Opinion
42669.
ARGUED MARCH 6, 1967.
DECIDED APRIL 5, 1967. REHEARING DENIED APRIL 21, 1967.
Action for damages. Cobb Superior Court. Before Judge Ingram.
Powell, Goldstein, Frazer Murphy, Frank Love, Jr., Jack McLaughlin, for appellant.
Holcomb McDuff, Frank D. Holcomb, Robert E. McDuff, for appellee.
1. The plaintiff was on the premises of the defendant at the latter's request and for the sole benefit of the latter, hence was an invitee to whom the defendant owed the duty of exercising ordinary care to avoid injuring him.
2, 3. The allegations of the petition and the evidence supporting the defendant's motion for a summary judgment raised issues of negligence which must be resolved by a jury; therefore, the court properly overruled the defendant's general demurrer to the petition and his motion for a summary judgment.
ARGUED MARCH 6, 1967 — DECIDED APRIL 5, 1967 — REHEARING DENIED APRIL 21, 1967 — CERT. APPLIED FOR.
Herman O. Blackwood brought an action against F. W. Mulligan for damages for injuries caused by the defendant's alleged negligence. The petition alleges substantially as follows: The defendant, plaintiff's next-door neighbor, came to plaintiff's home and requested him to help him move a sofa from his living room to his basement. Plaintiff and defendant placed the sofa on a trailer and pulled it by automobile to within thirty feet of the basement door, then proceeded to carry the sofa by hand to the doorway, which the plaintiff entered first. The sofa jammed in the doorway and the defendant requested the plaintiff to hold the sofa while the defendant determined what portion of the sofa was jammed. Since the sofa weighed approximately three hundred pounds, the plaintiff rested part of it on his hip to relieve himself of some of the weight. While the plaintiff had the sofa resting on his hip and without any warning to plaintiff, the defendant suddenly and violently twisted the sofa, causing alleged permanent back injuries to the plaintiff. The alleged particulars of the defendant's negligence are as follows: (a) failure to warn plaintiff that he was about to move the sofa; (b) suddenly and violently twisting the sofa without warning to plaintiff; (c) failure to determine prior to entry into the basement doorway that the sofa would not pass freely through it without putting a strain on those moving it; (d) failure to provide sufficient manpower to move the sofa; and (e) suddenly and violently twisting the sofa and injuring the plaintiff as alleged.
The defendant appeals from the judgments of the trial court overruling his general demurrer to the petition and his motion for a summary judgment.
1. "One who is on the premises of another at the latter's request and for the sole benefit of the latter, is an invitee to whom the latter owes the duty of exercising ordinary care to avoid injuring." Shepherd v. Whigham, 111 Ga. App. 274 (1) ( 141 S.E.2d 583); 65 CJS 866, Negligence § 63 (112). The petition affirmatively alleges that the defendant requested the plaintiff to help him. As was the situation in Shepherd v. Whigham, supra, p. 276 (1), the plaintiff was not to be rewarded by pay for his work and was not there for his own pleasure and convenience, but for the sole benefit of his neighbor, the defendant. The evidence that the defendant had first tried to solicit the help of the plaintiff's son, that the plaintiff had told the defendant that his son was not at home, and that the plaintiff had then asked if there was anything he could do, does not make the plaintiff's status a volunteer. His offer was merely in response to the defendant's obvious search for help. Thereafter, the defendant directed a specific request to the plaintiff himself, to the effect that he would like his help if he felt like it, with which request the plaintiff then complied. Accordingly, the plaintiff was an invitee of the defendant.
2. The questions of whether the defendant failed to exercise ordinary care to avoid injuring the plaintiff-invitee, and the plaintiff's contributory negligence, if any, are peculiarly questions for a jury to determine, this not being one of those plain, palpable and indisputable cases where reasonable minds cannot differ as to the conclusion to be reached. See Yeager v. Jacobs, 111 Ga. App. 358 (1) ( 141 S.E.2d 837) and cit. The court did not err in its judgment overruling the general demurrer to the petition.
3. The foregoing rule is likewise applicable in connection with the summary judgment law. Yeager v. Jacobs, 111 Ga. App. 358, 359 (2), supra. Even if the evidence supporting the motion for summary judgment fails to show that the defendant twisted the sofa "suddenly and violently," as the petition alleges, it is nevertheless sufficient to raise issues of fact for the jury, based upon the remaining particulars of the defendant's negligence, such as his failure to warn the plaintiff of his intention to twist the sofa. The court did not err in its judgment overruling the defendant's motion for a summary judgment.
Judgments affirmed. Hall and Eberhardt, JJ., concur.