Opinion
37669.
DECIDED MAY 12, 1959.
Action for damages. Fulton Superior Court. Before Judge Alverson. March 3, 1959.
Leonard Pennisi, Marjorie King, for plaintiff in error.
T. J. Long, Ben Weinberg, Jr., contra.
The petition, having failed to allege facts showing the neglect of any duty on the part of the defendant such as would constitute negligence, was properly dismissed by the trial court on general demurrer.
DECIDED MAY 12, 1959.
Willie Bell Woods brought suit in Fulton Superior Court in August, 1958, against Elizabeth Simpson, claiming $35,000, by virtue of the alleged negligence of the defendant. The petition sets up that on or about February 6, 1958, she was employed by said defendant as a maid in the defendant's home, working three days each week therein at a wage of $5.00 a day, her duties consisting of cleaning the home of the defendant, and other work incidental and pertaining thereto. The plaintiff set up that about 4:45 p. m. of said date she had completed her work and the defendant did instruct and summon her to appear before her for some instructions concerning the performance of certain duties on the following day. The plaintiff alleged that at such time she was in some other portion of the house of the defendant and in order to comply with the summons of the defendant she had to use and pass through a certain hallway in the defendant's house, same being a comparatively narrow hall, "where only two persons may and can walk abreast by going very close together and that the flooring thereof is highly polished with wax, and then re-polished again with an electric buffing machine so as to make the said flooring slick and smooth like glass." The plaintiff further alleged that the defendant also owned and possessed a certain canine pet, such pet being under her (the defendant's) complete control and was kept unleashed; that the animal has the absolute privilege of roaming both within and without the defendant's house at his pleasure; that said dog thus interferes with the proper performance by the plaintiff of her work; that she has frequently notified the defendant of such situation and requested that the defendant keep this dog penned or under control, and that the defendant has failed and refused so to do. The plaintiff further set out that on said date when the plaintiff was requested to come and see the defendant, the plaintiff began walking towards where the defendant was so as to ascertain what the defendant wished to see her about, and in order to reach the place in said house where the defendant was located, the plaintiff had to pass through said hallway, so described, and while walking thereon said dog of the defendant, unseen and unknown to the plaintiff, did run "very fast from the rear of said house and onto said hall, and in so doing the dog hit and collided with plaintiff's right leg (her calf); that by said collision, which plaintiff herein did not expect, suddenly, by the impact, she lost her balance and, unable to right herself due also to the waxed and slick flooring of said hall, she fell violently to the floor." The plaintiff further alleges that as a result she was badly and seriously hurt and injured and was incapacitated in the performance of her duties, describing in detail the injuries to her shoulders and arms, and that she suffered broken bones and strained and twisted muscle ligaments, all causing great pain and injury. The plaintiff further set out that she was at said time 42 years of age and that she was then earning $15 weekly besides $6 additional each week, and that her ability to earn said sum had been entirely ruined and destroyed and she was no longer able to work as she had been accustomed.
The defendant demurred to the plaintiff's petition on the ground that the same is insufficient in law and fails to state a cause of action against her. The trial judge sustained said demurrer but gave the plaintiff ten days in which to amend her petition. The petition not having been amended, the trial court, on March 3, 1959, entered a final order and judgment dismissing it, and on this judgment the case is here for review.
The plaintiff herein was, of course, rightfully upon the premises of the defendant. As to this there can be no dispute. However, it appears from the allegations of the plaintiff's petition that she was well acquainted with the nature of the defendant's dog and its habit of romping and playing about the defendant's home wherein the plaintiff was employed as a maid, and that this dog did so without restraint. None of the grounds set forth in the plaintiff's petition shows any neglect of duty on the defendant's part as to the plaintiff, such as would constitute negligence under the law. As to the dog's being allowed to romp about the house unleashed, he was a domesticated animal, and it does not appear that he was accustomed to attack persons viciously, but only to romp and play, as do most dogs. As to the plaintiff's request made to the defendant that she pen this dog, and the failure of the defendant to do so, no negligence appears. While the plaintiff made such request prior to the time the dog ran against her leg, as a result whereof she was knocked down and injured, it does not appear that when the defendant would not pen or leash the animal she quit work, but on the contrary it appears that she continued to work for the defendant thereafter. It appears from the petition that the plaintiff well knew of the propensities of this dog to romp and play and that she was well acquainted with the fact that the hall wherein she walked and which she was using to answer the call of her mistress at the time she was injured was waxed and was also slick.
The allegations of this petition show no liability on the part of the defendant, nor any breach of any duty under the law on her part towards the plaintiff such as would, under the law, constitute negligence. The petition of the plaintiff, therefore, failed to set out a cause of action, and when the court sustained the general demurrer to the petition giving the plaintiff ten days to amend, which she did not do, the trial court did not err in making such order and judgment final and dismissing it.
Judgment affirmed. Townsend and Carlisle, JJ., concur.