Summary
In Roach v. Dozier, 97 Ga. App. 568 (103 S.E.2d 691) plaintiff sought to hold a defendant, whose nephew had taken the family business funeral hearse liable under the attractive nuisance doctrine.
Summary of this case from Robinson v. PollardOpinion
37074.
DECIDED APRIL 9, 1958. REHEARING DENIED APRIL 28, 1958.
Tort; funeral hearse and bicycle collision. Floyd Superior Court. Before Judge Hicks. January 9, 1958.
Holcomb Grubbs, J. M. Grubbs, Jr., Parker, Clary Kent, for plaintiff in error.
Maddox Maddox, James Maddox, contra.
Under the facts of this case constructive notice was not sufficient to charge the defendant with negligence; therefore, the court did not err in sustaining the general demurrers to the petition and in dismissing the action.
DECIDED APRIL 9, 1958 — REHEARING DENIED APRIL 28, 1958.
Mary L. Roach sued Weymond Dozier for damages growing out of injuries to her son allegedly caused by the defendant's negligence. The plaintiff alleged in part as follows: that Dozier Funeral Home, Inc., is in the business of a funeral home and undertaker in Rome, Floyd County, Georgia, and as such on or about January 20, 1956, conducted and operated such a funeral home business and in connection therewith owned ambulances and hearses and the usual properties incident to the preparation and burial of the dead; that the defendant, Weymond Dozier, on said date, was the sole embalmer and funeral director and was also the secretary of the corporation; that the defendant was the sole employee of said corporation except for casual employees, and was the sole person who performed any general duties for the corporation and was charged with the responsibility for the general conduct of the business of the corporation and performed such duties; that said corporation is insolvent; that the place of business conducted by the corporation and the place of residence of the defendant Weymond Dozier are contiguous to each other, in that said funeral home is in one side of a dwelling house and said Weymond Dozier's residence is in the other side; that two funeral hearses owned by the corporation in the proper conduct of the business are committed to the care, management and direction of the defendant and the vehicles are in the constant and continuous care of the defendant; that defendant Weymond Dozier always left said funeral hearses parked in the rear of the dwelling house when they were not in use and always left the ignition key in the vehicles; that this continuous conduct was well known to one John Dixon; that the defendant knew that John Dixon had knowledge that the ignition keys were always left in the funeral hearses; that the funeral hearses are unusual and uncommon vehicles inasmuch as said vehicles are not generally owned by individuals, but are owned almost exclusively by funeral homes and hospitals; that the funeral hearses are of unusual construction and design, and hold a peculiar interest because of their odd construction and their association with funerals, death and emergencies, and have a peculiar interest for children who have young and inquiring minds, and are singularly attractive to errant children who are prone to investigate and satisfy their natural curiosity about such vehicles; that on or about January 20, 1956, John Dixon, a minor age 15, the nephew of the defendant and a member of defendant's family, was at the funeral home at about 10 o'clock in the morning; that at said time and place the defendant and his wife left the premises of the funeral home to go to Atlanta and left the premises totally unattended except for the presence of John Dixon, and Dixon was left alone with full access to the premises and funeral hearses, and said fact was known to the defendant; that the home side of the dwelling house was locked but the funeral home side was unlocked, it being the practice of the defendant always to leave the funeral home unlocked and the ignition keys and funeral hearses as aforesaid; that John Dixon being peculiarly attracted to the unusual features of the funeral hearses, knowing that the defendant was away and in Atlanta, and there being no one there to supervise his activities, got inside one of the vehicles and started the engine of the vehicle, engaged the gears and proceeded to drive the funeral hearse away from the premises and on a "joy ride"; that while on such "joy ride" John O. Dixon negligently collided with the plaintiff's son who was riding a bicycle, injuring the son and causing enumerated damages.
The court sustained the defendant's general demurrer to the petition and dismissed the action and the plaintiff excepts.
The plaintiff in error relies on the doctrine of law announced in the "turntable" or attractive nuisance cases. Originally, such doctrine applied to children of tender years and dealt with appliances, machinery or situations which were of such nature as to be almost inherently dangerous when children played upon them or became involved. That doctrine is not applicable under the facts of this case. It has been repeatedly held that the principle of the doctrine will not be extended. Dawley v. Sheridan-Punaro Co., 93 Ga. App. 696, 699 ( 92 S.E.2d 613). Cases involving the negligent keeping of explosives, which are dangerous by their very nature, so as to permit children to have access to them, such as Wallace v. Matthewson, 143 Ga. 236 ( 84 S.E. 450) and Mills v. Central of Ga. Ry. Co., 140 Ga. 181 ( 78 S.E. 816, Ann. Cas. 1914C 1098) are clearly not applicable.
We do not say that if an owner of a vehicle has actual knowledge that on previous occasions where he had left the key in a vehicle and the vehicle unattended, an incompetent driver had taken the vehicle on joy rides, a jury would not be authorized to find the owner negligent in subsequently leaving the keys in the vehicle and the vehicle unattended and accessible to the incompetent driver. However, such finding of negligence could not be based on the "turntable" or attractive nuisance doctrine but on the failure of the defendant to exercise ordinary care under the circumstances.
In the instant case the plaintiff alleges that the defendant knew or should have known in the exercise of ordinary care of the previous occasions when John Dixon had taken the vehicle on "joy rides." This amounts to an allegation of constructive notice only and such notice is insufficient to charge the defendant with the negligence sought to be charged against him in this case, that is, failure to anticipate that John Dixon would drive the vehicle if the keys were left therein and the vehicle was left unattended.
The plaintiff did not show other facts which would have put the defendant on notice that John Dixon might drive the vehicle when the keys were left therein and the vehicle unattended.
The court did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Quillian and Nichols, JJ., concur.