Opinion
36936.
DECIDED JANUARY 16, 1958. REHEARING DENIED JANUARY 30, 1958.
Action for damages. Muscogee Superior Court. Before Judge Thompson. September 30, 1957.
Vincent P. McCauley, for plaintiff in error.
Young Hollis, contra.
The pleadings in the instant case do not show that the plaintiff was entitled to recover while in the process of taking pictures for someone other than the defendant.
DECIDED JANUARY 16, 1958 — REHEARING DENIED JANUARY 30, 1958.
Jack Nechtman brought suit against Wellington Plaza, Inc. The petition reads as follows: "1. That the defendant in this action is Wellington Plaza, Incorporated, a corporation, organized and existing under the laws of the State of Georgia, with an office, agent, and place of business at the Cross Country Plaza Shopping Center in Muscogee County, Georgia, where service may be perfected. 2. That defendant has injured and damaged your petitioner in the sum of $25,000, by reason of the facts hereinafter set out. 3. That subsequent to July 25, 1955, the defendant corporation exclusively owned, operated, maintained and controlled the premises upon which the aforesaid shopping center was located. 4. That on or about January 26, 1956, the petitioner, a photographer, was requested by Joseph Liebling, an employee of B. Thorpe Company, Inc., rental agents for the defendant, to take pictures of an alleged defective roadway at said shopping center. 5. That at the approximate hour of 2:15 o'clock p. m. on said date, petitioner was engaged in taking photographs of said shopping center, pursuant to his said employment, when he was suddenly injured, and his camera was damaged, as hereinafter set out. 6. That at said time and place there was a ditch immediately adjacent to a foundation wall, about one foot of which wall was located above the surface of the earth. The said ditch, which was approximately eighteen feet deep, extended out only about eighteen inches from the said wall, and the ground in front of said wall and said ditch rose in a slight grade going toward said wall and because of the proximity of said ditch to said wall and because of said rise of earth as it approached the said wall, said ditch was concealed from the view of one approaching said wall until such individual arrived at a point immediately adjacent to the ditch where the ground abruptly dropped into said ditch; that said ditch had been on said premises in such condition since approximately September, 1955, several months prior to the occurrence herein complained of. 7. That on said date petitioner entered defendant's premises by a roadway which led to the temporary offices of said defendant; that petitioner had been instructed to take pictures of the surface of the roadway to illustrate alleged defective paving in the roadway; that at the point where the pictures were to be taken, the defendant's temporary offices were located within five or ten feet of the roadway on the west side thereof, in such a position that the proper camera angle could not be procured from the west side of said roadway; that because of this petitioner had to secure pictures of the roadway from the east side thereof, which was the side where the aforesaid foundation wall and ditch were located. 8. That in taking the pictures it was necessary for petitioner to face the roadway from the east side in order to get a proper camera angle for the pictures which plaintiff was taking. 9. That while petitioner's attention was directed towards the highway and away from the foundation wall aforesaid, the earth adjacent to said ditch gave way and petitioner was hurled into said ditch, which was eighteen feet deep, as heretofore stated; that the ends of iron reinforcement rods projected from the said wall and petitioner in his descent into the ditch was snagged, cut, and seriously injured by said projecting pieces of iron, as will be hereinafter set out. 10. That prior to going on to the east side of said roadway for the purpose of taking said pictures petitioner made a visual examination of the ground east of the roadway but for the reasons hereinbefore stated, was unable to see the ditch mentioned aforesaid. 11. That as petitioner drove into the roadway aforesaid, the contour of the earth, as it approached the foundation wall, completely obscured from petitioner's vision the view of said ditch. 12. That petitioner had not previously been in this particular area on the premises and knew nothing about the existence of said ditch until he fell into the same, as hereinbefore alleged. 13. That said ditch should have been filled in by defendant, in the exercise of reasonable care. 14. That defendant had not placed guardrails along said ditch nor had it warned petitioner of the presence of the same by sign or otherwise, which in the exercise of ordinary care it should have done. 15. That said ditch, existing as it did, adjacent to the wall of the building, and hidden and obscured from view, as hereinbefore set out, was in the nature of a mantrap, and defendant, in the exercise of ordinary care, should have warned petitioner, an invitee on said premises, of the existence of said ditch. 16. That as a result of said fall petitioner was injured in the following particulars, to wit: He received a fibromyositis of the left spinal erector muscles with spasm resulting in hypertrophic arthritis in the second, third, fourth, and fifth lumbar vertebrae, and all of the nerves, skin, ligaments, and tissues in and about the same were jarred, contused, torn, sprained and injured; he received severe shock to his entire nervous system, has suffered and will continue to suffer the greatest mental and physical pain and agony and all of his injuries are permanent in character. 17. That as a result of said occurrence petitioner has been compelled to expend to date the following sums for the treatment of his said injuries, all of which were reasonable and necessary in the premises, to wit: Dr. Bruce C. Newsom, Columbus, $40; Dr. James A. Elkins, Columbus, $45; Dr. George Epps, Columbus, $30.50; drugs $6; heating pad, $8.95. Plaintiff is still receiving medical care. 18. That as a result of said injuries petitioner was compelled to employ additional help for a period of approximately four weeks immediately after said occurrence in order to keep previously made photographic appointments and in such connection was put to an expense of $150. 19. That as a result of said occurrence petitioner damaged his speed graphic camera and was required to extend the sum of $25 for its repair. 20. That prior to said occurrence, petitioner was a strong and able bodied man of the age of 42 years, earning and capable of earning the sum of $250 per week as a photographer, but as a result of said injuries petitioner has been required to stay off from work from time to time with a consequent loss of approximately $300 in income. 21. That defendant was negligent in the following particulars, to wit: (a) In failing to warn petitioner of the existence of said ditch, or mantrap, as hereinbefore described; (b) In failing to place guardrails along said ditch, to protect petitioner, an invitee on the premises; (c) In failing to keep the premises in a reasonably safe condition for petitioner, an invitee thereon; (d) In allowing said ditch to remain open and unprotected for a period of months as hereinbefore set out. 22. That the negligence of the defendant herein complained of, concurred and jointly cooperated to cause, and did cause directly and proximately the injuries and damage to petitioner, herein complained of. 23. That this suit is brought to recover for pain and suffering, past, present and future, lost wages, reasonable and necessary medical expenses and damage to petitioner's camera."
The answer reads as follows: "Now comes the defendant in the above cause, and subject to its demurrers heretofore filed and without waiving said demurrers but specifically relying and insisting upon the same, files this its answer to plaintiff's petition and shows: 1. This defendant admits the allegations of paragraph 1 of plaintiff's petition. 2. This defendant denies paragraphs 2, 6, 7, 8, 9, 10, 11, 13, 14, 15, 21 and each and every subparagraph thereof, 22 and 23 of plaintiff's petition. 3. This defendant denies, as plead, paragraphs 3, 4 and 5 of the plaintiff's petition. 4. For want of sufficient information, this defendant can neither admit nor deny the allegations of paragraphs 12, 16, 17, 18, 19 and 20 of plaintiff's petition. 5. Further answering, the defendant shows that all of the alleged injuries and damages complained of in the plaintiff's petition were solely, directly and proximately caused by the plaintiff and by the negligent acts of the plaintiff, and further, that the plaintiff, by the exercise of ordinary care, could have avoided the consequences of the alleged negligence, if any, of the defendant, and further, that the negligence of the plaintiff was equal to or greater than the alleged negligence, if any, of the defendant."
The defendant demurred to the petition both generally and specially, and quite extensively. We will not set forth the demurrers. Suffice it to pay that the court sustained the general demurrers, dismissed the petition, and did not pass on the special demurrers.
The question before this court is to determine the status of the plaintiff while on the premises of the defendant. If the plaintiff was a licensee on the premises, is the existence of a mantrap or pitfall, sufficiently set forth? Code § 105-402 provides: "A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification. The owner of such premises is liable to a licensee only for wilful or wanton injury."
The plaintiff calls our attention to Cedartown Cotton Export Co. v. Miles, 2 Ga. App. 79, 81 ( 58 S.E. 289), Mandeville Mills v. Dale, 2 Ga. App. 607, 609 ( 58 S.E. 1060), Rollestone v. Cassirer, 3 Ga. App. 161, 167 ( 59 S.E. 442), Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490 ( 118 S.E. 697), and Central of Ga. Ry. Co. v. Ledbetter, 46 Ga. App. 500 ( 168 S.E. 81). (It will be noted that this court overruled the Petree case, supra, insofar as that case denominated a child accompanied by a parent as a licensee rather than an invitee. However, the overruling of that case in part does not affect what is said here). See also Ga. Power Co. v. Deese, 78 Ga. App. 704, 707 ( 51 S.E.2d 724). These cases do not sustain the contentions of the plaintiff under the pleadings in this case. We might state that Liebling, an employee of B. Thorpe Company, Inc., rental agency for the defendant, requested that the plaintiff take pictures of the alleged defect in the roadway at the shopping center. It is clear, without any supporting allegations in the petition, that Liebling was not an agent of the defendant but was only an employee of the rental agency. This is not sufficient to clothe Liebling or the rental agency with authority to bind the defendant. In order to establish agency three things are necessary: (1) By pleading the facts from which agency may be established; (2) By pleading that the principal, through its agent, did the act; and (3) By pleading that the act was done by the alleged agent in the prosecution of the principal's business and within the scope of his agency. In the instant case the pleadings reveal clearly that Liebling had no authority to bind the defendant by inviting the plaintiff to photograph the premises. Liebling's authority could be no greater than that of his employer, B. Thorpe Company, Inc., who are described in the petition only as a rental agency of the defendant. See Rothberg v. Manhattan Coil Corp., 84 Ga. App. 528, 535 ( 66 S.E.2d 390). The petition fails to show any request or license to the plaintiff from the defendant to come upon the premises based upon any agency on the part of Liebling.
The contentions of the plaintiff that the ditch was a mantrap are not supported by the allegations of the petition. Our attention is called to many decisions but we see no necessity of going into them in view of the record of this case. It is our view that the plaintiff was not entitled to recover under any theory of the case as pleaded here.
Judgment affirmed. Townsend and Carlisle, JJ., concur.