Thomas A. Jacobs Jr., for plaintiff in error.
L. Eugene Jessup, contra.
MacIntyre, P.J. Gardner and Townsend, JJ., concur.
B. H. Watts, as next friend of Jimmie Lee Watts, brought suit against David Banks, individually and doing business as the Superior Cleaners and as Banks Cleaning & Pressing Company, for damages as a result of personal injuries alleged to have been sustained by Jimmie Lee Watts, a child seven years of age.
To the petition as amended the defendant filed general and special demurrers; the trial Judge overruled each and every demurrer, and the defendant excepted.
The allegations of the petition material to a determination of the questions presented are in substance these: (3) The plaintiff avers that the building housing the aforementioned cleaning establishment has a frontage on Hazel Street of approximately twenty-four feet; that said building is situated twenty-two feet from the curb of Hazel Street, and that approximately one-half the space between the door of the building and the street curb is appropriated to a paved public sidewalk and a concrete walkway in front of the building; (4) that Hazel Street, on which the aforementioned building fronts, is a busy thoroughfare located in a thickly populated section of the City of Macon; that a congested situation for pedestrians exists in front of the defendant's place of business due to the fact that automobiles park along and against the curb here restricting part of the sidewalk space, and due further to the fact that the sidewalk here is damaged and broken with parts of it missing; that this situation makes it necessary for members of the public to frequently walk across the property of the defendant in the act of passing along the sidewalk or in going to a U.S. mailbox which is located on the defendant's property; that it has been a custom of members of the public to walk across the space in front of the defendant's place of business, since the time the building was erected many years ago as an armory; that the defendant is and has been aware of this custom, and that he has acquiesced in such practice on the part of members of the public; that he has further invited such use of his property by having constructed a concrete walk twenty-two feet in length and fifty-four inches in width from the sidewalk to his door, and has constructed alongside said walk concrete triangles with the base of said triangles against the public sidewalk and the apex alongside his walk, so as to constitute his walk a continuation of and a part of the public sidewalk; that said concrete triangles along his walk in front of his door have been reversed, so that the base of the triangle forms a walkway in front of his door parallel to the public sidewalk over a portion of his property which had formerly been a pathway; that the City of Macon at one time owned an encroachment of ten feet from Hazel Street into the space in front of the defendant's building; (5) the plaintiff avers that the defendant, at the time of installing cleaning and pressing machinery in his place of business, caused, or subsequent to that time, allowed, two steam exhaust pipes, three-quarters of an inch in diameter, to be extended some two feet through and beyond the front of the building out onto the concrete walkway, so as to constitute a dangerous instrumentality and a hazard to individual members of the public going to and from the building and crossing the walkway, as it is and has long been their custom to do; (6) that he failed or refused to place any warning sign or notice of the existence or location of the pipes, but, instead, he recklessly, wantonly, and wilfully caused the pipes to be so placed or allowed them to so remain so that they might empty and did empty and expel steam and boiling water from the cleaning and pressing machinery upon the concrete walkway into the path of individual members of the public; (7) the plaintiff avers that Jimmie Lee Watts was walking from his home at 1010 Hazel Street, in a southeasterly direction along Hazel Street, in the act of going to a hamburger stand located two doors below the defendant's place of business; that said minor, who was barefoot, walked across the concrete walkway in front of Number 870 Hazel Street, and, as he approached a position alongside the front door of the building, was suddenly enveloped in steam which the defendant or his employee suddenly, recklessly, unnecessarily, and without any warning, caused to be emitted from the exhaust pipes, emptying a large quantity of boiling water upon the feet and legs of the barefoot child; (9) that the defendant owed the minor child the duty of keeping the premises in a reasonably safe and suitable condition both as to its approaches and as to its premises; because of the physical facts surrounding the premises, its proximity to the public sidewalk and street, because of the custom of members of the public to come upon the premises of the defendant, because of defendant's acquiescence in this practice, the defendant owed the child the duty of anticipating that he and other such children might come upon his premises, because of their license to do so; that the defendant owed the child the duty of keeping the premises in such a condition so as not to allow him to be injured because of a dangerous instrumentality in his pathway; the defendant owed the child the further duty of not injuring him after he came upon the premises; that the defendant did, through his reckless, wanton, wilful and criminal misconduct, breach the duty owed to the child, and that, as a result of such breach of duty by the defendant, the child was injured.
Since the petition discloses no mutuality of interest between the injured child and the defendant, the former was not an invitee of the latter. Central of Georgia Railway Co. v. Ledbetter, 46 Ga. App. 500 (168 S.E. 81).
In Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490, 492 (118 S.E. 697), it is said: "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 . . . In the case of a trespasser 'liability arises only where the injury has been occasioned by the wilful and wanton negligence of the proprietor or owner. No duty of anticipating his presence is imposed; and, as was pointed out by this court in Charleston & W.C. Ry. Co. v. Johnson, 1 Ga. App. 441 (57 S.E. 1064), the duty to use ordinary care to avoid injuring him after his presence and danger is actually known is, in point of fact, merely the duty not to injure him wantonly or wilfully.' In the case of a licensee 'there is a slightly higher duty on the part of the owner or proprietor of the premises. He must not wantonly and wilfully injure the licensee; and since his presence as a result of his license is at all times probable, some care must be taken to anticipate his presence, and ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated . . . To the licensee, as to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, mantraps, and things of that character.'"
We are of the opinion that the allegations of the petition in the case sub judice show that the child was a licensee. Viewing him as a licensee, the defendant owed the child a duty to refrain from wilfully or wantonly injuring, or wantonly and recklessly exposing him to hidden perils, and a duty to exercise ordinary care to avoid injuring him after his presence on the premises was, or should have been, discovered. Rawlins v. Pickren, 45 Ga. App. 261, 262 (164 S.E. 223); Bohn v. Beasley, 51 Ga. App. 341 (180 S.E. 656).
The petition shows that the positive, direct act of the defendant caused the injury. The slightest care on the part of the defendant would have obviated any danger. To look out along the course of the projected stream and ascertain if the way was clear would have required but a moment's notice. The deflection of the pipes downward, or to protect them by hoods, could easily have been done, and the peril thereby removed. Whether the affirmative act of the defendant amounted to a lack of ordinary care and diligence after the presence of the child was known or reasonably should have been anticipated is a question which should be submitted to the jury. See, in this connection, Wilson v. American Bridge Co., 74 App. Div. 596 (77 N.Y. Supp. 820). As against a general demurrer, the petition sets forth a cause of action, and the Judge did not err in overruling the demurrer of the defendant.
We have considered each and every ground of the defendant's special demurrers and find them to be without merit. The Judge did not err in overruling all special demurrers.