Opinion
16068.
APRIL 17, 1948.
Damages. Before Judge Almand. Fulton Superior Court. May 29, 1947.
J. Ralph McClelland Jr. and George John L. Westmoreland, for plaintiff in error.
J. C. Bowden and A. G. Smith, contra.
1. "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." Code, § 105-401.
( a) In the instant suit by a mother to recover damages for the death of her minor child, alleged to have been caused by the negligence of the defendant, the allegations of the petition were sufficient to show that the child was an invitee within the meaning of the foregoing law, and to state a cause of action based upon such alleged negligence.
2. The court did not err in overruling all grounds of general and special demurrer to the petition as amended.
No. 16068. APRIL 17, 1948.
Mrs. M. R. Black brought an action for damages for the death of her nine-year-old child against Mrs. Willie Mae Kelley. General and special demurrers to the petition as amended were overruled, and Mrs. Kelley excepted. The case originally went to the Court of Appeals, but was transferred to this court, since the members of that court were equally divided in opinion as to the judgment that should be rendered; SUTTON, C. J., MACINTYRE, P. J., and PARKER, J., being for affirmance, and FELTON, GARDNER, and TOWNSEND, JJ., being for reversal. See Code (Ann. Supp.), § 2-3708.
The petition as amended contained substantially the following allegations: On November 17, 1944, the plaintiff's husband purchased the home of the defendant in the City of Atlanta, and at the time of the purchase the back yard of the home was covered with dead grass, weeds, and other growth. At the time of purchase the plaintiff's family was living in a rented house next door to and joining the house purchased from the defendant, the back yards of the two houses having no fence between them. When the defendant's house was purchased by the plaintiff's husband, it was understood and consented to by the defendant that she would surrender possession on or about December 1, 1944, and it was agreed that the plaintiff's husband would and could go on the property as purchased from the defendant to clean off the rubbish, weeds, grass, and such waste matter as might be in the back yard. When the sale was completed the defendant prepared to vacate and in moving took with her such of her household goods and wares as she wanted and left those which she wished to discard, in and about the place. A part of the refuse left was a gallon can containing anti-freeze, which was a fluid in the nature of gasoline. On or about November 24, 1944, the defendant threw the can containing the anti-freeze into the back yard of her home at a place which had formerly been used as a garden and which at that time had a heavy coating of dead growth. Just what amount of anti-freeze was in the can the plaintiff can not say, but the same was highly combustible and extremely dangerous when near a fire, all of which was known or should have been known to the defendant when she placed the same in the back yard. On or about November 25, 1944, the plaintiff's husband, with the help of their children, was cleaning the dead growth from the said back yard and burning it as it was gathered. While the growth was burning, the can of anti-freeze, which was near, on, or under the fire, ignited and the can exploded with flames of fire spreading in all directions, and this ignited the clothing of the plaintiff's son, James T. Black, whose entire body was so severely burned that he died nine weeks later. At the time the can exploded the plaintiff's husband had just left the children for a necessary call on a short trip away, to be gone only a few minutes, and the plaintiff was working in her home a short distance from the children; neither the plaintiff, her husband, nor her children knew of the presence of the can of anti-freeze, and the defendant gave them no warning or notice that she had placed it there. The defendant placed the can of anti-freeze in her back yard after she knew that the plaintiff's husband and children had begun to gather and burn the dead growth, when she knew or should have known that it was highly inflammable, and knew that the children did not know it was dangerous near fire. The defendant knew or should have known that when said can was in or about fire it would explode if and when coming in contact with fire, and knowing too that the said dead growth was being burned as aforesaid, and the defendant knew that said children were or had been helping their father to gather and burn said dead growth.
The defendant was negligent in placing the can in the growth in the back yard, and in not leaving the can in the house where it would have been harmless to the lives of others; in placing the can in the growth at a time when the plaintiff's husband and children were gathering and burning the growth; and these acts of negligence amount to wilful and wanton misconduct because committed with gross disregard for the safety of others.
The petition further alleged that the plaintiff's said son contributed to her support, in that he did certain work about the home, was normal physically and mentally and was at all times able to aid the plaintiff in her housework; also that it was necessary for said son to work and help the plaintiff in and about the home, because she was not financially able to employ servants to do such work, and said husband was of limited means, and could not employ such servants.
In paragraph 10 of the petition, which remained without change after the amendment, it was alleged: "By way of showing the extent, effect, affect [sic], and severity of said explosion, and flames, the contents in said can, it is alleged that plaintiff's son, Robert Charles, age 4 years, was burned and died in eight hours thereafter, and her daughter, Joe Ann, now 7 years of age, was burned, and plaintiff burned her hands trying to extinguish the flames, said burns to her hands were superficial or third-degree burns, destroyed all layers of skin on her hands, and [the] doctor almost skinned plaintiff's husband for skin to patch plaintiff's hands and said children."
The defendant demurred specially to this paragraph on the following grounds: that it does not contain any allegations germane to the remainder of the petition; that the allegations are prejudicial and harmful to the defendant and should be expunged and not allowed to remain in the petition "to go out with the jury in considering the case."
The judge passed two orders. In the first, he overruled the demurrer to paragraph 10, but sustained all other grounds of special demurrer. He did not at that time pass upon the grounds of general demurrer. After the petition was amended, the defendant renewed all grounds of her demurrer, both general and special. The court then passed an order overruling the demurrer on all grounds, and to this judgment the defendant excepted.
1. In determining whether the petition was good against general demurrer, we will consider first what duty, if any, was owed by the defendant to the plaintiff's child, and this will in turn involve a consideration of the relationship that existed between them at the time the child was injured.
The case has been argued mainly upon the theory that the child was a licensee. We are of the opinion, however, that the allegations were sufficient to show that he was upon the premises as a matter of right, and therefore that the defendant owed him the duty of ordinary care. If the judgment overruling the general demurrer was right for any reason, it should be affirmed. Coker v. Atlanta, 186 Ga. 473 (1) ( 198 S.E. 74).
It appears from the allegations that, at the time the plaintiff's husband purchased the property from the defendant on November 17, 1944, it was understood and consented to by the defendant that she would surrender possession on or about December 1, 1944, and it was further agreed that he, the purchaser, could and would go on the property so purchased for the purpose of cleaning off rubbish, weeds, grass, and such waste matter as might be in the back yard. Whether after such alleged purchase and sale the defendant retained possession of the premises as owner, or as a tenant of the purchaser, it thus appears that the latter acquired such right to go upon the property, as a matter of contract, and hence for a valuable consideration. See, in this connection, Keith v. Catchings, 64 Ga. 773 (3); Prichard v. Tabor, 104 Ga. 64 (2) ( 30 S.E. 415); Anderson v. Hilton Dodge Lumber Co., 121 Ga. 688 (1) ( 49 S.E. 725). The purchaser was, therefore, not himself a mere gratuitous invitee; nor did the right which he acquired involve such a personal or confidential relation that only he in person could exercise it. Accordingly, in exercising such contractual right to go upon the premises for the purpose of cleaning off the yard or garden as stated, he had the incidental right to take this child (now deceased) along to help him, just as he could have taken an employee. It follows that the child, like his father, was lawfully on the premises, and was neither a gratuitous invitee, nor a mere licensee. Code, § 85-1803; Crook v. Foster, 142 Ga. 715 (2) ( 83 S.E. 670). See also, in this connection, 32 Am. Jur. 185, 187, §§ 195, 199; 10 A.L.R. 715, 716.
"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." Code, § 105-401.
From what has been said, the allegations of the petition were sufficient to show that the defendant owed to the plaintiff's child the duty of ordinary care to keep the premises safe.
The petition further alleged in effect that, notwithstanding the defendant knew that the father had elected to exercise the right which she had granted to him, and that he and the children had begun to gather and burn the dead growth, she threw the can of anti-freeze into the back yard of her home, at a place which had formerly been used as a garden, and which at that time had a heavy coating of dead growth, and that while the growth was burning, the can of anti-freeze became ignited and exploded, with the result that the child was so severely burned that he died nine weeks later.
Although the petition did not allege that the defendant actually knew that the anti-freeze was dangerous, it did allege that she knew or should have known that it was highly inflammable, and would explode if and when coming in contact with fire. This was a sufficient allegation as to knowledge, in view of other allegations showing that the defendant owed to the child the duty of ordinary care to keep the premises safe. Cedartown Cotton c. Co. v. Miles, 2 Ga. App. 79 (1), 82 ( 58 S.E. 289); Pacetti v. Central of Georgia Railway Co., 6 Ga. App. 97 (1) ( 64 S.E. 302); Fulton Ice Coal Co. v. Pece, 29 Ga. App. 507 (2a) ( 116 S.E. 57). The rule is different where such duty of ordinary care does not arise merely from the legal relation. Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030 (6) ( 48 S.E. 438); Central of Georgia Railway Co. v. Tapley, 145 Ga. 792 (2) ( 89 S.E. 841).
The allegations were sufficient to state a cause of action, and the court did not err in overruling the general grounds of demurrer.
Since we have construed the petition as showing that the child was an invitee, no ruling is necessary and none is made as to whether it would have stated a cause of action if it had shown that the child was only a licensee.
2. The allegations in paragraph 10 of the petition related almost entirely to res gestae, and were expressly made for the purpose of "showing the extent, effect, . . and severity of said explosion, . . the contents in said can." The court did not err in overruling the special demurrer assailing this paragraph as a whole, on the ground that the allegations were not germane and were prejudicial. Steed v. Harris, 52 Ga. App. 581 (2), 582 ( 183 S.E. 847); Miller v. Southern Railway Co., 21 Ga. App. 367 (4) ( 94 S.E. 619); Southern Railway Co. v. Phillips, 136 Ga. 282 (1) ( 71 S.E. 414). In so far as other grounds of special demurrer were meritorious, they were met by the plaintiff's amendment.
Judgment affirmed. All the Justices concur, except Duckworth, P. J., who dissents.