Mandeville Mills v. Dale

• Decision Date: 14 October 1907
• Docket Number: 453,454.
• Citation: 58 S.E. 1060,2 Ga.App. 607
• Parties: MANDEVILLE MILLS v. DALE (two cases).
• Court: Georgia Court of Appeals

58 S.E. 1060

2 Ga.App. 607

MANDEVILLE MILLS v. DALE (two cases).

Nos. 453, 454.

Court of Appeals of Georgia

October 14, 1907

Syllabus by the Court.

The elements of legal liability of the owner or proprietor of premises for injuries occasioned to persons thereon vary according to whether the person injured was, at the time of the injury, a trespasser, a licensee, a visitor under invitation express or implied, or a person standing in some special relation recognized by law.

(a) Under the allegations of the petition in the present case the injured person was a visitor by invitation upon the defendant's premises.

(b) When the owner or proprietor of premises by invitation express or implied, induces or leads others to come upon his premises for a 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 for such use.

[Ed Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 42-47.]

The petition in the present case is good against general demurrer.

A petition which does not aver a time as to every material or traversable allegation is subject to special demurrer pointing out the defect.

Error from City Court of Carrollton; W. C. Hodnett, Judge.

Consolidated actions of S. J. Dale and Ella Dale for the wrongful death of their son, Roy Dale, deceased, against the Mandeville Mills. From judgments for plaintiffs, defendant brings error. Affirmed.

For the homicide of Roy Dale, his father and mother brought separate suits against the Mandeville Mills. The allegations of both petitions, so far as matters material to the questions here made are concerned, are identical. In substance, the petitions state that Roy Dale was at the time of his death 12 years old; that he was learning the profession of a mill operative in defendant's factory, but was off duty on temporary leave that he might attend school; that on the day of his death he came into the defendant's mill to see his father, who was employed there, and who worked on the second floor, on a matter of business; "that there was a narrow stairway leading from the room below up to the floor upon which the father was at work; that there was no banisters, or railing, to said stairway, and the steps upon the same from long and constant use had become very slick; that the said Roy Dale, after having visited his father, left him to return to his home, and started to descend said stairway; that when he had gone some two or three steps down said stairway his feet slid from under him, and there being no banisters, as aforesaid, to protect persons ascending and descending said stairway, he fell violently to the floor below and was so injured, maimed, and bruised, that he died some 36 hours thereafter; that defendant, the said Mandeville Mills, through its agents, officers, and employés, were well informed and aware of the dangerous condition of said stairway, and had made no effort to remedy the same, notwithstanding its attention had been frequently called to the same; that defendant was guilty of gross negligence in erecting said stairway and not putting a banister or hand railing upon the same; that they were guilty of gross negligence for permitting said stairway to remain in said dangerous condition after having ample opportunities to learn of its dangerous condition having increased by means of the steps wearing slick and dangerous."

By amendment it is alleged, among other things, "that at the time Roy Dale visited his father, as set out in the original petition, he entered the room downstairs in which his father discharged some of the duties necessary as an employé of defendant, and was informed that the latter was upstairs. Whereupon he ascended the stairway hereinbefore described; that being the only means by which he could go from said room upstairs. Defendant through its agent and employé, S. T. Pitts, was aware of the presence of said Roy Dale, and of his ascending and descending said stairway at the time of said injuries, and made no objection, notwithstanding it had full knowledge of the danger incurred and the tender years of the said Roy. Dale. That the said Roy Dale was invited by the defendant, through its agents and employé, Sank Lovvorn, who had authority so to do, to visit his father while at work in said mill at any time on business. Said stairway heretofore referred to was erected for the purpose of furnishing a way for persons upon the lower floor and in the room first entered by the said Roy Dale to ascend to the second floor and descend from the second floor to the first floor, and was being used for that purpose. The slick and slippery condition of said stairway was a latent defect in the same, which was unknown to the said Roy Dale, and which could not have been discovered by him in the exercise of ordinary care."

The defendant filed a general demurrer; also, special demurrer to the paragraph of the petition alleging the invitation, on the ground that no time was averred. The defendant's demurrers having been overruled, it brings error.

S. W. Harris and Brown & Root, for plaintiff in error.

Hamrick & Smith, for defendants in error.

POWELL J.

1. The liability of the owner or proprietor of premises for injuries received by persons while present upon such premises may be viewed in four aspects: (1) Where the person injured is there as a trespasser; (2) where he is there as a licensee; (3) where he is there by invitation of the owner or proprietor; (4) where he is there under some other special relation.

In the first case, that of the trespasser, liability arises only where the injury has been occasioned by the willful and wanton negligence of the proprietor or owner. No duty of anticipating his presence is imposed, and as was pointed out by this court in Charleston & W. C. Ry. Co. v. Johnson, 1 Ga.App. 441, 57 S.E. 1064, the duty to use ordinary care to avoid injuring him after his presence and danger is actually known is in point of fact merely the duty not to injure him wantonly or willfully. So, in the first case, wanton or willful negligence is essential to liability.

In the second case, that of the licensee, there is a slightly higher duty on the part of the owner or proprietor of the premises. He must not wantonly and willfully injure the licensee, and since his presence as a result of his license is at all times probable, some care must be taken to anticipate his presence and ordinary care and diligence must be used to prevent injurying him after his presence is known or reasonably should be anticipated. The fundamental concept in this class of cases, as in that of trespassers, is of a liability only for willful or wanton injury; but it is usually willful or wanton not to exercise...