Smith v. Ammons

• Decision Date: 06 April 1972
• Docket Number: No. 27015,27015
• Citation: 228 Ga. 855,188 S.E.2d 866
• Parties: Embry SMITH et al. v. O. L. AMMONS, Sr., et al.
• Court: Georgia Supreme Court

Page 866

188 S.E.2d 866

228 Ga. 855

Embry SMITH et al. v. O. L. AMMONS, Sr., et al.

No. 27015.

Supreme Court of Georgia.

April 6, 1972.

Bennet, Gilbert, Gilbert & Whittle, Wallace E. Harrell, Brunswick, for appellants.

J. S. Hutto & Associates, J. S. Hutto, Eugene Highsmith, Cowart, Sapp & Gale, George B. Cowart, Brunswick, Neely, Freeman & Hawkins, J. Bruce Welch, Atlanta, for appellees.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

This is a negligence case. The plaintiff sued her employer after a light fixture came loose from the ceiling and struck her. The jury awarded the plaintiff damages. The judgment was affirmed by the Court of Appeals, 125 Ga.App. 69, 186 S.E.2d 469. We granted certiorari to review the trial court's charges on the master's duty to his employees in furnishing a place to work. Workmen's compensation is not involved in this case.

The trial judge charged the jury: (1) 'Where the owner or occupier of land by express or implied invitation induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such person for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.' (Emphasis supplied).

He also charged: (2) 'Every employer and every owner of a place of employment, place of public assembly, or public building, shall so construct, repair and maintain the same as to render it reasonably safe.' (Emphasis supplied).

The applicant in certiorari contends that the correct charge on this subject is: 'It is the duty of the master to exercise ordinary care to provide and maintain a reasonably safe place for his servant to work.' (Emphasis supplied). See Holman v. American Automobile Insurance Co., 201 Ga. 454, 459, 39 S.E.2d 850.

He argues that the first charge is erroneous because the word 'reasonably' is omitted so that this charge incorrectly requires the owner to use 'ordinary care' in keeping the premises 'safe'.

Conversely, he argues that the second charge is erroneous because the words 'ordinary care' are omitted so that this charge incorrectly requires the owner to keep the premises 'reasonably safe.'

We agree the charge contended for by the applicant in certiorari is a correct charge. However, we disagree that the charges given by the trial judge are erroneous.

The first charge is verbatim from Code § 105-401 which has been held to apply to a master-servant relationship. Williamson v. Kidd, 65 Ga.App. 285, 15 S.E.2d 801; Rogers v. Atlanta Enterprises, 89 Ga.App. 903, 906, 81 S.E.2d 721.

The second charge is verbatim from Code Ann. § 54-123(b) and although this Act is stated to apply only to employers of 8 or more persons, which is not the case here, we think it was not error to charge it as will appear in the following discussion.

In our opinion the pronouncement of the first division in Otis Elevator Co. v. Rogers, 159 Ga. 53, 54, 125 S.E. 60, applies here and we adopt it. It is there stated, 'There is in fact but little substantial difference between providing a reasonably safe place to work and using reasonable diligence to make such a place safe. The rule laid down in Middle Georgia & Atlantic R. Co. v. Barnett, 104 Ga. 582, 30 S.E. 771, Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S.E. 443, and Norris v. American Railway Express Co., 156 Ga. 150, 118 S.E. 686, is, in our opinion correct. In some cases the rule has been stated by this court to be that it was the duty of the master to furnish a 'reasonably safe place.' Such is the ruling in Jackson v. Merchants' & Miners' Transportation Co., 118 Ga. 651, 45 S.E. 254. In Atlantic etc., Railroad v. Reynolds, 117 Ga. 47, 43 S.E. 456, it was said that the master is held to only ordinary care in furnishing his servan 'a reasonably safe place to work.' In Betts (Co.) v. Hancock, 139 Ga. 198, 77 S.E. 77, it was said that it was inaccurate for the court to instruct the jury that 'it was the duty of the defendant in this case to have used, in the transaction under investigation, ordinary care and diligence, as I have defined it to you, in furnishing the plaintiff a safe place to work,' but a new trial was not granted because of this instruction. The verbiage used by this court in passing upon this question has not always been precisely the same, but the lack of harmony has been more apparent than real.

'The oldest ruling by this court precisely in point is that in the case of Middle Georgia & Atlantic R. Co. v. Barnett, supra, a full-bench, unanimous decision, and should be adhered to. It followed in principle the case of Atlanta & Charlotte (AirLine) Ry. v. Ray (70 Ga. 674), supra.

'Whether or not the master is liable in any given case depends upon whether or not he has been derelict in the duty imposed upon him by law, to wit, the exercise of ordinary diligence. If he has been faithful to that duty, no liability can attach to him for...