Jones v. West End Theatre Co., 36290

• Decision Date: 11 July 1956
• Docket Number: No. 36290,No. 2,36290,2
• Citation: 94 Ga.App. 299,94 S.E.2d 135
• Parties: Ralph F. JONES v. WEST END THEATRE COMPANY
• Court: Georgia Court of Appeals

Page 135

94 S.E.2d 135

94 Ga.App. 299

Ralph F. JONES v. WEST END THEATRE COMPANY.

No. 36290.

Court of Appeals of Georgia, Division No. 2.

July 11, 1956.

Rehearing Denied July 31, 1956.

Syllabus by the Court

1. While the plaintiff cannot by amendment introduce an entirely new cause of action, he may nevertheless add a new count substantially different from the first declaration, provided he adheres to the original cause of action, thus alleging factual elements in different ways so as to meet conflicting proof.

2. Since neither count of the petition alleged facts which would warrant the conclusion that the defendant theatre company should in the exercise of ordinary care have discovered and removed the beer can from the pavement on which the plaintiff stumbled and fell, no actionable negligence is alleged, and the trial court did not err in sustaining the demurrers to the petition.

Ralph Jones filed an action for damages in Fulton County Superior Court against West End Theatre Company for personal injuries sustained by him while an invitee of the defendant in the Bankhead Drive-In Theatre. The petition as amended is in two counts which are identical except for one paragraph hereinafter discussed. Both counts allege that the theatre is an outdoor, open-air amusement area to which the public is invited for the purpose of observing motion picture shows while seated in automobiles; that it is an enormous fenced-in area accommodating approximately 800 automobiles which are parked on parking ramps around the screen, that the theatre area is constructed of an asphalt substance and terraced with a series of parking ramps, the leading edges of which are elevated above each other by terraces approximately three feet in height; that the defendant operates a concession in front of the screen and by means of notices flashed on the screen invites patrons to come to the concession area; that when pictures are showing, vehicles are required to extinguish their lights upon entering the viewing area and the area is very dimly lighted; that at 9:30 p. m. 'the first showing of the picture was interrupted,' the area was lighted by flood lamps, and the plaintiff left his automobile for the first time and 'proceeded between the cars parked on the terraced levels in front of him, down the incline and over the elevated ramps upon which other vehicles were parked' to the concession stand, made some purchases and while so doing 'the flood lights which had illuminated the theatre area were extinguished by the defendant and the area was again plunged into darkness.' The plaintiff attempted to walk between the parked cars and climb the elevated terraces of the parking ramps to return to his automobile and in doing so stepped on an empty beer can and was 'plunged to the asphalt floor of the theatre area, pitching down one of the elevated terraces or parking ramps' and suffered a broken leg and other personal injury. The petition alleges negligence in that the defendant who knew that refuse was disposed of through car windows nightly by patrons of the theatre, should have anticipated that the plaintiff could step on such objects and failed to warn him of this danger; that it failed to warn him of the uneven terrain and dangerous construction of the parking area and in failing to provide safe stairs, paths, walkways or other designated routes or accessways between the parked car and the concession stands. Count 1 alleges that as the plaintiff traversed the area to the concession while the lights were on there was no beer can on the pavement, and that as he returned over the same route the beer can was present. Count 2 alleges that because of the darkness and shifting of cars the plaintiff returned by a different route and there stepped on the beer can.

General and special demurrers were filed to the petition and renewed to the petition as amended. The general demurrers were sustained (the special demurrers not having been passed upon) and the petition was dismissed. The judgment is assigned as error.

Grace W. Thomas, Atlanta, for plaintiff in error.

Nall, Sterne, Miller, Cadenhead & Dennis, Robert E. Hicks, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. The only difference between the first count of the petition and the second count which was added by amendment is that in the first it is alleged the plaintiff returned to his car by the same route as the one by which he went, while in the second it is alleged that he returned by a second route. Both counts show the same transaction, the same right on the part of the defendant, and the same injury. It was not, accordingly, error to allow the amendment. Milton v. Milton, 195 Ga. 130(3), 23 S.E.2d 411; Spence v. Erwin, 200 Ga. 672, 674(3), 38 S.E.2d 394; Maxwell v. Harrison, 8 Ga. 61(2). It is perfectly permissible to add a new count by amendment in which the details of the transaction are varied to meet conflicting proof, and even as against the empirical argument that the plaintiff should necessarily know in which direction he walked, the deviation in factual allegation in the two counts does not make it subject to demurrer.

2(a). 'Where one enters the premises of another for purposes connected with the owner's business conducted on such premises such person is an invitee, and the owner is liable in damages to him for failure to exercise ordinary care in keeping the premises safe. As stated in Tybee Amusement Co. v. Odum, 51 Ga.App. 1, 179 S.E. 415, the owner or occupier of premises is liable for failure to warn invitees of dangers or defects in them of which the owner or occupier knew or of which it was his duty to know, in the exercise of ordinary care. * * * It is essential to recovery that it appear from the allegations of the petition that the defendant knew or by the exercise of ordinary care ought to have known, of the presence on the floor of the theatre of the substance which caused the plaintiff to fall. Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 48 S.E. 438; Pacetti v. Central of Ga. Ry. Co., 6 Ga.App. 97(1), 64 S.E. 302.' United Theatre Enterprises, Inc. v. Carpenter, 68 Ga.App. 438, 23 S.E.2d 189, 190. "The rules governing the land proprietor's duty to his invitee presuppose that the possessor knows of the condition and 'has no reason to believe that they (his invitees) will discover the condition or realize the risk involved therein.' 2 Restatement, Law of Torts, Sec....