Herring v. R. L. Mathis Certified Dairy Co., s. 43530

• Decision Date: 14 June 1968
• Docket Number: Nos. 43530,No. 2,43540,s. 43530,2
• Citation: 162 S.E.2d 863,118 Ga.App. 132
• Parties: Betty Ruth HERRING v. R. L. MATHIS CERTIFIED DAIRY COMPANY et al. R. L. MATHIS CERTIFIED DAIRY COMPANY et al. v. Betty Ruth HERRING
• Court: Georgia Court of Appeals

Page 863

162 S.E.2d 863

118 Ga.App. 132

Betty Ruth HERRING v. R. L. MATHIS CERTIFIED DAIRY COMPANY et al.

R. L. MATHIS CERTIFIED DAIRY COMPANY et al. v. Betty Ruth HERRING.

Nos. 43530, 43540.

Court of Appeals of Georgia, Division No. 2.

June 14, 1968.

Rehearing Denied July 8, 1968.

Certiorari Denied Sept. 24, 1968.

Syllabus by the Court

1. Under the provisions of Code Ann. § 6-805(f) if anything material to either party is omitted from the record on appeal, the trial judge may direct that the omission be corrected and, if necessary, that a supplemental record be certified and transmitted by the clerk of the trial court.

2. A motion to dismiss will not lie to a complaint which alleges that one who acts as a voluntary custodian of a boy slightly over 14 years of age exercised no control or supervision over that boy.

3. Since the doctrine of assumption of the risk presupposes the knowledge of the danger assumed, where there was no showing the deceased was aware of the danger, the complaint was not subject to a motion to dismiss.

4. Monetary consideration is not essential to the relationship of owner or occupier of the land and an invitee to the premises, since common interest or mutual advantage is sufficient.

5. An agent or corporate officer who exercises control and management of his principal's premises is liable to third persons, to whom a duty is owed on the owner's part, for injuries resulting from his negligence in failing to maintain the premises in a safe condition.

Mrs. Betty Ruth Herring brought this action in DeKalb Superior Court for the wrongful death of her son against R. L. Mathis Certified Dairy Company (hereinafter referred to as the Dairy), R. Lloyd Mathis, II, (hereinafter referred to as Mathis) the General Manager of the Dairy, Grant Park Baptist Church (hereinafter referred to as the Church) and Mrs. Willeen Bourn (hereinafter referred to as Mrs. Brown), the Sunday School Superintendent of the Intermediate Department of the Church. The complaint alleged that plaintiff's son William Lee Herring was some 14 years and 4 months old when he died by drowning on August 26, 1965; that the Dairy is engaged in the certified milk business and maintains a large dairy farm, a milk processing plant and distribution facilities, together with a lake resort and picnic grounds to which, for advertising purposes and to promote the sales of its products, the public is invited; that for advertising purposes the Dairy erected signs welcoming visitors, conducted tours, solicited the public to use the picnic grounds and lake and to take guided tours of the premises, maintained an animal exhibit, provided a gallery in which entertainment and talks were given and where milking operations could be viewed; distributed literature and samples of its products, all for the pecuniary benefit of the Dairy.

It was alleged that a large impoundment of water or lake, traingular in shape, of described dimensions was located on the premises and that there was a raft in the approximate center of the lake; that Mrs. Bourn, acting as agent for the Church, secured offered reservations for a Sunday school picnic on the Dairy's lake and picnic grounds and invited the members of the Sunday school class and certain adults; that two boys, nine girls, nine adults and the minister and his wife constituted the picnicking group; that neither the deceased boy's father nor the plaintiff was included in the group.

It was further alleged that there were various other groups of picnickers on the premises; that the Dairy provided bath houses, a platform for use of bathers and divers and a paddle boat for amusement purposes; that the plaintiff's son was a member of the Church group and an invitee of the Dairy; that consent to attend the picnic under the custody and control of the Church and its agents was given by the father as the natural guardian of the boy; that the boy changed his clothing to a bathing suit and took the paddle boat to a platform where he surrendered it to two girls, members of the Sunday school class, and took up a position on the platform, in deep water, unconnected with the shore; and thereafter he returned to the water where he strangled and drowned.

There were allegations that the members of the Church group pursued their own pleasures without maintaining contact with the deceased boy. After assembling at the pavilion and reaching the dessert stage of the picnic, query was raised as to the boy's whereabouts. No one knew and a search was begun. After considerable searching the boy's body was eventually found in the deep portion of the lake.

The defendant Dairy was alleged to be negligent in the following particulars: (1) in failing to place warning signs indicating the depths of the water in appropriate parts of the lake; (2) in failing to provide adequate supervision of the grounds and a reasonable number of attendants and lifeguards to direct the activities of the Dairy's invitees and to protect and rescue them; (3) in failing to warn the plaintiff's son of the dangers of swimming in the deep portions of the lake. The Dairy was also alleged to be negligent for failing to observe the requirements of a DeKalb County ordinance which provides for a permit to operate a swimming facility, an attendant or lifeguard, a system of artificial illumination, a clear indication of depths of water, and that various safety equipment, such as life buoys and first aid kits, should be provided.

The complaint alleged that the defendant Mathis as officer and general manager of the Dairy was charged with the duty of securing the necessary permit and providing for compliance by the Dairy with the mandates of the ordinance; that he failed to accomplish this and was on the premises at the time of the occurrence. He was further alleged to be negligent in the same particulars as the Dairy.

There were also averments that the Dairy and the defendant Mathis were negligent in not warning Mrs. Bourn of the inherent dangers on the premises.

The Church and Mrs. Bourn were alleged to be negligent in failing to supervise the activities of the plaintiff's son and to discover him to be in distress and promptly aid and rescue him. The complaint prayed for the recovery of $100,000 in damages.

Each of the defendants filed separate motions to dismiss the complaint on the grounds that it failed to state a claim against the particular defendant upon which relief could be granted. The trial judge sustained the motions to dismiss of the defendants Mathis, Mrs. Bourn and the Church and overruled the defendant Dairy's motion to dismiss. The plaintiff in Case 43530 appeals from the judgments in favor of the three above named defendants. The defendant Dairy in Case 43540 appeals from the judgment in favor of the plaintiff which overruled its motion to dismiss.

Freeman R. Hardisty, Frank Fuller, Atlanta, for appellant.

Lokey & Bowden, Glenn Frick, O'Kelley, Hopkins & VanGerpen, H. Lowell Hopkins, Long, Weinberg & Ansley, Palmer H. Ansley, John K. Dunlap, Atlanta, for appellees.

QUILLIAN, Judge.

1. The appellant Mrs. Herring appealed from judgments rendered in favor of three defendants (the Church, Mathis and Mrs. Bourn). The appeal contained some 26 paragraphs specifically listing items to be omitted. In summary of these specific omissions, the notice of appeal recited: 'Omit the entire record except the petition, the amendment to the complaint, the renewed motions to dismiss by R. Lloyd Mathis, II, Grant Park Baptist Church, and Mrs. Willeen Bourn, respectively, and plaintiff's affidavit of her inability to pay costs.' Thus, although the three judgments which were the subject of this appeal were not specifically listed for omission, as a result of this last paragraph, they were not sent up with the record on appeal. In order to remedy this situation, the plaintiff requested the Clerk of DeKalb Superior Court to transmit these three judgments, which was duly accomplished on February 12, 1968.

On February 27, 1968, the individual defendant Mathis then filed a motion to dismiss the appeal and what he denominated an objection to the record. At a later time on March 1, 1968, the other two defendants filed similar motions. It was contended that the appeal was subject to being dismissed because the record did not contain a judgment or order from which the appeal was brought. In support of this argument movants cite Walker v. Walker, 222 Ga. 521, 150 S.E.2d 635; Bowers v. Gill, 222 Ga. 529, 150 S.E.2d 653; Hardnett v. United States Fidelity & Guaranty Co., 116 Ga.App. 732, 158 S.E.2d 303.

On February 29, 1968, the appellant filed a motion with the trial judge requesting that he order the clerk to send up the three previously omitted judgments. The trial judge on that same day issued an order that such judgments be sent to this court.

Code Ann. § 6-805(f) (Ga.L.1965, pp. 18, 24) provides: 'If anything material to either party is omitted from the record on appeal or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected, and, if necessary, that a supplemental record shall be certified and transmitted by the clerk of the trial court.' Movants, in their briefs, concede that if Code Ann. § 6-805(f) (Ga.L.1965, pp. 18, 24) were complied with their motions to dismiss would not be meritorious. The appellant in this case did comply with the Code section in question by obtaining the order of the trial judge directing that the three judgments which were omitted be sent to this court. Thus, the motions to dismiss in Case 43530 are denied.

2. In applying the new rules of civil procedure (Civil Practice Act, Ga.L.1966, p. 609, as amended Ga.L.1967, p. 226) to the consideration of pleadings, the following principles are applicable: (1) that pleadings shall be...