Flint River Cotton Mills v. Colley , 71 Ga. App. 288 ( 1944 )

Counsel for the plaintiff in error say that "before there could be a matter of present mutual interest between plaintiff's child and the defendant there had to be a binding contract between such child and the defendant in connection with some business of the defendant." They contend that a child only four years and eight months old, who manifestly could not enter into a binding contractual relationship with the defendant, could not become or occupy the status of an invitee by reason of an invitation from the owner and occupier to enter into and remove turtles and fish from its reservoir. Mutuality of interest does not mean that there must be a commercial business transaction between the parties, but merely that each party is moved by a lawful purpose or interest in the object and subject-matter of the invitation. The enterprise must be mutual to the extent that each party is lawfully interested therein, or that there is a common interest or mutual advantage involved. In sustaining the overruling of a general demurrer to the petition of the plaintiff in Sterchi Brothers Stores v. Podhouser, 61 Ga. App. 184 (6 S.E.2d, 92), this court held that an eight-year-old child, in company with his father, they having been invited into a booth in a building to see a washing machine demonstrated, was an invitee. Where a person induces or leads another to come upon his premises "for any lawful purpose," he is liable in damages to such person for his failure to exercise ordinary care in keeping the premises and approaches safe. Code, § 105-401.

The draining and cleansing of the reservoir was a purpose connected with the business of the defendant, but it was not necessary that the removal of fish and turtles from the reservoir, the particular object and purpose of the visit by the child, be for the benefit of the defendant. These principles were recognized and stated in Hall v. Capps, 52 Ga. App. 150 (3) (182 S.E. 625), relied on by counsel for the defendant, While the infancy of the plaintiff in a negligence action does not supply the place of negligence on the part of the defendant (Atlanta West Point R. Co. v. West, 121 Ga. 641, 646,49 S.E. 711, 67 L.R.A. 701, 104 Am. St. Rep. 179), "children of tender years and youthful persons generally are entitled to a degree of care proportioned to their ability to foresee and avoid" perils that may be encountered. Lee v.Georgia Forest Products Co., 44 Ga. App. 850, 852 (163 S.E. 267). There is a greater duty owed to small children lawfully upon premises than to older persons. Etheredge v. CentralRailway Co., 122 Ga. 853 (50 S.E. 1003). The sum of the whole matter, as quoted by Judge Guerry in Cook v. Southern Ry.Co., 53 Ga. App. 723, 727 (187 S.E. 274), is included in the expression that "duties arise out of circumstances." As was said by this court in Sterchi Brothers Stores v. Podhouser, supra, the fact that the express invitation was given the plaintiff's child by the defendant to do a thing in connection with and to further its own business, by assisting in cleaning out and making more sanitary its water reservoir, differentiates this case from those which hold that even where one visits the premises of another on express invitation, but the purpose of the visit is wholly disconnected with the business of the owner, such invited person is a mere licensee. The cases cited by movant are distinguished by their particular facts from this case.