Mulligan v. Blackwood, 42669

• Court: Georgia Court of Appeals
• Writing for the Court: FELTON
• Citation: Mulligan v. Blackwood, 155 S.E.2d 680, 115 Ga.App. 618 (Ga. App. 1967)
• Decision Date: 05 April 1967
• Docket Number: No. 42669,No. 1,42669,1
• Parties: F. W. MULLIGAN v. H. O. BLACKWOOD

Page 680

155 S.E.2d 680

115 Ga.App. 618

F. W. MULLIGAN v. H. O. BLACKWOOD.

No. 42669.

Court of Appeals of Georgia, Division No. 1.

April 5, 1967.

Rehearing Denied April 21, 1967.

Certiorari Denied June 8, 1967.

Syllabus by the Court

1. The plaintiff was on the premises of the defendant at the latter's request and for the sole benefit of the latter, hence was an invitee to whom the defendant owed the duty of exercising ordinary care to avoid injuring him.

2, 3. The allegations of the petition and the evidence supporting the defendant's motion for a summary judgment raised issues of negligence which must be resolved by a jury; therefore, the court properly overruled the defendant's general demurrer to the petition and his motion for a summayr judgment.

Herman O. Blackwood brought an action against F. W. Mulligan for damages for injuries caused by the defendant's alleged negligence. The petition alleges substantially as follows: The defendant, plaintiff's next-door neighbor, came to plaintiff's home and requested him to help him move a sofa from his living room to his basement. Plaintiff and defendant placed the sofa on a trailer and pulled it by automobile to within thirty feet of the basement door, then proceeded to carry the sofa by hand to the doorway, which the plaintiff entered first. The sofa jammed in the doorway and the defendant requested the plaintiff to hold the sofa while the defendant determined what portion of the sofa was jammed. Since the sofa weighed approximately three hundred pounds, the plaintiff rested part of it on his hip to relieve himself of some of the weight. While the plaintiff had the sofa resting on his hip and without any warning to plaintiff, the defendant suddenly and violently twisted the sofa, causing alleged permanent back injuries to the plaintiff. The alleged particulars of the defendant's negligence are as follows: (a) failure to warn plaintiff that he was about to move the sofa; (b) suddenly and violently twisting the sofa without warning to plaintiff; (c) failure to determine prior to entry into the basement doorway that the sofa would not passs freely through it without putting a strain on those moving it; (d) failure to provide sufficient manpower to move the sofa; and (e) suddenly and violently twisting the sofa and injuring the plaintiff as alleged.

The defendant appeals from the judgments of the trial court overruling his general demurrer to the petition and his motion for a summary judgment.

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Jack McLaughlin, Atlanta, for appellant.

Holcomb & McDuff, Frank D. Holcomb, Robert E. McDuff, Marietta, for appellee.

FELTON, Chief Judge.

1. 'One who is on the premises of another at the latter's request and for the sole benefit of the latter, is an invitee to whom the latter owes the duty of exercising ordinary care to avoid 'injuring.' Shephred v. Whigham, 111 Ga.App. 274(1), 141 S.E.2d 583; 65 C.J.S. Negligence § 63(112), p. 866. The petition affirmatively alleges that the defendant requested the plaintiff to help him. As was the situation in Shephred v. Whigham, supra, 111 Ga.App. p. 276(1), 141 S.E.2d 583, the plaintiff was not to be rewarded by pay for his work and was not there...