Lowe v. Atlanta Masonic Temple Co Inc

• Decision Date: 10 June 1949
• Docket Number: No. 32513.,32513.
• Citation: Lowe v. Atlanta Masonic Temple Co Inc, 79 Ga.App. 575, 54 S.E.2d 677 (Ga. App. 1949)
• Parties: LOWE. v. ATLANTA MASONIC TEMPLE CO, Inc.
• Court: Georgia Court of Appeals

79 Ga.App. 575

54 S.E.2d 677

LOWE.

v.ATLANTA MASONIC TEMPLE CO, Inc.

No. 32513.

Court of Appeals of Georgia, Division No. 2.

June 10, 1949.

Rehearing Denied July 11, 1949.

Syllabus by the Court.

1. (a) Where the petition of a plaintiff discloses that the defendant corporation is the owner of a building, the upper floors of which are rented to various fraternal orders, and the plaintiff is invited into the building by the secretary of one of such orders of which plaintiff is a member, to carry out a legitimate business transaction with said order, such plaintiff is an invitee on the premises of the defendant within the meaning of Code § 105-401. Macon Academy of Music Co. v. Carter, 78 Ga. App. 37, 50 S.E.2d 626.

(b) Where such petition also alleges that the plaintiff was expressly invited to come onto the premises of the defendant corporation at a particular time by the secretary of the fraternal order of which he is a member, said secretary being also a member of the board of directors of the defendant corporation with an office on the first floor of said building, the business of the defendant being to pick up articles of merchandise which he had purchased from the fraternal order of which he is a member, which articles of merchandise were located at a particular place on the premises, all of which was known to the defendant corporation through its said member of its board of directors and also through its agents and servants in charge of said building, an implied invitation by the defendant corporation is thereby shown to have been extended to the plaintiff, provided he did not go beyond that part of the premises to which, as the situation reasonably appeared to him the invitation extended. See Jones v. Asa Candler, Inc., 22 Ga.App. 717, 97 S. E. 112; Georgia Power Co. v. Sheats, 58 Ga.App. 730, 199 S.E. 582.

(c) "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." Code, § 105-401. This section also places upon the owner or occupier of land the duty to exercise ordinary care for the safety of invitees in discovering defects on the premises or instrumentalities thereon, and imposes a liability for injuriesresulting from such defects as a reasonable inspection would disclose. Such owner or occupier of land is liable for failure to warn invitees of such dangers or defects in such premises or instrumentalities, of which such owner knew or in the exercise of ordinary care should have known. See Coffer v. Bradshaw, 46 Ga.App. 143, 167 S.E. 119; Tybee Amusement Co. v. Odum, 51 Ga.App. 1, 179 S.E. 415.

2. (a) Where certain specified conduct is charged as a required degree of negligence in order to make the defendant liable, it is generally a question for the determination of the jury as to whether or not such conduct amounts to the degree of negligence charged. See Macon Telegraph Publishing Co. v. Graden, Ga.App, 53 S.E. 2d 371, decided May 11, 1949; Southern Stages v. Clements, 71 Ga.App. 169(2), 30 S.E.2d 429. It is always a jury question where the conduct charged and relied upon is such that different minds might reasonably draw different conclusions therefrom. See Macon Telegraph Publishing Co. v. Graden, supra; Jordan v. Lee, 51 Ga.App. 99, 179 S.E. 739; R.C.L. Vol. 22, Proximate Cause, Sec. 31, p. 148; Moody v. Gulf Refining Co, 142 Tenn. 280, 289, 218 S.W. 817, 8 A.L.R. 1243; Teis v. Smuggler Min. Co, 10 Cir, 158 F. 260; 15 L.R.A..N.S, 893; Pilmer v. Boise Traction Co, 14 Idaho 327, 94 P. 432, 15 L.R.A, N.S, 254, 125 Am.St.Rep. 161; Stone v. Boston, etc, R. Co, 171 Mass. 536, 51 N.E. 1, 41 L.R.A. 794; Huber v. LaCrosse City R. Co, 92 Wis. 636, 66 N.W. 708, 31 L.R.A. 583, 53 Am.St.Rep. 940. However, where such conduct is susceptible of but the one inference that it does not amount to the degree of negligence charged, demurrer to the pleading so charging it must be sustained. See Lester v. Foster, 40 Ga.App. 500, 150 S.E. 433; 45 C.J. § 852, p. 1279; Moody v. Gulf Refining Co, supra; Clark v. Wallace, 51 Colo. 437, 118 P. 973, Ann.Cas. 1913B, 349; Bass v. Southern Enterprises, 32 Ga.App. 399(2), 123 S.E. 753. Macon Tel. Pub. Co. v. Graden, supra.

(b) Also the question of whether or not certain specified conduct on the part of the plaintiff amounts to such contributory negligence as to preclude recovery, is likewise generally a question for the deter mination of the jury. See Camp v. Curry-Arrington Co, 41 Ga.App. 53, 151 S.E. 837; Morris v. Deraney, 68 Ga.App. 308, 22 S.E 2d 860.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Action by R. C. Lowe against the Atlanta Masonic Temple Company for injuries. Judgment for defendant, and plaintiff brings error.

Reversed.

The plaintiff in error, R. C. Lowe, herein referred to as the plaintiff, brought suit in the Superior Court of Fulton County, against the defendant in error, Atlanta Masonic Temple Co, Inc., herein referred to as the defendant.

The petition of the plaintiff alleges facts substantially as follows: that the defendant is the owner of a certain building in Atlanta; that the space on the upper floor of said building is rented to various fraternal orders; that the defendant maintains an electric passenger elevator in the building for use of its tenants including the fraternal orders and their members and other persons having business to transact with the tenants; that the secretary of the defendant corporation is in charge of the building and has an office on the first floor thereof; that the secretary of one of the fraternal orders which is a tenant of the defendant has an office on the first floor; that the plaintiff is a member of this fraternal order and that the secretary thereof is a member of the board of directors of the defendant corporation; that on the 25th day of Nov. 1946, the fraternal order aforementioned having recently purchased a large quantity of coca colas in excess of its needs for a certain social function, disposed of a quantity thereof to the plaintiff through its secretary who notified the plaintiff the coca colas would be left for him on the floor of the elevator on the street level of the building, and that plaintiff would find them there at about 4:30 p. m. on said date; that leaving coca colas and other merchandise on the elevator in this manner so that the same might be picked up by plaintiff and others similarly situated was well known to thesecretary of the defendant corporation, to the aforementioned director, to the building superintendent and to the other employees of the defendant on the premises; that during the daytime the elevator was frequently left on the street level floor with its lights off in order to save electric current; that the plaintiff and others in procuring merchandise left on the elevator for delivery to them would have to open the doors, step into the elevator and turn on the lights; that the plaintiff had on previous occasions seen others open the door to the elevator shaft from the outside when the elevator was standing at the street floor level, and plaintiff thought the door could only be opened from the outside if the elevator was there; that on the occasion in question the coca colas which had been purchased by the plaintiff were placed on the elevator floor for the plaintiff and upon calling for them at about 4:30 p. m. the plaintiff opened the door to the elevator shaft and upon stepping in found the elevator gone and fell some 18 feet down the shaft resulting in serious injuries for which he sues, and that one of the employees of the defendant had moved the elevator prior thereto to some floor above the street level.

The petition also alleges that the defendant knew on the date when petitioner was injured that the elevator door was insecure and inadequately fastened; that it could be opened from the outside whether the elevator was in place or not; that the plaintiff was coming to get coca colas from the floor of the elevator that afternoon, and that he would expect to find the elevator at its usual place at the street level at that time of day. The defendant is alleged to be negligent in particulars as follows: (a) In moving said elevator from the first floor level after having full knowledge that petitioner had been told to come by and pick up a case of coca colas which he would find on the floor of the elevator at the street floor of the building, (b) In not warning petitioner that said elevator, had been moved to an upper floor level, (c) In failing to post a notice or station an employee at the elevator shaft on the first floor to warn petitioner, knowing that he would come to pick up the coca colas and expect to find them in the elevator at the first floor, and knowing that the latch on the door to the elevator shaft was faulty and could be opened from the outside although the elevator was not at that floor level, (d) In permitting the only latch on the door to the elevator shaft at the first floor to become worn, loose and defective so that the door could be opened from the outside even though the elevator was not present at that floor level, (e) In failing to keep the elevator shaft sufficiently lighted to show whether said elevator was or was not at the street floor level, (f) In maintaining a door of glass which reflected the overhead and other lights from the lobby and hallway and prevented petitioner from ascertaining whether the elevator was at the street floor level without opening the door to the shaft, (g) In permitting the condition hereinabove described to exist and in continuing to maintain the pitfall and trap in its building created by an unlighted elevator and unlighted elevator shaft, a faulty latch on the elevator door which could be easily manipulated and opened from the outside and in maintaining overhead...