Wittke v. Horne's Enterprises, Inc.

• Decision Date: 10 July 1968
• Docket Number: 2,No. 43308,3,Nos. 1,43308,s. 1
• Citation: 162 S.E.2d 898,118 Ga.App. 211
• Parties: Robert E. WITTKE v. HORNE'S ENTERPRISES, INC., et al
• Court: Georgia Court of Appeals

Page 898

162 S.E.2d 898

118 Ga.App. 211

Robert E. WITTKE v. HORNE'S ENTERPRISES, INC., et al.

No. 43308.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 10, 1968.

Rehearing Denied July 25, 1968.

Certiorari Denied Sept. 25, 1968.

Syllabus by the Court.

The grant of a summary judgment was proper in a suit brought against a host for injuries received by his social guest who held a test tube filled with powder removed from fireworks and allowed the host's minor son to drop a lighted cigarette into the tube, causing it to explode, it appearing that the defendant was without any knowledge of the affair until after it occurred.

J. R. Crank, a retired officer in the military forces, was general manager of a motel at Augusta known as Horne's Motor Lodge. He had a son, David Crank, sixteen years of age, who was a close friend and associate of Jerry Boyd, seventeen, and Lynn Wittke, nineteen years of age, sons of other military personnel stationed at Augusta.

On the afternoon of December 31, 1964, the three boys were together at Jerry Boyd's home. They had about 20 firecrackers which they had purchased a week previously over in South Carolina and some 'pop bottle skyrockets,' sometimes referred to as 'cherry bombs,' which Lynn had obtained on a trip to Illinois about a year previously. While at Jerry's home the boys had taken the powder from about four of the skyrockets or bombs and put it in a test tube for use as a fuse in exploding firecrackers that night. The test tube was placed in Jerry's coat pocket.

It was New Year's Eve and the boys wanted to spend the evening together. David suggested that since his father was the manager of the motel he could arrange to have them spend the night with him in a room there, and invited the boys to be his guests. It was agreeable to David's father, who felt that if they spent the night together at the motel it would keep them off the streets and out of trouble. Lynn called Mrs. Wittke and asked permission to stay with David and Jerry. She raised some question about it, and Colonel Crank was put on the telephone to extend the invitation, which he did, telling Mrs. Wittke that he was to be on duty that night and he would arrange for them to have a room. She testified that he 'gave me the impression that he was going to be there to supervise the boys.'

Thereafter the boys went out with Daniel Harris (who was in no way connected with Colonel Crank or the motel) to a liquor store, where he purchased for them a half-pint of vodka, a half-pint of rum and two large bottles of beer. They also purchased some Coca-Colas for use as chasers. Upon returning to the motel one of the boys got some ice from the self-service facility of the motel, took it to the room, and all of them had a drink of vodka or of rum mixed with Coca-Cola. They then went out to a restaurant, ate supper, returned to their room, undressed, went to bed and watched T-V. While they were thus watching the T-V David's father went to the room and checked, finding them in bed. He made no further checks.

The boys testified that although they had drunk some of the vodka and rum, but had not touched the beer, the bottles were put away and were not out where Colonel Crank could see them, that they had not had enough to make it noticeable that they were drinking, and that he would have had no reason to suspect that they were drinking unless he had gotten close enough to them to smell it. He did not know that they had any intoxicants in the room. Likewise, they testified that the fire-crackers and cherry bombs were not out where they could be seen and that Colonel Crank did not know that they had any of them. There was no room service throughout the evening, save one occasion when one of the boys ordered a package of cigarettes, which a bell-boy delivered.

The room to which they were assigned was the conference room of the motel some 50 yards from the office where Colonel Crank stayed in the performance of his duties as manager of the motel. At about 10 or 15 minutes of 12 o'clock they began shooting off the firecrackers and bombs, but in doing so, they went out the back door of their room to the back of the motel premises. Their activity could not be seen from the motel office, and there were houses just across the street at the back of the motel. Lynn (plaintiff's son) testified that it was logical that one in the office would think that the shooting of the fireworks was from those houses rather than from the motel. The only thing which might have drawn Colonel Crank's attention to the matter was the noise.

After all the firecrackers and bombs had been shot off, David Crank took the test tube from Jerry's pocket, handed it to Lynn Wittke and told him to hold it. Lynn took it and they went outside the room. He held the test tube while David dropped a lighted cigarette into it, but did nothing to avoid his doing so. He testified that the putting of the cigarette into the test tube was a 'joint undertaking' on their part and that it was done because they mistakenly believed, from their knowledge of chemistry, that it would cause the powder to 'fuse' rather than to explode and that they were both greatly surprised when it exploded-injuring both Lynn and David.

All three of the boys testified that they knew it to be against the Georgia law to explode firecrackers or cherry bombs. See Code Ann. § 92-A-801 et seq.

Robert Wittke, father of Lynn, brought suit against Colonel J. R. Crank and Horne's Motor Lodge of Augusta, Inc., owner of the motel, seeking damages for his son's injuries. Defendant Crank moved for a summary judgment, attaching the depositions of the plaintiff, the plaintiff's wife, and the three boys. Plaintiff offered in opposition affidavits of plaintiff and his wife.

From the grant of the summary judgment plaintiff appeals.

Lanier, Powell, Cooper & Cooper, Wilmer D. Lanier, Harris, Chance & McCracken, Henry T. Chance, Augusta, for appellant.

Hull, Towill & Norman, Lawton Jordan, Jr., James M. Hull, Fulcher, Fulcher, Hagler Harper & Reed, E. D. Fulcher, Augusta, for appellee.

WHITMAN, Judge.

For several reasons, any one of which should suffice, we affirm the grant of the summary judgment.

Contract or tort?

In his suit, as amended, plaintiff alleges that his son called his mother (plaintiff's wife) on the telephone, asking permission to spend the night with David and Jerry at the motel, and that the defendant Crank got on the telephone and asked Mrs. Wittke to allow Lynn to spend the night with the other boys at the motel, stating that he would be there and that he would 'take care of them.' In response, Mrs. Wittke extended the permission and the boys were assigned a room in the motel by defendant Crank. In his affidavit plaintiff asserted that Mrs. Wittke had authority, in his behalf, to extend the permission. In his affidavit Lynn Wittke asserted that defendant Crank promised his mother that he would look after him and Colonel Crank's son, David Crank, if she would allow him to spend the night at Horne's Motor Lodge. In her affidavit Mrs. Wittke asserted that had 'the defendant Crank not assured (her) that he would look after and supervise the conduct and activities of her son and the son of the said J. R. Crank, she would (not have) consented to her son spending the night at the motor lodge.'

In his second amendment to the petition plaintiff alleged that if Crank had inspected the room where the boys were located in the motel between the hours of 9 and 11:30 p.m. he would have discovered that they were in possession of intoxicants and explosives and that upon such discovery, 'in fulfillment (and) in accordance with his promise to petitioner's wife to supervise the behavior of these minor boys' he could and should have required them to surrender the intoxicants and explosives to him, and further amended by charging that defendant had allowed the boys to explode the fireworks on the premises of the motor lodge for a period of over an hour without violation any steps to prevent it, 'in direct violation of defendant Crank's covenant and agreement made to petitioner's wife.' The defendant was charged (in the amendment) with an utter indifference for the welfare and safety of the boys and a total lack of supervision of their behavior. ¹

If this be a suit for violation of the 'covenant and agreement' alleged to have been made by defendant Crank with Mrs. Wittke and assuming it to have been made with her on plaintiff's behalf, it must fail for want of sufficient specificity to make it capable of enforcement. The only agreement charged or alleged is that the defendant would 'take care of' the boys at the motel. Mrs. Wittke testified that the telephone conversation 'gave me the impression that he was going to be there to supervise the boys,' but she also testified that 'he was going to be there, that he was going to be on duty that night-the boys could-he would give them a room, and he would be there.'

'A covenant that does not define what is to be done or furnished by the covenantor in discharging the duties incumbent upon him under its terms, except to give the covenantee an unlimited option as to what will be required, is too indefinite to be enforceable.' Atlantic Coast Line R. Co. v. Georgia, Ashburn, Sylvester & Camilla R. Co., 91 Ga.App. 698(2), 87 S.E.2d 92. And see Oliver Construction Co. v. Reeder, 7 Ga.App. 276, 66 S.E. 955.

What meaning is to be ascribed to the promise of Colonel Crank to 'take care of' young Wittke, a nineteen-year-old? Was it to 'baby-sit' with him? Or was it the meaning ordinarily ascribed to this phrase when used by the manager of a hotel or motel when he is asked for a reservation-to provide a place for him for the night?

If it be regarded as a suit in tort ² it must fail. 'A tort is the unlawful violation of a private legal right, other than a mere breach of contract, express or implied; or, it may be the violation of a public duty, by reason of...