Korn v. Tamiami Trail Tours, Inc.

• Decision Date: 18 October 1963
• Docket Number: No. 3,No. 40129,40129,3
• Citation: 108 Ga.App. 510,133 S.E.2d 616
• Parties: Ely KORN v. TAMIAMI TRAIL TOURS, INC. Oct, 7, 1963. Rehearing Denied
• Court: Georgia Court of Appeals

Page 616

133 S.E.2d 616

108 Ga.App. 510

Ely KORN v. TAMIAMI TRAIL TOURS, INC.

No. 40129.

Court of Appeals of Georgia, Division No. 3.

Oct, 7, 1963.

Rehearing Denied Oct. 18, 1963.

Syllabus by the Court

1. Where a petition seeking damages alleges an injury in the State of Florida and an additional transitory tort based on aggravation of the injury, the law of the forum will be applied when no law of Florida governing the causes is pleaded.

2. (a) The diligence which a carrier owes to its passengers while within a station is ordinary diligence.

(b) The court will take judicial notice that the mere existence and maintenance of steps do not alone constitute negligence.

(c) Steps may be constructed or maintained in a negligent status, but circumstances showing how these things constitute negligence are essential to be pleaded in order to state a cause of action.

3. (a) Where portions of a petition allege that the agents of the carrier had knowledge of the injuries sustained by the plaintiff's wife and, while she occupied the status of a passenger, promised at her request to call a physician to treat her for her injuries, the petition alleged a duty resting upon the carrier of rendering the promised assistance.

(b) Although the carrier may not be liable for the original injury, the carrier may be held liable for any aggravation to the injury which was occasioned solely by the failure of the carrier to fulfill its duty in securing the promised medical services to treat the injury.

(c) A general demurrer goes to the whole pleading to which it is addressed and should be overruled if any part is good in substance. The bad part in pleading does not make the whole bad; the good part makes the whole good enough to withstand a general demurrer.

Plaintiff seeks to recover certain damages allegedly occasioned by him as the result of injuries inflicted on his wife while she was en route as a passenger on the defendant's bus line from Pensacola, Fla., to Tifton, Ga. In substance the petition alleges that plaintiff's wife, while a passenger on the defendant's bus, was suffering a serious incapacity, her neck at the time being stiff and her head and chin twisted and tilted to the right, the top of her head pointing to the right with her chin inclined to the left and at an angle upward; the position of her head prevented her from loking downward. The abnormal position which plaintiff's wife carried her head was known to the defendant's bus driver and to other agents of defendant.

The bus on which she was riding having made a rest stop at the station at Eglin Field, plaintiff's wife disembarked and went inside the station to the restroom. There was a 3"' to 3 1/2"' step at the front entrance to the bus terminal at Eglin Field which caused petitioner's wife to fall on her return from the restroom. This step was obscured by the door to the entrance of the terminal. She had previously entered the facility on her way to the restroom through this same place and over the same step. The floor of the bus terminal was of the same color and texture as the outside porch upon which she fell, making it difficult from inside the terminal to see exactly where the step to the outside porch was located. The fall injured her and caused her severe and excruciating pain.

Knowing of the abnormal position of her head, it was the duty of the defendant to furnish assistance to plaintiff's wife while riding as a passenger on the bus, while en route to the restroom to the bus terminal at Eglin Field, and while returning from the restroom to the bus. The bus driver failed to fulfill this duty by allowing petitioner's wife to alight from the bus, and without any help or assistance, to walk into the bus terminal and restroom, and then to walk from the restroom through the same door by which she had entered the bus station in returning to board the bus.

After falling at the Eglin Field, Fla., bus station facility, and while suffering excruciating pain, plaintiff's wife requested an agent of defendant to call a physician to treat her so as to alleviate the pain; the agent did not do so but promised to have medical assistance at the subsequent stop at Panama City, Fla.; although the driver advised the agent in charge at the Panama City station of what had happened to her, the agent refused to obtain medical aid for her at that place, but assured her that he would call Tallahassee and have someone in authority meet her there; relying on the promise that she would be treated in Tallahassee, she undertook to continue the journey to that point although she was experiencing great pain and agony; on reaching Tallahassee no one met her, and there was no doctor or physician available; during the approximately 75-mile trip from Eglin Field to Panama City and the 98-mile journey from Panama City to Tallahassee plaintiff's wife's leg started swelling and continued to swell, and the swelling was accompanied by violent throbbing and pain to such an extent that she was barely able to walk upon her leg; on arrival at Tallahassee, no one having met her, she hobbled to defendant's ticket office to inquire for the promised assistance, but she was advised by the Tallahassee agent that no one could help her and was advised to continue on to Tifton; that it was the duty of the defendant, under the circumstances and conditions existing, to have caused a doctor to administer to her after she suffered her injury; that plaintiff's wife was alone with no one to look after her; that because of the sharp, intensive, excruciating pain which petitioner's wife suffered en route from Eglin Field to Tifton, Georgia, she went into shock from which she has never completely recovered, and that the shock would have been materially reduced had the defendant's agents furnished doctors as promised at the various points.

The petition specifies as the negligence causing the injury to petitioner's wife: the failure of the defendant, after knowing of her condition and her inability to look downward, to fulfill the duty owed to petitioner's wife to have furnished her with assistance and to have accompanied her from the bus to and from the bus terminal and down the step where she fell; the failure to extend warning to petitioner's wife of the step to the bus terminal so that she could have known of its existence; the failure to provide and maintain safe entrances and exits to the bus terminal at Eglin Field; the failure to post warning signs inside the station at the front exit warning passengers of the existence of the 3"' to 3 1/2"' step; and in maintaining the step.

Negligence is also alleged against the defendant by reason of its failure to provide medical attention for plaintiff's wife after she fell and was injured at the intermediate terminal during her trip from Pensacola, Fla., to Tifton, Ga., as defendant, through its agents, had agreed to do.

Through all of these activities, the petition charges that the carrier had the duty of exercising extraordinary care for the safety of his wife.

The general demurrer to the petition was sustained by the trial court, and the petition was dismissed. It is to this judgment that exceptions are brought.

G. Gerald Kunes, Robert R. Forrester, Tifton, for plaintiff in error.

Perry, Walters & Langstaff, Robert B. Langstaff, Albany, for defendant in error.

BELL, Presiding Judge.

1. The extensive petition before us seeks damages for an alleged injury which occurred in the State of Florida and, in effect, alleges and seeks damages for an additional transitory tort based on aggravation of the injury occurring interstate in Florida and Georgia. The petition alleges no law of Florida governing the causes. Accordingly, the law of the forum will be applied in determining whether the petition states a cause of action. Garnto v. Henson, 88 Ga.App. 320, 322, 76 S.E.2d 636; McAlhany v. Allen, 195 Ga. 150(1), 23 S.E.2d 676; Wood v. Wood, 200 Ga. 796, 798, 38 S.E.2d 545; Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 811(1), 7 S.E.2d 737; Nalley Chevrolet, Inc. v. California Bank, 100 Ga.App. 197, 199(2), 110 S.E.2d 577.

2. (a) The diligence which a carrier owes to its passengers to protect their persons while within a station is ordinary diligence. Nashville C. & St. L. R. v. Mooneyham, 37 Ga.App. 236(1), 139 S.E. 589; Southern R. Co. v. Reeves, 116 Ga. 743(2), 42 S.E. 1015. 'The carrier's duty of exercising ordinary care to furnish safe station facilities for those to be received or for those who have been discharged as passengers is not to be confused with the carrier's duty to use extraordinary care in receiving, transporting, and discharging its passengers.' Delta Air Lines, Inc v. Millirons 87 Ga.App. 334, 341, 73 S.E.2d 598; Georgia, Carolina and Northern Ry. Co. v. Brown, 120 Ga. 380, 381, 47 S.E. 942.

The petition here affirmatively alleges that petitioner's wife, the passenger, was injured when she fell down a step at the front entrance to the bus station when returning to the bus from the restroom within the station. S...