Sarno v. Hoffman

• Decision Date: 15 July 1964
• Docket Number: No. 40546,2,3,Nos. 1,40546,s. 1
• Citation: Sarno v. Hoffman, 110 Ga.App. 164, 138 S.E.2d 96 (Ga. App. 1964)
• Parties: Jay J. SARNO et al. v. Charles L. HOFFMAN
• Court: Georgia Court of Appeals

Page 96

138 S.E.2d 96

110 Ga.App. 164

Jay J. SARNO et al. v.Charles L. HOFFMAN.

No. 40546.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 15, 1964.

Rehearing Denied July 30, 1964.

Syllabus by the Court

1 (a) When a guest-innkeeper situation is alleged giving rise to a duty on the part of the latter to provide safe premises and appliances for the former, allegations of constructive knowledge of a defective or dangerous condition are sufficient.

(b) As against a general demurrer, mere general allegations of negligence are sufficient.

2.It is only where it clearly appears from the petition that the negligence charged against the defendant was not the proximate and effective cause of the injury that the court may upon general demurrer, as a matter of law, so determine.

The plaintiffCharles Hoffman filed an action for damages in the Superior Court of Fulton County in which he alleged that, while a paying guest of the defendants, operating as Atlanta Cabana Motor Hotel, Ltd., he took a shower in the bathroom provided for him, standing in the bathtub and manipulating the shower controls.He had completed his bath and was in the process of rinsing when the water suddenly and without warning became scalding hot; plaintiff attempted to escape its was unsafe for use and defendants were against the side of the tub.In addition to general allegations that the shower was unsafer for use and defendants were negligent in failing to provide him with safe and suitable facilities, plaintiff alledged: 'Defendants knew, or in the exercise of ordinary care should have known, that the water was too hot and that the pressure and flow of the water was uneven * * * that the temperature of the water was too high for bathing, and the failure on the part of the defendants to repair or replace the defective plumbing apparatus when it was discovered, or would have been discovered by ordinary care and diligence, constitutes ordinary negligence * * *.The defendants were further negligent * * * (d) in failing to repair or replace the defective plumbing apparatus when it was discovered, or could have been discovered by the exercise of ordinary care and diligence.'A general demurrer was overruled and the defendants except.

T. J. Long, Ben Weinberg, Jr., Atlanta, for plaintiffs in error.

John E. Rogers, Maurice H. Hilliard, Jr., Atlanta, for defendant in error.

HALL, Judge.

1.Where the facts show a relationship, such as that between innkeeper and guest, from which a duty to know the conditions of the premises and facilities arises, then a general averment that the defendant knew or should have known of the defects from which injury resulted is sufficient.Hilliknghorst v. Heart of Atlanta Motel, 104 Ga.App. 731(1), 122 S.E.2d 751.The duty of an innkeeper is to use ordinary care and diligence to furnish the guest with reasonably safe accommodations.Hotel Richmond v. Wilkinson, 73 Ga.App. 36, 35 S.E.2d 536.This duty extends to appliances, and where it is shown that because of a defect in the plumbing or shower fixtures a guest is scalded by hot water, or is injured while attempting to escape from a jet of hot water due to such defect, actionable negligence may be predicated on such facts.Ferguson Residence Club, Inc. v. Farnum, Sup., 110 N.Y.S.2d 67;Wallace v. Speier, 60 Cal.App.2d 387, 140 P.2d 900.The theory that a presumption of negligence arises against an innkeeper an a mere showing that a guest was injured on his premises, even when the circumstances are such as to require extraordinary rather than ordinary care on the part of the defendant, seems to be negatived in Bullard v. Rolader, 152 Ga. 369, 110 S.E. 16.Such a presumption would seem to be no more than to apply the doctrine of res ipsa loquitur to pleadings, which cannot be done.Fulton Ice and Coal Co. v. Pece, 29 Ga.App. 507, 116 S.E. 57.A plaintiff is required to set out his cause of action plainly, fully and distinctly.Code§ 81-101.As against special demurrer this petition would undoubtedly be defective; it does not appear how the plumbing wad defective or in what way the defect was related to its consequences, but the general allegation is sufficient to meet the general demurrer.Atlanta, B. & A. R. .Co. v. Whitehead, 31 Ga.App. 89, 119 S.E. 539;Hudgins v. Coca Cola Bottling Co., 122 Ga. 695(1), 50 S.E. 974.'All that a plaintiff need allege to withstand the attack of a general demurrer is the factum of the duty, * * * a violation of that duty, and damages resulting from that violation.'Vickers v. Georgia Power Co., 79 Ga.App. 456, 458, 54 S.E.2d 152;Atlanta Paper Co. v. Sigmon, 82 Ga.App. 730, 734, 62 S.E.2d 363.

2.The defendant contends that the petition is defective in that it fails to show a causal connection between the defendant's negligence and the plaintiff's injury.While on general demurrer the petition must be strictly construed against the pleader, 'Pleadings are to be given a reasonable intendment, and a strained and unnatural construction will not be given them in order to raise an inference against the pleader.'National Fire Insurance Company v. Baneister, 104 Ga.App. 13(1), 121 S.E.2d 46;Southern Bonded Warehouse Company v. Roadway Express, Inc., 104 Ga.App. 458(1), 122 S.E.2d 14;Friedsam v. Sawan, Inc., 103 Ga.App. 500, 503, 119 S.E.2d 707;Raines v. Jones, 96 Ga.App. 412, 414, 100 S.E.2d 157;Belk-Gallant Co. of Lagrange v. Cordell, 107 Ga.App. 785, 787, 131 S.E.2d 575;New Cigar Co. v. Broken Spur, Inc., 103 Ga.App. 395, 398, 119 S.E.2d 133;Georgia Power Company v. Leonard, 187 Ga. 608, 614, 1 S.E.2d 579.

The following allegations implicitly if not explicitly state the issue that injury and damage to the plaintiff resulted from the defendant's negligence.While the plaintiff was using the bath facilities of Room 541 the water became hot and scalding, causing the plaintiff to jump, slip, and fall, and to be permanently injured and disfigured, and to be hospitalized for his injuries.The plaintiff incurred hospital and other expenses because of the defendant's negligence.The defendants knew or should have known that the water temperature was too high for bathing, that the pressure and flow of the water was uneven, and that the bathing facilities were not safe, and failed to repair the defective plumbing apparatus.The defendant was negligent in failing to repair or replace the defective plumbing apparatus, in failing to provide the plaintiff with safe facilities, and in failing to warn the plaintiff of the unsafe condition of the bathroom facilities in Room 541.

Other causes from which the injury might have arisen may be proved to defeat the plaintiff's action, but the facts alleged in the petition do not indisputably show the injuries resulted from other causes.Only when this appears affirmatively from the petition can a general demurrer be sustained.Rome R. & Light Co. v. King, 30 Ga.App. 231, 232, 117 S.E. 464;Rome R. & Light Co. v. Jones, 33 Ga.App. 617, 618, 127 S.E. 786;Pollard v. Heard, 53 Ga.App. 623, 626, 186 S.E. 894;Southern Road Builders, Inc. v. Associated Petroleum Carriers, 95 Ga.App. 263, 265, 97 S.E.2d 629;Whitsett v. Hester-Bowman Enterprises, Inc., 94 Ga.App. 78, 93 S.E.2d 788;Martin v. J. M. McAfee & Co., 31 Ga.App. 690, 691, 122 S.E. 71;Wilson v. Ray, 64 Ga.App. 540, 543, 13 S.E.2d 848.

The failure to use the magic words 'proximate cause' or 'direct result' in alleging the causal connection between the defendant's negligence and the plaintiff's injury is subject to special demurrer but not to general demurrer.Atlanta, B. & A. R. Co. v. Whitehead, 31 Ga.App. 89, supra;Wright Contracting Company, Inc. v. Davis, 90 Ga.App. 548, 552-553, 83 S.E.2d 232.'It is only where it clearly appears from the petition that the negligence charged against the defendant was not the proximate and effective cause of the injury that the court may upon general demurrer, as a matter of law, so determine.'Martin v. McAfee & Co., 31 Ga.App. 690, 691, 122 S.E. 71, 72;(Emphasis supplied).Wilson v. Ray, 64...