Sutton v. Sutton, 55031
| Decision Date | 24 February 1978 |
| Docket Number | No. 2,No. 55031,55031,2 |
| Citation | 243 S.E.2d 310,145 Ga.App. 22 |
| Parties | Aubrey SUTTON v. W. W. SUTTON |
| Court | Georgia Court of Appeals |
Young, Young, Ellerbee & Clyatt, F. Thomas Young, Robert M. Clyatt, Valdosta, for appellant.
Yancey & Perkins, Carson Dane Perkins, Nashville, for appellee.
Plaintiff brought an action in tort against his father for injuries incurred in attempting to help his father and younger brother recapture an escaped bull. The defendant appeals from judgment for the plaintiff. Held :
1. The defendant alleges the court erred in entering judgment in favor of the plaintiff and in denying his motion for directed verdict and judgment notwithstanding the verdict or new trial. We do not agree.
Defendant purchased a "stock bull" on April 19, 1975. He and his younger son, Leon, brought the bull home in a trailer. Leon Sutton testified that the bull, a cross between a "Black Angus and a Brahman," charged the side of the trailer "as if he wanted to get at us." When the bull was released he "charged through the fence," across the tobacco field, and over another fence into a neighbor's pasture. This was around 11:00 a. m. When they attempted to return the bull to their pasture he jumped another fence and went into a swamp. The defendant and his son pursued the bull through the swamp for several hours.
Plaintiff, the elder son of the defendant, went to his father's house at approximately 2:00 p. m. and was told by his mother that his father had bought the bull that morning and "he had charged the side of the trailer and had broken out and got away from them." Plaintiff returned home, but at 5:30 or 6:00 p. m. returned to his father's house to see his father and brother returning home. His father asked him to help them and drive them to the place where the bull had last been seen and they would attempt to drive the bull toward home and "assist him in corraling or penning the bull." After he had taken his father and brother to where they requested, he returned to his father's house and his mother told him the bull had come back into their field. He called for his father and brother to join them and the father and his two sons surrounded the bull "in a semi-circle."
The plaintiff testified that the bull saw that they were trying to herd him toward home and "he came directly at me." The bull struck him in the stomach and then ran over him, breaking his leg. He knew "this was a new bull . . . but (he) didn't know he was crazy or wild . . . or even would try to kill you." He had seen the bull for only "2 or 3 minutes" before the bull ran over him. His father did not warn him the "bull was dangerous and might hurt you," nor that "he had charged anybody or run at anybody or what have you."
Leon Sutton, the younger brother, testified that they had pursued the bull for all that day and seen him jump numerous fences and escape through the very dense swamp, and after the plaintiff had taken them to where the bull was last seen, they found the bull. He threw some sticks at the bull and "(h)e took off running right towards (him) . . . (T)here was about a 12 inch pine tree there by (him) and (he) just got behind the pine tree, and (the bull) came running right by (him), within about 10 feet or so." The father was present when this happened but the plaintiff was not. Leon agreed that his father did not warn the plaintiff that "the bull might hurt him." That night, Leon and his father warned their neighbors about the escaped bull. Leon found the bull the next day and shot him with a 30.06 rifle.
Plaintiff contends the defendant was negligent in failing to warn him the new stock bull was in a highly excited and emotional state, was dangerous and "subject to harm anyone or anything that got in his way." Defendant contended that the injury occurred as a result of accident, that plaintiff assumed the risk of injury, and if defendant was negligent plaintiff was equally negligent.
To determine what duty, if any, was owed plaintiff by the defendant, we must determine defendant's status at the time of the injury. Although he visited his parents as a social guest, his father twice requested his help in capturing the escaped bull. Where the primary purpose of a visit is to perform services for the host, the legal status of the visitor is that of an invitee. Chatham v. Larkins, 134 Ga.App. 856, 858, 216 S.E.2d 677. Plaintiff was not performing such incidental services for his host that he would retain his status as social guest, but had started performing a task which was for the sole benefit of the host. Thus he was clearly an invitee. Chatham v. Larkins, 134 Ga.App. 856, at 858, 216 S.E.2d 677, supra; accord: LaBranche v. Johnson, 127 Ga.App. 244(2), 193 S.E.2d 228.
Under Code § 105-401: "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."
Georgia Bowling Ent. v. Robbins, 103 Ga.App. 286, 287-288, 119 S.E.2d 52, 53; see also Norman v. Norman, 103 Ga.App. 626, 632, 120 S.E.2d 42.
Likewise, an owner or occupier of land is liable to invitees for injuries they sustain as a result of his failure to warn them of dangers which he was aware of, or in the exercise of reasonable care should have known. Lenkeit v. Chandler, 97 Ga.App. 769, 770, 104 S.E.2d 476; accord, Goldsmith v. Hazelwood, 93 Ga.App. 466, 468, 92 S.E.2d 48. However, a person is not expected to foresee and warn against dangers which are not reasonably expected, and which would not occur except under exceptional circumstances or from unexpected acts of the person injured. Banks v. Champion, 118 Ga.App. 79(2), 162 S.E.2d 824.
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