Smith v. Jewell Cotton Mill Co

• Decision Date: 08 February 1923
• Docket Number: (No. 13537.)
• Citation: 29 Ga.App. 461,116 S.E. 17
• Parties: SMITH . v. JEWELL COTTON MILL CO.
• Court: Georgia Court of Appeals

29 Ga.App. 461

116 S.E. 17

SMITH .

v.JEWELL COTTON MILL CO.

(No. 13537.)

Court of Appeals of Georgia, Division No. 2.

Feb. 8, 1923.

(Syllabus bp the Court.)

Error from Superior Court, Warren County; E. T. Shurley, Judge.

Action by Ellen, Smith against the Jewell Cotton Mill Company. Judgment for defendant on demurrer, and plaintiff brings error. Keversed.

L. D. McGregor, of Warrenton, for plaintiff in error.

M. L. Felts, of Warrenton, for defendant

JENKINS, P. J. [1, 2] The petition for damages is not based upon any willful or wanton conduct of the defendant toward the deceased as a trespasser, or as a mere licensee upon the defendant's premises, but is based upon its failure to exercise ordinary care and diligence in keeping the premises safe for the deceased, who at the time of the injury was waiting as a customer for his cotton to be ginned by the defendant ginnery, and while warming in the boiler room on a cold and chilly morning was fatally scalded by an explosion of the boiler throughalleged negligence of the defendant. The court sustained a general demurrer to the petition. The only ground argued is that a cause of action was not stated, because the deceased is alleged to have been on a part of the premises not necessary in the transaction of his business with the defendant, and therefore was merely a licensee, as to whom the defendant would not be liable save for willfulness or wantonness. The petition, besides alleging that the deceased was upon the premises for the transaction of regular business with the defendant, awaiting his turn for his cotton to be ginned, alleges also that on account of the weather he "went into the boiler room of the ginnery of said defendant for the purpose of keeping warm and comfortable, that It was a custom at said ginnery for customers who had carried their cotton to said ginnery of said defendant to go into said boiler room in order to keep warm and comfortable while waiting until their cotton carried there for ginning and baling could be ginned and baled by said defendant"; and that five or six other such persons were thus there at the time of the explosion. By an amendment it is further stated:

"That the custom and usage alleged above * * * was known to the defendant, or had existed so long that such custom and usage should have been known to the defendant or its agent in charge of said ginnery."

It is contended that, even with this amendment, the deceased occupied no other status than that of a mere licensee.

It...