MacOn Telegraph C. Co. v. Graden , 79 Ga. App. 230 ( 1949 )

1. (a) Where a petition alleges that a certain street of a municipality was set aside to the sponsor of a "Soap Box Derby" for the purpose of conducting the same for the entertainment of the public, that the races are conducted by such sponsor who received the benefit of valuable advertising by reason thereof, and that the contest is attended by the public at the invitation of such sponsor, the sponsor becomes an occupier of the premises within the meaning of Code § 105-401.

(b) Persons attending the contest being held on the premises thus set apart for the use of the sponsor in conducting the "Soap Box Derby" are invitees of such sponsor. See Black's Law Dictionary; Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (118 S.E. 694).

(c) Such sponsor owes such invitees ordinary care in keeping the premises safe for them. See Goettee v. Carlyle, 68 Ga. App. 288 (1) (22 S.E.2d 854); Moone v. Smith, 6 Ga. App. 649 (65 S.E. 712).

(d) Where certain specified conduct is charged as a required degree of negligence in order to make the defendant liable, it is generally a question for the determination of the jury as to whether or not such conduct amounts to the degree of negligence charged. See Southern Stages v. Clements, 71 Ga. App. 169 (2) (30 S.E.2d 429). It is always a jury question where the conduct charged and relied upon is such that different minds might reasonably draw different conclusions therefrom. See Klause v. Nebraska State Board of Agric., 150 Neb. 466 (35 N.W.2d, 104); also Jordon v. Lee, 51 Ga. App. 99 (179 S.E. 739); R. C. L. Vol. 22, Proximate Cause, § 31, p. 148; Moody v. Gulf Refining Co., 142 Tenn. 280 (218 S.W. 817); Teis v. Smuggler Min. Co., 158 Fed. 260 (15 L.R.A. (N.S.) 893); Pilmer v. Boise Traction Co., 14 Idaho 327 (94 P. 432); Stone v. Boston, etc., R. Co., 171 Mass. 536 (51 N.E. 1); Huber v. La Crosse City Ry. Co., 92 Wis. 636 (66 N.W. 708). However, where such conduct is susceptible of but the one inference that it does not amount to the degree of negligence charged, a demurrer to the pleading so charging it must be sustained. See Lester v. Foster, 40 Ga. App. 500 (150 S.E. 433); 45 C. J. 1279, § 852; Moody v. Gulf Refining Co., supra; Clark v. Wallace, 51 Colo. 437 (118 P. 973); Bass v. Southern Enterprises, 32 Ga. App. 399 (2) (123 S.E. 753).

2 (a) Allegations of a petition having some materiality to the cause of action should not be stricken on special demurrer. See Southwestern R. Co. v. Davies, 53 Ga. App. 712 (186 S.E. 899); Goble v. Louisville Nashville R. Co., 187 Ga. 243 (200 S.E. 259).

(b) Where a petition contains general averments which constitute conclusions of the pleader and also specially pleaded facts which warrant such conclusions, the general averments must be construed to have reference to the specially pleaded facts. See North British c. Ins. Co. v. Parnell, 53 Ga. App. 178 (1) (185 S.E. 122).

DECIDED APRIL 21, 1949. REHEARING DENIED MAY 12, 1949. The defendant in error, Mrs. Pauline Graden, hereinafter referred to as the plaintiff, brought suit in the City Court of Macon against the plaintiff in error, Macon Telegraph Publishing Company, hereinafter referred to as the defendant.

The petition as amended alleges substantially: that the defendant sponsored, staged, and conducted, through its agents acting within the scope of their employment, a contest for small homemade racing cars built and driven by children of limited experience and ages; that the contest was sponsored on July 30, 1947, in the City of Macon and is known generally as a "Soap Box Derby"; that the defendant caused much publicity to be given the contest through the press and radio, and as the result thereof received valuable advertising, both before the contest and during the same; that the portion of the streets and sidewalks of the City of Macon known as Emory Highway was set aside by the authorities of said city for the use of the defendant to carry out the purposes of conducting the contest; that the public was invited to attend and a place adjacent to the course was designated by the defendant through its agents as the place for the spectators to occupy from which to view the races; that the plaintiff attended the races, and while she was standing in the place designated for spectators, one of the racing cars without warning left the course and ran into the plaintiff striking her in a violent manner, and inflicting upon her numerous injuries, all of which are described in the petition.

The petition further alleges: that the racing cars participating in the contest, including the particular car which struck the plaintiff, were of flimsy and unsturdy construction; that the car which struck the plaintiff was in defective mechanical condition; that it was driven by a child who was not required to demonstrate his skill, that he was incompetent, and that while his name is unknown to the plaintiff, it is known to the defendant; that very little, if any, inspection was made to determine the condition and safeness of the cars before allowing them to participate in the contest; that the object of the contest was to determine which car could attain the highest rate of speed; that the car which struck the plaintiff was being operated at a rapid rate of speed in excess of 25 miles per hour; that the defendant had control of the launching, allowing to race, and driving of the particular car which struck the plaintiff; that the defendant was negligent in launching said cars from a ramp in order to attain a higher rate of speed, and that six or seven other cars had accidents and were launched from this ramp before the plaintiff was injured by the car which was so launched and struck her; and that the defendant was otherwise negligent — in failing to provide a barrier to prevent the racing cars from leaving the course and running into spectators including the plaintiff, in failing to make the premises safe for the plaintiff and other spectators, in failing to inspect and determine if the racing cars were in good mechanical condition and free from danger to the public, in failing to determine the qualifications and abilities of the drivers of the cars, and in sponsoring and operating a dangerous instrumentality in a public and crowded place.

The defendant filed general and special demurrers to the original petition. The plaintiff filed an amendment, and thereupon the defendant renewed its previous demurrers and added additional grounds. The exception is to the overruling of these demurrers. 1. (a) The petition alleges that a certain street of the City of Macon was set aside to the defendant to sponsor the "Soap Box Derby" at which the plaintiff was injured.

The premises where the race was being conducted at the time of the injury to the plaintiff having been set aside to the defendant for the purpose of sponsoring and conducting the same, the defendant was at the time the occupier of the premises within the meaning of Code § 105-401, which provides as follows: "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe."

(b) The petition alleges that the public was invited to be present upon these premises which had thus been set aside to the defendant; that the benefit the defendant received from the arrangement was valuable advertising; and that pursuant to this invitation the plaintiff attended the race. She was therefore an invitee. The status of an invitee is not dependent here upon an invitation implied by law. The petition alleges that the defendant, through the press and radio, invited and urged the public to attend the contest. Black's Law Dictionary (3rd ed., p. 1007) defines an invitee as one who is at a place at the invitation of another. See also Crossgrove v. Atlantic CoastLine R. Co., 30 Ga. App. 462 (118 S.E. 694, 695). Therefore, under the allegations of the petition, the defendant became an invitee by express invitation to the public generally, which included her.

(c) The defendant as the occupier of the premises owed to the spectators who were present at its invitation, including the plaintiff, ordinary care in keeping the premises safe for them. See Goettee v. Carlyle, 68 Ga. App. 288 (1) (22 S.E.2d 854); Moone v. Smith, 6 Ga. App. 649 (67 S.E. 712).

(d) Whether or not the acts of the defendant, alleged to be negligence with reference to its manner of conducting the races, and whether or not the place provided by the defendant for the occupancy of those who came to see the contest, including the plaintiff, amounted to the lack of the exercise of ordinary care on the part of the defendant toward the plaintiff, are questions for the jury. Whether or not the plaintiff was lacking in the exercise of ordinary care for her own safety at the time of her injury, and whether or not she assumed the risk of the danger of her position, are also questions for the jury. The jury determines, not only whether or not the conditions as alleged were true, but whether or not they amount to negligence and the degree thereof.

Where certain specified conduct is charged as a required degree of negligence in order to make the defendant liable, it is generally a question for the determination of the jury as to whether or not such conduct amounts to the degree of negligence charged. See Klause v. Neb. State Board of Agric., 150 Neb. 466 (35 N.W.2d, 104); also Southern Stages v. Clements, 71 Ga. App. 169 (2) (30 S.E.2d 429). It is always a jury question where the conduct charged and relied upon is such that different minds might reasonably draw different conclusions therefrom.Jordon v. Lee, 51 Ga. App. 99 (179 S.E. 739); 22 R. C. L. (Proximate Cause), 148, § 31; Moody v. Gulf Refining Co.,142 Tenn. 280 (218 S.W. 817); Teis v. Smuggler Min. Co., 158 Fed. 260 (15 L.R.A., (N.S.) 893); Pilmer v. Boise Traction Co.,14 Idaho 327 (94 P. 432); Stone v. Boston, etc., R. Co.,171 Mass. 536 (51 N.E. 1); Huber v. LaCrosse City Ry. Co.,92 Wis. 636 (66 N.W. 708). However, where such conduct is susceptible of but the one inference, that it does not amount to the degree of negligence charged, a demurrer to the pleading so charging it must be sustained. Lester v. Foster, 40 Ga. App. 500 (150 S.E. 433); 45 C. J. 1279, § 852; Moody v. Gulf Refining Co., supra; Clark v. Wallace, 51 Colo. 437 (118 P. 973); Bass v.Southern Enterprises, 32 Ga. App. 399 (2) (123 S.E. 753).

The negligence charged in the petition in the instant case is such that different minds might draw different conclusions therefrom and is therefore a jury question.

2. (a) The grounds of special demurrer to the original petition, which were renewed to the petition as amended, and the additional grounds of special demurrer to the amended petition, generally speaking, contend that the allegations of the petition, to the effect that the cars used in the race, including the car that struck the plaintiff, were of flimsy construction, that they were improperly inspected, that the operators were not required to demonstrate skill, that the rate of speed exceeded 25 miles per hour, that they were launched from a high ramp which practice was not suspended after several cars had been wrecked before the plaintiff was injured, and that they were built and driven by children whose ages and experiences were limited, are irrelevant and immaterial. These allegations are relevant and material as descriptive of the general conditions under which the "Soap Box Derby" was being sponsored and conducted by the defendant. Also the amendment to the petition charges that the particular car which struck the plaintiff was in the same category as the others with reference to flimsiness of construction, lack of inspection, speed, conditions of operation, and lack of experience, on the part of the operators. These allegations throw light on the question of whether or not the defendant was negligent in the manner in which it conducted the entertainment; its knowledge of the dangers to the invitees, including the plaintiff; also on the question of whether or not the plaintiff was guilty of contributory negligence, and whether or not the dangers were so apparent to her that she assumed the risk. The said allegations have some materiality, and the trial court did not err in overruling the special demurrers seeking to have them stricken from the petition. See Southwestern R. Co. v. Davies, 53 Ga. App. 712,716 (186 S.E. 899). Also Goble v. Louisville Nashville R. Co., 187 Ga. 243, 257 (200 S.E. 259).

(b) Other grounds of special demurrer contend that the allegations of the petition charging acts of the defendant to be negligence — in failing to provide a barrier to prevent the racing cars from leaving the race course and running into the plaintiff and other spectators, in failing to provide adequate and safe places from which spectators and the plaintiff could view the races, and in sponsoring and operating a dangerous instrumentality in a public and crowded place — constitute conclusions of the pleader unsupported by any factual allegations in the petition. These general averments that constitute conclusions of the pleader must be construed to have reference to specially pleaded facts which are set forth in the petition and which warrant the conclusions. See North British c. Ins. Co. v. Parnell, 53 Ga. App. 178 (1) (185 S.E. 122); Western Atlantic R. Co. v. Roberts,144 Ga. 250 (86 S.E. 933); Lemon v. Lemon, 141 Ga. 448 (81 S.E. 118); Georgia R. Banking Co. v. Sewell, 57 Ga. App. 674 (4) (196 S.E. 140); Richardson v. Pollard, 57 Ga. App. 777 (4) (196 S.E. 199).

Whether or not the conclusions complained of are warranted by the specific allegations upon which they are based will ultimately become a question for the jury, based on all the evidence, and the trial court did not err in overruling these grounds of special demurrers. The judgment overruling both the general and special demurrers is without error.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).

Judgment affirmed. Sutton, C. J., MacIntyre, P. J., andGardner, J., concur. Felton and Parker, JJ., dissent.