Mason v. Carroll

• Decision Date: 30 November 1972
• Citation: 289 Ala. 610,269 So.2d 879
• Parties: Johnnie Mae MASON etc. v. B. F. CARROLL etc. SC 81.
• Court: Alabama Supreme Court

Page 879

269 So.2d 879

289 Ala. 610

Johnnie Mae MASON etc. v. B. F. CARROLL etc.

SC 81.

Supreme Court of Alabama.

Nov. 30, 1972.

McCollough, McCollough & Callahan, Birmingham, for appellant.

Norman & Fitzpatrick, Birmingham, for appellee.

MERRILL, Justice.

Plaintiff took a nonsuit after the demurrer to Count X of the complaint was sustained and appealed.

Plaintiff, seeking damages for the wrongful death of her thirteen year old daughter, alleged that 'the Defendants entered into an agreement with the City of Birmingham, a municipal corporaton, a copy of which agreement is attached hereto as Exhibit A and incorporated herein and made a part hereof as if set forth herein in its entirety.

'Now Plaintiff avers that the Defendants negligently conducted themselves in the exercise of the license granted in the above and foregoing agreement, by constructing and causing to be maintained upon those certain premises known as 'George Ward Park', a public park, a body of water sufficiently deep for the complete immersion of the body, said body of water being approximately 20 feet in width at its greatest point and approximately 10 feet in depth at its greatest point, thereby creating an unreasonable risk to children of tender years who had become accustomed to resorting to said premises for recreative purposes at the invitation of the City of Birmingham.'

After alleging the definition of a swimming pool and the requirement to have a life guard in attendance as required by the City Code, the complaint continued:

'Now Plaintiff avers that the Defendants failed to exercise due care in and about their activities in connection with the license granted to them by the City of Birmingham in the agreement hereinabove set forth, by failing to comply strictly with Section 49--4 of the Birmingham City Code and by failing to take any steps whatsoever to reduce the risk to children of tender years involved in connection with the construction and maintenance of said body of water upon said premises and that as a proximate consequence of the aforesaid negligence of the Defendants, the Plaintiff's daughter died by drowning in said body of water on, to-wit: August 8, 1971, all to Plaintiff's damage in the sum aforesaid, hence this suit. * * * ' Section 1 of the attached agreement provides:

'1. Subject to the agreements, requirements and limitations herein expressed and any reasonable regulations governing the use of George Ward Park which said Park Board might adopt, Licensor hereby grants to Licensee the exclusive right, privilege and license of constructing and operating a nine (9) hole par 3 golf course within the area outlined on the map attached hereto which is by reference made a part hereof, and Licensor grants the Licensee the further right to sell prepackaged food and non-alcoholic drinks by vending machines or otherwise within the licensed premises.'

There is no authority given to defendant to operate anything other than the par 3 golf course, and the vending machines.

When considering the sufficiency of the allegations of a count on demurrer, the court will assume that the pleader has stated his cause as favorably as possible, and the averments will ot be aided by implications or intendments, but the pleading will be construed most strongly against him. Ramsey v. Sentell Oil Co., 280 Ala. 475, 195 So.2d 527; Harper v. Talladega County, 279 Ala. 365, 185 So.2d 388.

Although the agreement attached to the complaint refers to the City as 'Licensor' and defendant as 'Licensee,' we think the agreement is a lease instead of a license. In Holt v. City of Montgomery, 212 Ala. 235, 102 So. 49, this court said:

'One of the principal tests in determining whether or not the contract is to be interpreted as a lease or a license is whether or not it gives exclusive possession of the premises against all the world, including the owner, in which case a lease is intended, or whether it merely confers a privilege to occupy under the owner, thereby indicating a license. * * *'

Here, the defendant had the 'exclusive right, privilege and license of constructing and operating' the 3 par golf course: the agreement refers in one place to the defendant as 'Lessee' and in another place it states that 'The Licensee shall maintain throughout the term of this Lease a public liability insurance policy covering the operations of Licensee upon the Leased premises written by a corporate insurance company * * *.' (Emphasis supplied)

Also, Section 26 of the agreement provides for...