Sammons v. Garner, 6 Div. 528

• Decision Date: 01 May 1969
• Docket Number: 6 Div. 528
• Citation: 284 Ala. 131,222 So.2d 717
• Parties: Wilburn C. SAMMONS v. R. L. GARNER et ux.
• Court: Alabama Supreme Court

Page 717

222 So.2d 717

284 Ala. 131

Wilburn C. SAMMONS v. R. L. GARNER et ux.

6 Div. 528.

Supreme Court of Alabama.

May 1, 1969.

Rehearing Denied May 29, 1969.

Windham, Perdue, Johnson & Bryan, Birmingham, for appellant.

London, Yancey, Clark & Allen, Birmingham, for appellees.

SIMSPON, Justice.

This is a suit for damages filed by the appellant for the death of his minor son, and also appellant's suit for damages resulting to him by virtue of the personal injury sustained by appellant's wife on the same occasion.

The amended complaint contained 12 counts, nine relating to the death of the minor child and three relating to the personal injury sustained by appellant's wife.

The appellees herein, defendants below, filed demurrers to these counts, containing some 136 grounds which were sustained. Appellants took a nonsuit and appealed.

The gravamen of the complaint is the following:

On September 10, 1964, the plaintiff's minor son, Barry Maurice Sammons, then three years of age, visited in the home of the defendants, accompanied by his mother, plaintiff's wife. It is alleged that the small child and his mother were on the premises of the defendant by invitation, express or implied. While so visiting, the small child went into a utility room adjacent to the home of defendants. It is alleged in one count that while in the utility room adjacent to a carport connected to the residence located on said premises, and at a place which was within the scope of said invitation, the said utility room was unsafe by reason of an uncapped can or container of gasoline imminently dangerous all of which facts were known, or should have been known, to the defendants; and plaintiff further avers that the defendants negligently failed to take precautions to keep the premises reasonably safe for said minor and at said time and place said can or container of gasoline caught fire or otherwise exploded, and as a proximate consequence thereof the minor was so burned, etc. that he died. The other counts allege these facts in various ways.

The single question before us is whether the trial court erred in sustaining demurrers to these counts.

In every action grounded upon negligence there are three essential elements to a right of recovery. First, a duty owing from the defendant to the plaintiff; secondly, a breach of that duty; and third, an injury to plaintiff in consequence of that breach. Simpson v. Ward, 38 Ala.App. 49, 77 So.2d 376.

We must examine this complaint based upon those principles. Initially, it is now settled in this state that for purposes of defining the duty flowing from the host to a social guest, a social guest has been defined in this state as a licensee, not an invitee. Morgan v. Kirkpatrick, 276 Ala. 7, 158 So.2d 650. This case also defined the duty owed to a licensee as follows, citing Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 652, 92 A.L.R. 1002, 1005:

"* * * A guest enjoying by invitation unrecompensed hospitality at the house of another must be presumed to accept such generous entertainment with an understanding that he accommodates himself to the conditions of his host. He cannot ask for better things than the latter possesses. It is difficult to import into such relationship a duty on the part of the host to make improvements or reconstructions because thereby his home may be more convenient or more safe for those accepting his gratuitous hospitality. The guest must accept the premises as he finds them."

The duty owed to a licensee, and especially to children of tender years, is expressed in Thompson v. Alexander City Cotton Mills Co., 190 Ala. 184, 67 So. 407, and followed in Alabama By-Products Corporation v. Cosby, 217 Ala. 144, 115 So. 31, where it is stated:

'* * * though the proprietor is not responsible for the negligent act or omission, * * * yet the inherently dangerous character of the instrumentality installed or created on his premises raises the 'proprietor's duty to take reasonable care that his invitees or licensees will not suffer injury from such agency, and this duty is emphasized where notice or knowledge of the customary presence of children about such danger is possessed by the proprietor'; that is to say, 'an element of this duty is the' law's 'exaction...