Howerdd v. Whitaker

• Decision Date: 18 March 1953
• Docket Number: 2,Nos. 1,No. 34305,34305,s. 1
• Parties: HOWERDD v. WHITAKER
• Court: Georgia Court of Appeals

Page 572

75 S.E.2d 572

87 Ga.App. 850

HOWERDD v. WHITAKER.

No. 34305.

Court of Appeals of Georgia, Division Nos. 1, 2.

March 18, 1953.

Rehearing Denied March 28, 1953.

Syllabus by the Court.

The petition failed to set out a cause of action, and the court erred in overruling the general demurrer thereto.

Douglas Whitaker sued Eugene M. Howerdd, in Richmond Superior Court, for damages, and alleged substantially the following in his petition: The defendant owns a dwelling about one mile from Augusta and, on February 6, 1952, employed the plaintiff as a servant to repair a gutter, which extended for 100 feet under the edge of the roof at the rear of the defendant's dwelling. This part of the roof is 100 feet long, 25 feet wide, and is flat and covered with tin; and it has a banister running around it. The plaintiff was to be paid on an hourly basis to repair the gutter.

There is a portion of the flat tin roof extending 20 inches beyond the banister, and the gutter extends 6 to 8 inches out from the edge of the roof; the edge of the roof is 40 feet above the ground. The plaintiff was employed to build up the middle part of the gutter so that water would flow to either end of it. On February 6, the plaintiff was working at the outer edge of the roof, and it was necessary for him to hold onto a wooden rail of the banister which was about 8 inches above the roof. There was no other way for him to repair the gutter, as it was made of thin copper and would have been crushed by the weight of a ladder and a workman resting against it.

The banister consisted of a wooden top piece, 8 inches wide and 2 inches thick, with wooden pieces, 1 1/2 inches square and 2 1/2 feet long, connecting the top piece with the wooden bottom railing, which was 2 1/2 inches wide and 1 1/2 inches thick. At intervals of 10 feet, posts extended down from the top piece to the roof and were attached to the roof. The bottom railing was nailed to each of the vertical palings and to the posts. The banister was painted white with a thick, heavy coating of lead paint, and none of the wood was visible; the banister appeared to be firm, secure, strong, sound, and sturdy.

While the plaintiff was holding onto the bottom railing with his left hand to maintain his balance and to allow the free use of his right hand to repair the gutter, the bottom railing broke, causing the plaintiff to fall to the concrete walk below. The portion of the rail to which the plaintiff was holding had no strength and, although the plaintiff had put very small strain on it, gave way due to the fact that it had completely rotted and disintegrated on the inside, such condition being concealed by the thick coat of paint covering the railing. The plaintiff had never seen the defendant's dwelling until three weeks before he fell from the roof, and he had no knowledge that the rotten wood had been painted over, and he had no means of knowing or suspecting, and received no warning or notice that the railing was deceptive in appearance and was rotten. There was nothing visible to call the plaintiff's attention to the fact that the railing was rotten or to head him to suspect that the rail was not sound, solid, and capable of withstanding the small strain that he placed upon it.

The defendant was the owner and in charge of his dwelling, and he knew, or by the exercise of ordinary care should have known, that the wooden railing had been there for many years, the exact number being unknown to the plaintiff but well known to the defendant; and the defendant knew or should have known that the wooden rail was rotten and defective and had been covered over with a heavy coat of paint, as the paint had been placed on the railing at the defendant's direction at a time unknown to the plaintiff but well known to the defendant. The rail's concealed, rotten condition was the proximate cause of the plaintiff's injuries, which were set out in the petition.

To this petition, the defendant demurred on the ground that it failed to state a cause of action. The court overruled the general demurrer, and the defendant excepted.

Cumming, Nixon & Eve and Samuel C. Waller, Augusta, for plaintiff in error.

Harris, Chance & McCracken, Augusta, for defendant in error.

SUTTON, Chief Justice.

The plaintiff alleges that he was employed by the defendant as a servant to repair a gutter extending under the edge of the roof which runs around the third story of the defendant's dwelling, said roof being 100 feet in length and 25 feet in width, flat and covered with tin. Said roof had a wooden banister running around it, consisting of a top piece, a bottom piece, and wooden pieces 1 1/2 inches square and 2 1/2 feet long between or connecting the top and bottom pieces of the banister. A portion of the flat tin roof extended approximately 20 inches beyond said banister; that is, the ledge around the roof was about 20 inches wide, and then the gutter extended 6 to 8 inches beyond the edge of the roof. The bottom piece or rail of the banister was about 1 1/2 inches thick and 2 1/2 inches wide, and was 8 inches above the roof. The banister was painted with a heavy, thick coat of white paint, and none of the wood was visible, but the banister appeared to be firm, sound, and strong. It is alleged that, in order for the plaintiff to work on the 20-inch ledge of the roof extending beyond the banister, it was necessary for him to hold onto the bottom rail of the banister with his left hand while repairing the gutter with his right hand, and that while doing so, the portion of the rail that he was holding broke, causing him to lose his balance and to fall from the roof; that the rail of the banister to which he was holding was rotten and disintegrated on the inside, but this was concealed and could not be seen, as it was covered with a heavy coat of paint. It is alleged in paragraph 19 that the defendant knew, or by the exercise of ordinary care should have known, that said wooden railing had been there for many years, the exact number being unknown to the plaintiff but well known to the defendant, who well knew or should have known that said wood was rotten and defective, had disintegrated, and had been covered over with a heavy coating of white lead paint, said paint having been placed on said railings at the direction of the defendant at a time unknown to the plaintiff but well known to the defendant.

The plaintiff alleges that he was the servant of the defendant in repairing the gutter and was being paid on an hourly basis. While it is true that the master must furnish his employee a safe place to work, it is also true that 'A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself.' Code, § 66-303. It is not alleged that the defendant had the building constructed, or that he had actual knowledge of the alleged defective railing on the banister, but the plaintiff bases his suit on the theory that it was the duty of the defendant to make an inspection of the banister before the plaintiff went upon the roof and to warn him of any defects therein, although it is alleged that the banister appeared to be sound, firm, and strong. In the absence of actual knowledge on the part of the defendant owner of any defect in the banister, and where it appeared to be safe and sound, how could it properly be said that there was any duty on him to inspect it, when he had no reason to think that an inspection was necessary? Ordinary diligence to discover defects is all that is required of an owner to an invitee, even. Cuthbert v. Schofield, 35 Ga.App. 443, 133 S.E. 303. If the banister appeared safe to the plaintiff, a workman, who was on the roof holding onto it, it no doubt would have appeared safe to the defendant also, despite the conclusion of the plaintiff that the existence of a defect could have been ascertained by the defendant by an inspection. 'The alternative allegation that the defendants knew of a defect or could have ascertained the existence of a defect by an inspection, when construed most strongly against the pleader, as must be done on demurrer, shows no actual knowledge of any defect. Where the owner or occupier of premises is without actual knowledge of the existence of a defect, and there is nothing in the appearance or character of the premises or some instrumentality on the premises which would indicate the possible or probable existence of any defects, there is no reason to think an inspection necessary, and ordinary diligence would not require an inspection of the premises or an instrumentality upon the premises before permitting an invitee to make use of the same.' McCarthy v. Hiers, 81 Ga.App. 365, 367, 59 S.E.2d 22, 24. Also, see Williamson v. Kidd, 65 Ga.App. 285, 15 S.E.2d 801; Southern Bell Telephone, etc., Co. v. Starnes, 122 Ga. 602, 50 S.E. 343.

While it is alleged that it was necessary for the plaintiff to hold onto the banister in repairing the gutter, still the petition shows that there was a ledge at least 20 inches wide for him to stand on while doing that work. Of course, if the banister was put there for ornament and symmetry, to give the building a balanced effect, and was not put there as a brace or to hold onto, for instance, while repairing the gutter, the owner would not be responsible for injuries occasioned by such foreign use, unless he had actual knowledge that the banister was defective and also knew or should have anticipated that it would be used to hold onto while the gutter was being repaired. 'Where an instrumentality is being put to a purpose or use not intended, the owner or person in control thereof is not liable for injuries occasioned thereby, unless he had actual knowledge that it was defective and unsuited for that purpose, and also knew or should have anticipated that it would be diverted to the foreign use.' Culbreath v. M. Kutz Co., 37 Ga.App. 425, 430, 140 S.E. 419. In that case a window...