Opinion
39030.
DECIDED OCTOBER 4, 1961. REHEARING DENIED NOVEMBER 1, 1961.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Rose Lappas, Ralph H. Hicks, for plaintiff in error.
Hurt, Gaines, Baird, Peek Peabody, J. Corbett Peek, Jr., William W. Horton, contra.
1. Where the facts alleged in a petition show a relationship which gives rise to a duty to know, alternative allegations (that the defendant knew or should have known) are sufficient to withstand an oral motion in the nature of a general demurrer.
2. The remaining questions presented by this record are jury questions. Therefore, it was error to sustain the oral motion to dismiss in the nature of a general demurrer.
DECIDED OCTOBER 4, 1961 — REHEARING DENIED NOVEMBER 1, 1961.
R. E. Hillinghorst brought suit for personal injuries sustained while he was a paying guest in the motel owned and operated by Heart of Atlanta Motel, Inc. Plaintiff's petition, as amended, alleged that "at or about 11 o'clock a. m., plaintiff was bathing in the bathtub" of his room; that to his "left and attached to the wall immediately above the top of the bathtub there was located a soap dish made of a porcelain substance"; that "immediately above said soap dish there was a porcelain handle approximately six inches in width which was for the benefit of a person using the said bathtub in arising therefrom"; that he "placed his left hand around said porcelain handle and began to pull himself out of the bathtub"; that "when he had partially arisen therefrom, supporting himself as aforesaid, the handle crumbled in his hand," causing severe lacerations and that plaintiff suffered certain specified damages. The allegations of negligence were as follows:
"`8-A' That said handle constituted a dangerous condition, which was known or should have been known to defendant in the exercise of ordinary care, which was unknown to plaintiff, and defendant, in permitting guests to use the said bathtub without warning of the defective state, was careless and negligent."
"`16-A' That defendant was negligent in the following particulars, to wit:
"(a) In permitting a dangerous condition to exist on its premises.
"(b) In that defendant failed to warn plaintiff of the danger of the existing condition of the said handle.
"(c) In not exercising ordinary care to keep plaintiff's room in a reasonable condition and to keep said handle in a reasonable safe condition for the purpose for which it was intended.
"(d) In negligently and carelessly maintaining said handle in a weakened condition.
"(e) In having and maintaining in plaintiff's room a handle that would break off when being used for the purpose it was intended.
"(f) In not inspecting the handle to ascertain that it was in proper condition.
"(g) In not repairing or replacing the said handle when it was discovered or should have been discovered by ordinary care and diligence to be defective."
After filing its answer, the defendant made an oral motion to dismiss in the nature of a general demurrer. The motion was sustained by the trial judge, because "The petition as amended does not allege any facts to show how the defendant should have known the handle would break nor that an inspection of the handle would have disclosed any defect," relying on Howerdd v. Whitaker, 87 Ga. App. 850 ( 75 S.E.2d 572). The plaintiff excepted to the ruling sustaining the oral motion to dismiss.
1. This case is here on exception to the trial judge's order sustaining an oral motion to dismiss by the defendant. It thus becomes our duty to measure the petition by the standard laid down by Chief Judge Hill in Moone v. Smith, 6 Ga. App. 649, 650 ( 65 S.E. 712) where it is said, "The essential foundation for all actionable negligence is the existence of a duty which the defendants owed to the plaintiff in connection with the particular subject-matter, and the breach of that duty by the defendants. The duty is defined by the law; the breach of that duty is determined by the particular facts. Where the duty and the breach concur, a legal injury arises, and, if damage results, an action will lie."
Under the allegations of the plaintiff's petition, it is clear that the plaintiff and defendant had entered into a guest-innkeeper relationship. This relationship has the necessary legal concomitant of a duty placed upon the innkeeper. This duty is well-settled in Georgia as "the duty to exercise ordinary care to afford [guests] premises that are reasonably safe for use and occupancy." Hotel Richmond, Inc. v. Wilkinson, 73 Ga. App. 36, 41 ( 35 S.E.2d 536); Holloman v. Henry Grady Hotel Co., 42 Ga. App. 347 ( 156 S.E. 275); Newton v. Candace, Inc., 94 Ga. App. 385 (2) ( 94 S.E.2d 739); S. A. Lynch Corp. v. Greene, 99 Ga. App. 797, 799 ( 109 S.E.2d 615); Hotel Dempsey Co. v. Teel, 128 F.2d 673 (5th Cir.).
Thus, the duty the law places upon the defendant is clear. But what of the breach? The plaintiff's allegations of negligence, as amended, are set out above.
The defendant contends that the alternative allegation that the dangerous condition of the handle "was known or should have been known" to the defendant was only an allegation of constructive knowledge. The trial court also used this theory as one basis for granting the oral motion, citing Howerdd v. Whitaker, 87 Ga. App. 850 ( 75 S.E.2d 572), to the effect that an alternative allegation of knowledge shows no actual knowledge.
This statement is correct when applied to the factual situation in Howerdd. However, the rule is different where "the facts show the relation from which the duty to know arises, [then] a general averment that the defendant knew or ought to have known of the defects from which the injury resulted is sufficient. . ." Fulton Ice Coal Co. v. Pece, 29 Ga. App. 507, 519 ( 116 S.E. 57), aff'd, 157 Ga. 105 ( 120 S.E. 636). This rule has been followed in this and other factual situations. Cedartown Cotton c. Co. v. Miles, 2 Ga. App. 79, 82 ( 58 S.E. 289); Southern States c. Cement Co. v. Helms, 2 Ga. App. 308 (1a) ( 58 S.E. 524); Pacetti v. Central of Ga. Ry. Co., 6 Ga. App. 97 (1) ( 64 S.E. 302); Bennett v. Central of Ga. Ry. Co., 6 Ga. App. 185 (1) ( 64 S.E. 700); Huey v. City of Atlanta, 8 Ga. App. 597 (3) ( 70 S.E. 71); Western A. R. v. Reed, 33 Ga. App. 396, 403 ( 126 S.E. 393); King Hdw. Co. v. Ennis, 39 Ga. App. 355 (3) ( 147 S.E. 119); Atlanta Paper Co. v. Sigmon, 82 Ga. App. 730 (2) ( 62 S.E.2d 363); Frazier v. Davis, 94 Ga. App. 173 (2) ( 94 S.E.2d 51); Harvill v. Swift Co., 102 Ga. App. 543, 547 ( 117 S.E.2d 202); Kelley v. Black, 203 Ga. 589, 593 ( 47 S.E.2d 802). Belch v. Sprayberry, 97 Ga. App. 47, 51 ( 101 S.E.2d 870), cited by the defendant as supporting Howerdd, is also authority for the Fulton Ice Coal Co. rule.
The Fulton Ice Coal Co. case, supra, at pp. 518, 519, discusses the situations where alternative allegations of knowledge are attacked by general demurrer: (1) where the duty to know arises from the relationship, and (2) where the duty does not arise by reason of the relationship but arises only after actual knowledge. The facts of the Howerdd case clearly place it in the second category.
As to cases in the first category, alternative allegations are good as against general demurrers. The prior discussion of the case sub judice shows clearly the pre-existing duty growing out of the innkeeper-guest relationship. Therefore, in the absence of special demurrers, the alternative allegations of knowledge were sufficient.
2. The defendant also contends that there are no facts pled which show that the duty owed the defendant would involve an inspection of the handle, or that if inspection was the measure of "ordinary care," that such would have enabled the defendant to discover the defect, if any. The trial court agreed with this contention in sustaining the oral motion.
However, it is well to recall that we are dealing here with a motion in the nature of a general demurrer. As against such a motion, general allegations of negligence are good. McPhail v. A. C. L. R. Co., 93 Ga. App. 599 (2), 602 ( 92 S.E.2d 558) and cases cited. In such a situation, if the petition can be said to set out a cause of action on any theory, the motion should not be sustained. Childs v. Blaine, 84 Ga. App. 847, 849 ( 67 S.E.2d 787) and cases cited.
The question of a violation of "the duty to exercise ordinary care to afford [guests] premises that are reasonably safe for use and occupancy," which is the duty an innkeeper owes his guests, is a question of negligence and this court is bound by the rule that such matters are for the jury except in plain, palpable and indisputable cases. Code § 81-304, catchword "Negligence." Further, the innkeeper has a duty to inspect and is liable for such injuries caused by defects as would be disclosed by a reasonable inspection. Johnson v. John Deere Plow Co., 214 Ga. 645, 647 ( 106 S.E.2d 901) and cases cited. Thus, plaintiff's case is for the jury, and it was error to sustain the oral motion to dismiss in the nature of a general demurrer.
However, we do not intend to hold here that if such an inspection had been made, it would have disclosed the defect complained of here. Such is in the province of the jury. It may be that the evidence will show that the defendant could not have discovered the defect if an inspection had been made and that it had no other way of knowing of the defect. See Annot. 18 A.L.R. 2d 977, § 4. On the other hand, the evidence may develop facts sufficient to have put the defendant on notice of the defect, as was the case in Hotel Richmond, Inc. v. Wilkinson, 73 Ga. App. 36 ( 35 S.E.2d 536). And see Annot. 18 A.L.R. 2d 977, supra. Our holding is merely that plaintiff's general allegations were good as against an oral motion to dismiss in the nature of a general demurrer.
Judgment reversed. Carlisle, P. J., and Nichols, J., concur.