Petree v. Davison-paxon-stokes Co

• Decision Date: 25 June 1923
• Docket Number: (No. 14158.)
• Citation: 118 S.E. 697,30 Ga. App. 490
• Parties: PETREE. v. DAVISON-PAXON-STOKES CO.
• Court: Georgia Court of Appeals

30 Ga.App. 490

118 S.E. 697

PETREE.

v.DAVISON-PAXON-STOKES CO.

(No. 14158.)

Court of Appeals of Georgia, Division No. 2.

June 25, 1923.

(Syllabus by the Court.)

The petition set forth a cause of action and the court erred in sustaining the demurrers.

(Additional Syllabus by Editorial Staff.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Licensee.]

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by H. L. Petree, by next friend, against the Davison-Paxon-Stokes Company.Judgment dismissing the petition on demurrer, and plaintiff brings error.Reversed.

The plaintiff, Helen Louise Petree, of the age of six years, by her mother, as next friend, brought an action for damages against the defendantDavison-Paxon-Stokes Company, to the dismissal of which on demurrershe excepts.

It is alleged that the defendant maintained for the use of the patrons of its retail department store, and as a part of that establishment, a ladies' rest room, in which was located a slot machine, operated for profit, by which articles of a described nature, peculiar to the needs of ladies at certain periods are supplied for a coin deposited in the machine, and obtained by the manipulation of a lever or crank; and it is for injuries to her hand by this machine that the plaintiff claims damages.Further averments are to the effect that on the day of the injury the plaintiff's mother visited the store and purchased for herself a pair of hose, and thereafter repaired to the rest room and into the booth of a toilet to put them on.The plaintiff had accompanied her mother into the store and into the rest room, but not within the booth.Before the mother had entered the toilet booth she and the child had seen a lady in the manner above described procure from the slot machine one of the packages, which were tightly rolled, neatly wrapped, and labeled with bright and attractive labels.The contents of the machine were also visible through a small glass window attached thereto; and the child, thinking that the machine was a dispensor of confections, had asked her mother for a coin with which to "get some candy."The mother informed her only that the packages were not candy.Within amoment or so after the mother entered the booth she heard the child screaming, and, coming out, found its fingers caught in the saw-like mechanism in an opening in the bottom of the machine.The injuries are described and alleged to be permanent.

It is alleged that the machine was an attractive nuisance, inherently dangerous to children, who would be attracted by and to it. and that the defendant was negligent in maintaining it in the rest room within the reach of children of tender years; that it was negligently located at a height of only 39 inches above the floor, when the defendant knew, or in the exercise of ordinary care should have known, that at such a height the machine would be a dangerous instrumentality to children who might come in therest room either as patrons or in company with patrons of the store, it being usual and customary to place such machines at a height of 60 inches; that the mother had a right to assume that the device would not be dangerous to children who might handle it or place their hands about its exterior, and assumed that the machine, "in a public place in which the public and patrons of the defendant were invited to go, " was not a trap to catch the naturally curious fingers of children; that she did not have equal means with the defendant of knowing the dangerous nature of the machine, and that both she and the child were free from fault or negligence.

The several grounds of the demurrer were all general in nature except two, one of which objects that the allegation that the machine was operated for profit is irrelevant, and the other that there is no basis for the averment last quoted above that the public was invited to come to the toilet.

Harwell, Fairman & Barrett, of Atlanta, for plaintiff in error.

Rosser, Slaton & Hopkins, of Atlanta, for defendant in error.

BELL, J.[2-5] It is insisted by the plaintiff in error that the child was an invitee, and by the defendant in error that it was a trespasser.We think it was neither, but rather a licensee.There is no allegation that the child was invited to the store, and no facts are set forth from which an invitation to a child of its age could be implied.The visit of the mother was for the purpose of making a purchase for herself, and not for the child.Its presence was merely the choice of the mother, for the pleasure or convenience of herself or the child.The child did not go to the store to trade.An invitation of the owner or occupant of premises is implied by law where the person goes on the premises for the benefit, real or supposed, of the owner or occupant, or in a matter of mutual interest, or in the usual course of business, or for the performance of some duty.To constitute one person an invitee of the other there must be some mutuality of interest.

A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience, or gratification.SeeCrossgrove v. Atlantic Coast Line R. Co.(Ga. App.)118 S. E. 694, this day decided, and cases therein cited.

"The principle on which the courts distinguish a case of implied license from one of implied invitation, in the technical sense, seems to be this: Speaking generally, where the privilege of user exists for the common interest or mutual advantage of both parties it will be held to be a case of invitation; but if it exists for the mere pleasure and benefit of the party exercising the privilege, it will be held to be a case of license."17 R. C. L. 566, § 79.

The court cannot judicially know that children are invited by a merchant to come with their parents to the store, merely for a purchase by the parent for the parent, but can take notice as a matter of common knowledge, that they are permitted or licensed so to do.Where a mother is invited to come and trade, her children are commonly permitted to accompany her.

Matters of fact of which judicial notice is taken need not be alleged.Cedartown Cotton & Export Co. v. Miles, 2 Ga. App. 79, 81, 58 S. E. 289; 6 Standard Enc.Procedure, 680.§ 9.

Under the averments of the petition the rest room is to be considered as a part of the store.A member of the general public of the class usually allowed to enter a store, who enters lawfully and peacefully, although not a customer, actual or anticipatory, at the time, does not, unless admission has been forbidden him, thereby become a trespasser, but is a licensee.Rollestone v. Cassirer, 3 Ga. App. 161, 59 S. E. 442.The plaintiff in this case was clearly a licensee, and not an invitee.It is positively alleged that the rest room was maintained for the use of the defendant's patrons.The later indirect averment that the plaintiff's mother assumed that the machine in a public place in which the public and patrons of the defendant were invited to come was not a trap to catch the naturally curious fingers of children cannot be held to enlarge the averment that the rest room was merely for the use of patrons, but the term "public" will be held to imply that part of the public comprising the defendant's patrons.This construction, in our opinion, is proper under the rule that pleadings are to be construed most strongly against the author.

In the case of a 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,...