Moone v. Smith
| Decision Date | 05 October 1909 |
| Docket Number | (No. 1,731.) |
| Citation | 6 Ga.App. 649,65 S.E. 712 |
| Parties | MOONE. v. SMITH et al. |
| Court | Georgia Court of Appeals |
A customer of a "soft drink, " billiard, and pool room, or other like places, is there by the invitation of the proprietor, and, while therein lawfully engaged, it is the duty of the proprietor to protect him from injury caused by the misconduct, not only of his own employes, but of other customers and third persons. If, therefore, there is any reasonable apprehension of danger to such customer from the unlawful conduct of other customers or third persons, or if a personal injury from the misconduct of other customers or third persons could have been prevented by the proprietor by the exercise of ordinary care and diligence, he may be guilty of negligence for his failure to use it, and consequently responsible in damages.
[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.*]
The duty assumed by the owner of a place of amusement or recreation where the public are invited for his profit and their pleasure is analogous to that which the law imposes upon carriers of passengers, differing only in the standard of care required. In the latter, the standard is extraordinary care* and in the former, ordinary care.
[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§"42-44; Dec'Dig. § 32.*]
The allegations of the petition, if proved, were sufficient to send the case to the jury.
(Syllabus by the Court.)
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by L. P. Moone against Paul Smith and another. Judgment for defendants, and plaintiff brings error. Reversed.
Moone sued Smith and Morrow for damages on account of personal injuries. The trial court sustained a demurrer to the petition, and dismissed it, and this is the error assigned. The petition, in substance, sets forth the following facts: The defendants were partners and joint owners in the business of running a pool and billiard room, and sold therein cigars, tobacco, and "soft drinks." Their place of business is a public place and resort for recreation and amusement, and they solicit and invite the patronage of the public. On the day set out in the petition the plaintiff went into this place for the purpose of amusement, and engaged in playing a game of pool, and, while so engaged and conducting himself in a proper and orderly manner, a quarrel arose in the room between four or five men who were intoxicated. The quarrel among these men began in the rear of the room some distance from where the plaintiff was engaged in playing. Those who were engaged in this quarrel became disorderly and began cursing. Four of them who were drunk threatened to do violence to the person of one who was not drunk, and forced this one to retreat from one part of the room to another. This disorderly conduct continued for some 10 or 15 minutes, during which time there was a continuous brawl between the parties, and a consequent noise and disturbance was noticeable in all parts of the room. One of the defendants was present in the room during the entire continuance of this disorderly conduct and witnessed it, and the employes of the place who were waiting on customers in various parts of the room were also witnesses of the disorder. Notwithstanding a breach of the peace was imminent and actually committed, neither the proprietor nor any of his agents made any effort to quell the disorder by personal interference or by calling on the police. While this disorderly conduct was in progress, plaintiff being in no way involved in it, continuing his game, relying upon the protection due him and the other peaceable and orderly customers from the proprietor, the difficulty reached its climax, and the fighters suddenly precipitated themselves to the place where the plaintiff was standing, ran against him with such suddenness and violence that he was unable either to withdraw or to defend himself, and in the melee one of the drunken men engaged in the fight struck him a terrible blow in the eye, putting the eye entirely out and involving his other eye, threatening complete blindness. He charges that the proprietor and his agents had ample notice and opportunity to interfere and prevent the continuance and culmination of the brawl and fight, but wholly neglected and failed to do so and to perform their duty for the protection of plaintiff and other peaceable and orderly customers.
A. H. Davis, for plaintiff in error.
Jas. L. Key, for defendants in error.
HILL, C. J. (after stating the facts as above). The essential foundation for all actionable negligence is the existence of a duty which the defendant owed to the plaintiff in connection with the particular subject-mat-ter and the breach of that duty by the defendant. The duty is defined, by the law. The breach of that duty is determined by the particular facts. Where the duty and the breach concur, a legal injury arises, and, if damage results, an action will lie. Of course, where the allegations of the petition, when most favorably considered for the plaintiff, show neither duty nor breach, or duty without breach, or show that the plaintiff's injury was caused by his own negligence, or that he could by the exercise of ordinary care have avoided the consequences of the defendants' negligence, the trial court on demurrer should put an end to the case. Upon a critical examination of the allegations of the petition, our conviction is that they suffice to show that the defendant owed a duty to the plaintiff while he was in his place of business. This duty was to use ordinary care and diligence to protect the plaintiff while he was in the defendant's place of business lawfully engaged from injury, injury either from the unsafe condition of the premises themselves, from his own conduct or from that of his employes, or injury from any vicious or improper persons who were in the room either as customers or otherwise. The defendants had invited the plaintiff into their...
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