Stuckey's Carriage Inn v. Phillips, 45601

• Citation: 122 Ga.App. 681,178 S.E.2d 543
• Decision Date: 05 October 1970
• Docket Number: No. 2,No. 45601,45601,2
• Parties: STUCKEY'S CARRIAGE INN et al. v. Mrs. George PHILLIPS
• Court: United States Court of Appeals (Georgia)

Page 543

178 S.E.2d 543

122 Ga.App. 681

STUCKEY'S CARRIAGE INN et al. v. Mrs. George PHILLIPS.

No. 45601.

Court of Appeals of Georgia, Division No. 2.

Oct. 5, 1970.

Rehearing Denied Oct. 26, 1970.

Certiorari Denied Jan. 11, 1971.

Syllabus by the Court

1. Evidence of conduct of the defendant occurring after the occasion of plaintiff's injury, tending to show that defendant had taken measures to improve or repair the condition which may have caused the injury, and thus suggest an admission of negligence, is inadmissible, whether elicited on direct or cross examination of witnesses or parties, and should be excluded.

2. While it is a general rule that one who has knowledge of a defective condition in the premises which is equal to that of the owner or operator cannot rely for recovery upon a failure of the owner or operator to correct the condition, there is an exception to this rule which holds that when one is in a moment of stress or excitement and his attention is diverted from the defect, he is not to be held to the same degree of care in discovering and apprehending the danger as in ordinary situations.

3. (a) A custom to take or not to take precaution in a given situation is generally admissible as bearing upon what is proper conduct under the circumstances, but it is not conclusive. One should not be allowed to show conformity merely with his own habits for proving the exercise of due care.

(b) What is reasonably to be foreseen as being injurious to others who may come within the range of the action or conduct of the actor is usually a jury question.

4. Defensive pleading that one can neither admit nor deny allegations found in the complaint discussed; effect when the particular matter is obviously one peculiarly within the knowledge of the defendant. Honesty in pleading is required.

Falligant, Doremus & Karsman, Stanley Karsman, Savannah, for appellants.

Cowart, Sapp & Gale, G. B. Cowart, Brunswick, for appellee.

EBERHARDT, Judge.

While, according to proverb, the cockroach may never be so silly as to approach the door of the henhouse, ¹ the cockroach involved in the case at bar evidently had no apprehension about invading Room 219 of Stuckey's Carriage Inn on Jekyll Island, where Mrs. George Phillips was dressing prior to attending a banquet. Perhaps, as repeatedly warned against by Archy, the cockroach-poet who first made his appearance in 1916 in the columns of the New York Sun by the device of leaving messages in his newspaperman-boss's typewriter, this cockroach had determined to revolt and overthrow the human race because of man's inability to manage himself or his environment. ² It may be that this was because the cockroach as a species had lived on the earth several billions of years before man came along. But whether this particular cockroach actually intended Mrs. Phillips any harm will never be known, as he vanished before his origin and identity were established. In any event he left chaos in his wake, in the midst of which Mrs. Phillips lay sprawled with serious personal injuries.

Plaintiff and all defendants disowned the cockroach. It was contended by defendants that it most probably came into the room in plaintiff's luggage, which she had kept stored in the attic at home, while plaintiff contended that it came in through the door or windows from the leaves, grass, etc., just outside the motel, which furnish a natural habitat for cockroach breeding.

Being unable to perfect service upon an unidentified cockroach, Mrs. Phillips sued Stuckey's Carriage Inn, Wanderer Motel, Inc., and Jekyll Motels, Inc., alleging that the Inn was leased to Wanderer and that Jekyll Motels was the managing agent and operated the Inn. She charged that while she was dressing for going to a banquet and as she was putting on her makeup in Room 219, which she occupied as a paying guest, she felt something crawling on her neck or shoulder. Seeing in the mirror that it was a large cockroach, she snatched off the jacket to her evening ensemble and slung it in effort to dislodge the roach, which disappeared from her view and she was then unable to locate it. She determined to leave the room and proceed to the banquet and, just as she was about to pick up her gloves from the foot of the bed, she felt something crawling on her thigh above the top of her stockings and concluded that it was the cockroach, which, in its alternations of flying and perching, had invaded her privacy. (This untoward event occurred before the advent of the mini). She became frantic and began thrashing about in an effort to raise her dress and dislodge it and in doing so caught her foot in the bedspread which extended onto the floor and was in some manner entangled with the bedpost, which caused her to stumble and fall over a chair. The cockroach was gone, never to leap, peep or creek again-but alas, her leg was broken! It was alleged in the complaint that defendants were negligent, inter alia, in permitting cockroaches to be present in her room, and in making up the bed in such a manner that the bedspread spilled over onto the floor, creating a hazardous situation.

Defendants moved for summary judgment, which was overruled; and, upon appeal to this court, we affirmed, holding that 'Issues as to the negligence of defendant where insect pests are present in a motel room and as to the alleged improper making up of a bed remain unresolved.' Stuckey's Carriage Inn v. Phillips, 120 Ga.App. 792, 172 S.E.2d 208. The case proceeded to trial and, after concluding arguments of counsel, a juror became ill. The parties could not agree to proceed to verdict with eleven jurors, and a mistrial was declared. Defendants appeal from the overruling of their motion for judgment notwithstanding the mistrial, which followed the overruling of their motions for directed verdict. The trial court certified the ruling for immediate review, and the case is before us once again.

1. Defendants first urge that there was no evidence from which the jury could find that defendants had not exercised ordinary care to keep the premises free and safe from insects, pests and rodents. We note that when the case was before us on summary judgment a question of fact was present as to this issue. Defendants had submitted the affidavit of Fred Zapico, who swore that he was the managing director of Stuckey's Carriage Inn, Wanderer Motel, Inc., and Jekyll Motels, Inc., and that defendants had a service contract with Orkin Exterminators, Inc., which frequently inspected and treated the premises for insects and rodents, including roaches. The affidavit and deposition of Ernest James, Orkin's serviceman, established that he serviced the premises a minimum of once per month, and that the charge for the service to defendants was $40, per month. However, in opposition to the motion plaintiff submitted the affidavit of J. E. Johnson, who swore that he was in the pest control business and had many years of experience in the control of roaches and other pests. He set out in detail the economics of the pest control service, and stated that 'you could not possibly properly treat a building the size of the Stuckey's Carriage Inn for $40 a month.' He further stated that if any building is properly treated roaches could be controlled. Thus, the fact issue was raised in the summary judgment proceeding.

At the trial there was considerable testimony introduced as to the nature of the services performed by Orkin to control roaches, a particular problem in that area, and as to the cleaning procedures performed by the motel staff. However, contrary to the situation as it existed on motion for summary judgment, plaintiff did not introduce any evidence such as that contained in the affidavit of J. E. Johnson, which was previously before us. Defendants thus insist that they have established that they exercised reasonable care in keeping the premises free from roaches. Plaintiff, on the other hand, points to certain testimony of Ernest James, Orkin's serviceman, and Fred Zapico, the manager of the Inn, elicited on cross examination, contending that this testimony showed that the pest control contract with Orkin was canceled some year and a half to two years after the injury and awarded to another company because of dissatisfaction with Orkin's service. It is argued that the jury could infer from this testimony that defendants were not providing for an adequate pest control program at the time of the injury, and that a jury question was thus presented as to this issue of negligence. We do not agree with this contention.

The testimony referred to was admitted over defendants' objections, and motions to strike it were overruled. The testimony was inadmissible and without probative value as to this issue of negligence, for it is the rule in this jurisdiction, and a virtual universal rule, that evidence of repairs, change of conditions, or precautions taken after an injury is never admissible as proof of negligence of the defendant in not having made the repairs, changed the conditions, or taken the precautions prior to the injury. Georgia Southern & Fla. R. Co. v. Cartledge, 116 Ga. 164(1), 42 S.E. 405 (overruling prior decisions to the contrary and adopting the weight-of-authority rule); Louisville & N.R. Co. v. Barnwell, 131 Ga. 791(3), 63 S.E. 501; Harrell v. Forsyth County, 137 Ga. 550(2), 73 S.E. 735; Mitchell v. Schofield's Sons Co., 19 Ga.App. 201, 202, 91 S.E. 275; Usry v. Augusta Southern R. Co., 24 Ga.App. 722, 724, 102 S.E. 184; Hines v. Duncan & Nelms, 25 Ga.App. 712(3), 104 S.E. 519; Evans v. Central of Georgia R. Co., 38 Ga.App. 146, 149, 142 S.E. 909; Flint River Cotton Mills v. Colley, 71 Ga.App. 288, 290, 30 S.E.2d 426; Atlantic Coast Line R. Co. v. Sellars, 89 Ga.App. 293, 296, 79 S.E.2d 35; Lacy v. City of Atlanta, 110 Ga.App. 814(4), 140 S.E.2d 144; Annot., 170 A.L.R. 7, supplemented 64 A.L.R.2d 1296; 2 Wigmore, Evidence 151, § 283 (3d Ed.1940); McCormick, Evidence 543, §...