Higginbotham v. Winborn

• Decision Date: 19 September 1975
• Docket Number: No. 2,No. 50439,50439,2
• Citation: 135 Ga.App. 753,218 S.E.2d 917
• Parties: H. C. HIGGINBOTHAM, Jr., et al. v. John WINBORN et al
• Court: Georgia Court of Appeals

Page 917

218 S.E.2d 917

135 Ga.App. 753

H. C. HIGGINBOTHAM, Jr., et al. v. John WINBORN et al.

No. 50439.

Court of Appeals of Georgia, Division No. 2.

Sept. 19, 1975.

Fierer & Devine, Thomas J. Hughes, Jr., Foy R. Devine, Atlanta, for appellants.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Edward C. Stone, Ward D. Hull, Albert H. Parnell, Atlanta, for appellees.

PANNELL, Presiding Judge.

This is an appeal from the grant of a summary judgment to the defendant, Winborn, in an action seeking recovery for injuries to an eight-year old child who fell from a fallen tree in the yard of defendant Winborn, the action being brought by the father of the child individually and as next friend of the child. The tree, a large cherry tree, was growing in an adjoining yard of another defendant (with which defendant we are not here concerned) about ten feet from the property line, and in a high wind came up by the roots and fell across defendant's yard on December 15, 1972. Defendant had to trim some limbs in order to gain access to his garage. For some time he tried to get his next door neighbor, in whose yard the tree had been growing, to remove the tree, but without results. The tree remained in the yard until the day the child fell from the tree on March 27, 1973. Afterwards, the tree was removed. The evidence showed without dispute that the tree and its roots, trunk and limbs were sound and in no way rotten, decayed or defective or diseased. The defendant was married to the plaintiff father's sister and the children of the two families played together in the defendant's yard during the time the fallen tree was there. The father and mother of the child were both working and about twice a week the defendant or his wife would go by the school attended by the injured child and bring her to the defendant's house, together with defendant's son who also attended school there. The injured child would subsequently be picked up by her parents when they got off from work. On the day in question, the defendant at about 2:30 in the afternoon picked up the child and his son at the school and took them to his home and left them in charge of the maid until a parent of the injured child could come and get her. According to the plaintiff father, this had been done on a number of occasions and he and his wife had done similar service for the defendant and his son; that this was done as a favor to each other, but there was no agreement or contract about this.

The tree contained a plywood platform built into the tree by the children on a 'v' of the limbs, to which they could gain access by walking up the trunk of the tree. The plaintiff child sustained a broken arm and concussion when she slipped and fell while playing on the tree. The child herself had no recollection of even climbing the tree on the occasion and no recollection of her fall therefrom. The child received no warning as to climbing in the tree from either the defendant or her parents, and her parents with knowledge of previous tree climbing made no objection thereto. The plaintiff father testified that he did not consider the tree particularly dangerous and that the injured child climbed a tree in his yard, but only when he was present.

1. There is no question but that the defendant-appellee invited the child to his home, he actually went by the school and transported her to his home; but this does not necessarily make her an invitee within the meaning of Code Section 105-401. '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 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.' But the words 'for any lawful purpose' and other language of our statute, 'by express or implied invitation,' have been used in cases such as Bennett v. Louisville & C.R. Co., 102 U.S. 577, 585, 26 L.Ed. 235, 236, 238, which, while dealing only with implied invitations, state the rule that an 'invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.' Although our Supreme Court, in holding in Central of Ga. Ry. Co. v. Hunter, 128 Ga. 600, 604, 58 S.E. 154, and King v. Central Ry. Co., supra, 107 Ga. 754, 760, 33 S.E. 839, 841, that 'the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there,' and that 'there must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing may not be for the benefit of the occupant,' was dealing with an implied, and not an express invitation, the basis of the rule, according to the great weight of authority, would be applicable to both cases. A privity of interest being held by the Supreme Court necessary to render an occupant liable to an implied invitee for a lack of ordinary care, even though the statute creates such a liability where the visit of either an express or implied invitee is for 'any lawful purpose,' such a privity of interest would seem to be equally necessary in order to raise an express invitee above the legal status of a licensee. (Cits.).' Hall v. Capps, 52 Ga.App. 150, 151, 182 S.E. 625, 626. 'The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee. Petree v. Davidson-Paxon-Stokes Co., 30 Ga.App. 490, 492, 118 S.E. 697; Hyde v. A. & W.P.R. Co., 47 Ga.App. 139, 169 S.E. 854.' Cook v. Southern Railway Co., 53 Ga.App. 723, 725, 187 S.E. 274, 276.

One invited to the premises of another...