georgia.

In Savannah Theaters Co. v. Brown, 36 Ga.App. 352, 136 S.E. 478, the plaintiff sued for damages for injuries sustained by his wife, a patron of the defendant's theater, who fell and was injured in leaving the theater at the conclusion of a performance she had attended, it being alleged that her fall was caused by the pushing and shoving of a crowd of small boys who...