Macon Tel. Pub. Co v. Graden

• Decision Date: 21 April 1949
• Docket Number: No. 32325.,32325.
• Citation: 79 Ga.App. 230,53 S.E.2d 371
• Parties: MACON TELEGRAPH PUB. CO. v. GRADEN.
• Court: Georgia Court of Appeals

53 S.E.2d 371

79 Ga.App. 230

MACON TELEGRAPH PUB. CO.

v.GRADEN.

No. 32325.

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

April 21, 1949.

Rehearing Denied May 12, 1949.

Syllabus by the Court.

1. (a) A petition alleging that a certain street of a municipality was set aside to the sponsor of a Soap Box Derby for the purpose of conducting the same for the entertainment of the public, and the races are conducted by such sponsor who received the benefit of valuable advertising by reason thereof, and the contest is attended by the public at the invitation of such sponsor, the sponsor becomes an occupier of the premises within the meaning of Code § 105-401.

(b) Persons attending the contest being held on the premises thus set apart for the use of the sponsor in conducting the Soap Box Derby are invitees of such sponsor. See Black's Law Dictionary; Cross-grove v. Atlantic Coast Line R. Co., 30 Ga.App. 462, 118 S.E. 694, 695.

(c) Such sponsor owes such invitees ordinary care in keeping the premises safe for them. See Goettee v. Carlyle et al., 68 Ga.App. 288(1), 22 S.E.2d 854; Moone v. Smith, 6 Ga.App. 649, 65 S.E. 712.

(d) 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 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 Klause v. Nebraska State Board of Agriculture, 150 Neb. 466, 35 N.W.2d 104, See also Jordon 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., 8 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, & A. R. Co., 171 Mass. 536, 51 N.E. 1, 41 L.R.A. 794; Huber v. La Crosse City Ry. 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 CJ.Sec. § 852, p. 1279; Moody v. Gulf Refining Co., supra; Clark v. Wallace, 51 Colo. 437, 118 P. 973, Ann.Cas.l913B, 349; Bass v. Southern Enterprises, Inc., 32 Ga. App. 399(2), 123 S.E. 753.

2. (a) Allegations of a petition having some materiality to the cause of action should not be striken on special demurrer. See Southwestern R. Co. v. Davies, 53 Ga. App. 712 et seq., 186 S.E. 899; Goble v. Louisville & Nashville R. Co., 187 Ga. 243 et seq., 200 S.E. 259.

(b) Where a petition contains general averments which constitute conclusions of the pleader and also specially pleaded facts which warrant such conclusions, the general averments must be construed to have reference to the specially pleaded facts. See North British & Mercantile Ins. Co. v. Parnell, 53 Ga.App. 178(1), 185 S.E. 122.

FELTON and PARKER, JJ., dissenting.

Error from City Court of Macon; Cecil A. Baldwin, Judge.

Action by Pauline Graden against the Macon Telegraph Publishing Company for personal injuries received while a spectator at a contest sponsored by defendant. To review the judgment, defendant brings error.

Judgment affirmed.

The defendant in error, Mrs. Pauline Graden, hereinafter referred to as theplaintiff, brought suit in the City Court of Macon against the plaintiff in error, Macon Telegraph Publishing Co., hereinafter referred to as the defendant.

The petition as amended alleges substantially that the defendant sponsored, staged and conducted, through its agents acting within the scope of their employment, a contest for small homemade racing cars built and driven by children of limited experience and ages; that the contest was sponsored on July 30, 1947, in the City of Macon and is known generally as a soap box derby; that the defendant caused much publicity to be given the contest through the press and radio and as the result thereof, received valuable advertising, both before the contest and during the same; that the portion of the streets and sidewalks of the City of Macon known as Emory Highway was set aside by the authorities of said city for the use of the defendant to carry out the purposes of conducting the contest; that the public was invited to attend and a place adjacent to the course was designated by the defendant through its agents as the place for the spectators to occupy from which to view the races; that the plaintiff attended the races and while she was standing in the place designated for spectators, one of the racing cars without warning left the course and ran into the plaintiff striking her in a violent manner, and inflicting upon her numerous injuries all of which are described in the petition.

The petition further alleges that the racing cars participating in the contest including the particular car which struck the plaintiff were of flimsy and unsturdy construction; that the car which struck the plaintiff was in defective mechanical condition; that it was driven by a child that was not required to demonstrate his skill, that he was incompetent and that while his name is unknown to plaintiff, it is known to the defendant; that very little, if any, inspection was made to determine the condition and safeness of the cars before allowing them to participate in the contest, that the object of the contest was to determine which car could attain the highest rate of speed; that the car which struck plaintiff was being operated at a rapid rate of speed in excess of 25 miles per hour; that the de fendant had control of the launching, allowing to race, and driving of the particular car which struck plaintiff; that the defendant was negligent in launching said cars from a ramp in order to attain a higher rate of speed and that six or seven other cars had accidents which were launched from this ramp before plaintiff was injured by the car which was so launched and struck her; that the defendant was otherwise negligent in failing to provide a barrier to prevent the racing cars from leaving the course and running into spectators including plaintiff; in failing to make the premises safe for the plaintiff and other spectators; in failing to inspect and determine if the racing cars were in good mechanical condition and free from danger to the public; in failing to determine the qualifications and abilities of the drivers of the cars; and in sponsoring and operating a dangerous instrumentality in a public and crowded place.

The defendant filed general and special demurrers to the original petition. The plaintiff filed an amendment and thereupon the defendant renewed its previous demurrers and added additional grounds. The exception is to the overruling of these demurrers.

Harris, Harris, Russell & Weaver, Macon, for plaintiff in error.

H. B. Bell, Hall & Bloch, Denmark Groover, Jr., Macon, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

(a) The petition alleges that a certain street of the City of Macon was set aside to the defendant to sponsor the Soap Box Derby at which the plaintiff was injured.

The premises where the race was being conducted at the time of the injury of the plaintiff, having been set aside to the defendant for the purpose of sponsoring and conducting the same, the defendant was at the time the occupier of the premises within the meaning of Code, § 105-401, which provides as follows: "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawfulpurpose, 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."

(b) The petition alleges that the public was invited to be present upon these premises that had thus been set aside to the defendant; that the benefit the defendant received from the arrangement was valuable advertising, and that pursuant to this invitation the plaintiff attended the race. She was therefore an invitee. The status of an invitee is not dependent here upon an invitation implied by law. The petition alleges that the defendant invited and urged, through the press and radio, the public to attend the contest. Black's Law Dictionary, Third Edition, p. 1007, defines an invitee as one who is at a place at the invitation of another. See also Crossgrove v. Atlantic Coast Line R. Co., 30 Ga.App. 462, 118 S.E. 694, 695. Therefore, under the allegations of the petition the defendant became an invitee by express invitation to the public generally which included her.

(c) The defendant as the occupier of the premises owed to the spectators who were present at its invitation, including the plaintiff, ordinary care in keeping the premises safe for them. See Goettee v. Carlyle et al., 68 Ga.App. 288(1), 22 S.E.2d 854; Moone v. Smith, 6 Ga.App. 649, 65 S.E. 712.

(d) Whether or not the acts of the defendant, alleged to be negligence with reference to its manner of conducting the races, and whether or not the place provided by the defendant for the occupancy of those who came to see the contest, including plaintiff, amounted to the lack of the exercise of ordinary care on the part of the defendant toward the plaintiff, are questions for the jury. Whether or not the plaintiff was lacking in the exercise of ordinary care for her own safety at the time of her injury, and whether or not she assumed the risk of the danger of her position, are also questions for the jury. The jury determines not only whether or not the conditions as alleged were true, but whether or not they amount to negligence and the degree thereof.

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