Roach v. Dozier, 37074

• Decision Date: 09 April 1958
• Docket Number: No. 1,No. 37074,37074,1
• Parties: Mary L. ROACH v. Weymond DOZIER
• Court: Georgia Court of Appeals

Page 691

103 S.E.2d 691

97 Ga.App. 568

Mary L. ROACH v. Weymond DOZIER.

No. 37074.

Court of Appeals of Georgia, Division No. 1.

April 9, 1958.

Rehearing Denied April 28, 1958.

Syllabus by the Court.

Under the facts of this case constructive notice was not sufficient to charge the defendant with negligence, therefore, the court did not err in sustaining the general demurrers to the petition and in dismissing the action

Mary L. Roach sued Weymond Dozier for damages growing out of injuries to her son allegedly caused by the defendant's negligence. The plaintiff alleged in part as follows: that Dozier Funeral Home, Inc., is in the business of a funeral home and undertaker in Rome, Floyd County, Georgia, and as such on or about January 20, 1956, conducted and operated such a funeral home business and in connection therewith owned ambulances and hearses and the usual properties incident to the preparation and burial of the dead; that the defendant, Weymond Dozier, on said date, was the sole embalmer and funeral director and was also the secretary of the corporation; that the defendant was the sole employee of said corporation except for casual employees, and was the sole person who performed any general duties for the corporation and was charged with the responsibility for the general conduct of the business of the corporation and performed such duties; that said corporation is insolvent; that the place of business conducted by the corporation and the place of residence of the defendant Weymond Dozier are contiguous to each other, in that said funeral home is in one side of a dwelling house and said Weymond Dozier's residence is in the other side; that two funeral hearses owned by the corporation in the proper conduct of the business are committed to the care, management and direction of the defendant and the vehicles are in the constant and continuous care of the defendant; that defendant Weymond Dozier always left said funeral hearses parked in the rear of the dwelling house when they were not in use and always left the ignition key in the vehicles; that this continuous conduct was well known to one John Dixon; that the defendant knew that John Dixon had knowledge that the ignition keys were always left in the funeral hearses; that the funeral hearses are unusual and uncommon vehicles inasmuch as said vehicles are not generally owned by individuals, but are owned almost exclusively by funeral homes and hospitals; that the funeral hearses are of unusual construction and design, and hold a peculiar interest because of their odd construction and their association with funerals, death and emergencies, and have a peculiar interest for children who have yound and inquiring minds, and are singularly attractive to errant children who are prone to investigate and satisfy their natural curiosity about such vehicles; that on or about January 20, 1956, John Dixon, a minor age 15, the nephew of the defendant and a member of defendant's family, was at the funeral home at about 10 o'clock in the morning; that at said time and place the defendant and his...