Slaughter v. Slaughter

• Decision Date: 15 July 1970
• Docket Number: No. 45374,No. 2,45374,2
• Court: Georgia Court of Appeals
• Parties: Blanche G. SLAUGHTER v. C. F. SLAUGHTER, Jr. et al

Page 119

177 S.E.2d 119

122 Ga.App. 374

Blanche G. SLAUGHTER v. C. F. SLAUGHTER, Jr. et al.

No. 45374.

Court of Appeals of Georgia, Division No. 2.

July 15, 1970.

Rehearing Denied July 30, 1970.

Certiorari Denied Sept. 15, 1970.

L. B. Kent, Louis H. Mitchell, Columbus, for appellant.

Swift, Pease, Davidson & Chapman, Max R. McGlamry, Columbus, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Mrs. Blanche G. Slaughter sued Mrs. Mary F. Slaughter, her daughter, and Charles F. Slaughter, Jr., her son-in-law, for injuries received when she fell in the home of the son-in-law and daughter. The depositions of the plaintiff and the daughter were taken, revealing the following factual situation.

Mary, the daughter, called plaintiff and asked her to come over to take care of Mary's son Steve, who was recuperating from influenza, while Mary went grocery shopping. Plaintiff acceded to the request and went to Mary and her son-in-law's home. Upon arrival Steve was on the couch in the living room. At one end of the room were two easy chairs and a lamp table. Plaintiff seated herself in the chair next to the couch, and Mary sat in the other easy chair next to her. After looking at some getwell cards, plaintiff got up and went to Steve on the couch to see whether he needed aspirin. Mary got up from her chair, kicking out a footstool which accompanied that particular chair, went into the kitchen to get some ginger ale, brought it back and handed it to plaintiff who was to give it to Steve, took some toast crumbs from Steve, and walked back into the kitchen. Plaintiff gave the ginger ale to Steve and, when he was finished with it, got up out of her chair and took the glass or mug from him at the couch. Mary called from the kitchen that she was going to throw the toast crumbs to the birds, and after a few seconds when she had taken two or three steps in the kitchen she heard plaintiff fall in the living room. Plaintiff had turned from the couch and started toward the kitchen with the mug when Mary called to her, and, looking toward the kitchen, she fell forward, presumably over the footstool in her path, though she testified that she 'fell over something' and that later her daughter told her that she had kitcked the footstool out and that it was what she fell over. The daughter did not see her mother fall, but surmised that she fell over the footstool.

Mary and her husband had been living in the house for approximately six years and the same furniture, including the footstool, had been in the living room during that time. Plaintiff had visited there approximately once a week during the six years, and she had observed the footstool by the same chair on many occasions. The footstool was large, and on the occasion in question it was not hidden but was away from the chair, a position it did not generally occupy. The lighting and surroundings were such that it was readily observable.

The trial court granted summary judgment for defendants, and plaintiff appeals. Held:

1. Plaintiff alleges no act of negligence, and offers no proof of any, against her son-in-law, Charles F. Slaughter. She does allege that he and the daughter own the house where they live and where she says she was injured, but ownership alone imposes no liability for injury sustained on the premises. The owner or occupier of land is not an insurer of the safety of those who may go thereon. Feldman v. Whipkey's Drug Shop, 121 Ga.App. 580(3), 174 S.E.2d 474. There is no liability from ownership alone, Golf Club Co. v. Rothstein, 97 Ga.App. 128, 133, 102 S.E.2d 654, aff'd 214 Ga. 187, 104 S.E.2d 83; Hines v. Bell, 104 Ga.App. 76, 85, 120 S.E.2d 892, or from joint ownership, Miles v. Harrison, 223 Ga. 352, 155 S.E.2d 6, or from cotenancy, Smith v. Inman, 32 Ga.App. 24, 122 S.E. 632. It must appear that the injury resulted from a breach of some duty owed by the defendant to the injured party.

Nor is the husband liable for torts of his wife merely because of the relationship. Durden v. Maddox, 73 Ga.App. 491, 493, 37 S.E.2d 219. Accord: Curtis v. Ashworth, 165 Ga. 782, 142 S.E. 111, 59 A.L.R. 1457. 'The agency of a wife must be proved as in other cases, except when the law presumes agency. ¹ Code § 53-509. There is no agency from mere ownership. Graham v. Clevelend, 58 Ga.App. 810, 200 S.E. 184.' Durden v. Maddox, 73 Ga.App. 491, 493, 37 S.E.2d 219, 220, supra. 'In this State a husband now is liable for the torts of his wife only when they are committed by her in the capacity of agent.' Miller v. Straus, 38 Ga.App. 781(2), 145 S.E. 501. Agency of the wife in the creation of a 'dangerous condition' does not appear, even inferentially.

2. While the parties argue the question as to whether plaintiff was an invitee, in which event she would be owed the duty of ordinary care in keeping the premises safe (Code § 105-401), or whether she was a social guest, in which event she would be owed a lesser degree of care (Laurens v. Rush, 116 Ga.App. 65, 156 S.E.2d 482; Patterson v. Thomas, 118 Ga.App. 326, 163 S.E.2d 331), the evidence clearly shows an absence of negligence on the part of either defendant, even assuming, but not deciding, that plaintiff was an invitee.

'A landowner is not the insurer of an invitee's safety.' Watson v. Citizens & Southern Bank, 103 Ga.App. 535, 536, 120 S.E.2d 62, 64. Before a recovery is authorized for the plaintiff in an action against a homeowner for injuries suffered by the plaintiff while in the home it must be shown that the conditions allegedly causing the injuries were less safe than those provided by ordinarily prudent homeowners for their invitees. Brand v. Pope, 103 Ga.App. 489, 491, 119 S.E.2d 723. Accord: Taff v. Harris, 118 Ga.App. 611, 164 S.E.2d 881; Pettit v. Stiles Hotel Co., 97 Ga.App. 137, 102 S.E.2d 693. And, if the object over which the plaintiff falls is not hidden, camouflaged, defective, or intrinsically unsafe, and is conspicuous, obvious, and apparent so that an ordinarily prudent landowner would not reasonably anticipate danger from its existence or location to a person in the exercise of ordinary care for his own safety, there is no liability on the part of the landowner or occupier. See, e.g., Lane Drug Stores v. Story, 72 Ga.App. 886, 35 S.E.2d 472 (stool in aisle of defendant's store); DeLay v. Rich's, Inc., 86 Ga.App. 30, 70 S.E.2d 546 (footstool in aisle of defendant's shoe department); Tinley v. F. W. Woolworth Co., 70 Ga.App. 390, 28 S.E.2d 322 (scales in aisle of defendant's store); National Bellas-Hess Co. v. Patrick, 49 Ga.App. 280, 175 S.E. 255 (planks in aisle of defendant's store); McMullan v. Kroger Co., 84 Ga.App. 195, 65 S.E.2d 420 (concrete bar in defendant's parking lot); Moore v. Kroger Co., 87 Ga.App. 581, 74 S.E.2d 481 (push-cart in aisle of grocvery store); Rich's, Inc. v. South, 91 Ga.App. 487, 85 S.E.2d 774 (boards in aisle of defendant's store). In Tinley v. F. W. Woolworth Co., 70 Ga.App. 390, 393, 28 S.E.2d 322, 323, supra, where plaintiff tripped over some scales in the aisle of defendant's store, we held: 'It should be borne in mind that the merchant, the occupier of the building, is not an insurer. As has been said in one case, 'What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good business man is in such matters accustomed to use.' McCrory Stores Corporation v. Ahern, 65 Ga.App. 334, 340, 15 S.E.2d 797, 800. The degree of diligence required here 'is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.' Code § 105-201. The question here is, could the mischief have reasonably been foreseen? The rule must be applied with reference to the situation of the property and its arrangement for the conduct of the business. A merchant must have a place to locate his goods, counters, and appliances with which to conduct his business, and when such appliances are not placed so as to threaten danger to those visiting the store, and are in full sight, and within the observation of everyone, the merchant is not liable for accidents which result from carelessness and inattention to the surroundings. We do not think that the allegations of the petition show that the defendant neglected any duty it owed...