Summary
In Deese, supra at 707 (1), it was held, "it is unnecessary to decide whether the deceased was a trespasser or licensee, since the duty owed to both is the same, namely, to use ordinary care to avoid injuring him after his presence and danger are actually known or when the danger is known and his presence is reasonably to be anticipated, which... is merely the duty not to injure him wantonly or wilfully.
Summary of this case from Wade v. MitchellOpinion
32301.
DECIDED FEBRUARY 11, 1949. REHEARING DENIED FEBRUARY 26, 1949.
Damages; from Albany City Court — Judge Clayton Jones. November 4, 1948.
Leonard Farkas Walter H. Burt, for plaintiff in error.
J. Neely Peacock Jr., contra.
1. The court did not err in overruling the general and special demurrers, with the exception of the special demurrer shown in division two of the opinion.
2. The action here is one based on wilful and wanton misconduct, and the allegation in the petition seeking to charge the defendant with the duty of keeping the premises in a safe condition as to a trespasser or licensee was subject to the special demurrer directed against it and should have been stricken.
DECIDED FEBRUARY 11, 1949. REHEARING DENIED FEBRUARY 26, 1949.
Mrs. Ethel Deese sued Georgia Power Company for damages for the homicide of her husband by drowning caused by the acts of agents of the power company in releasing a deluge of water held back by a dam while the deceased husband was below the dam fishing in a boat. The original petition alleged substantially the following: that the defendant power company operated a power house and dam on the Flint River; that for a period of 20 to 25 years the defendant "allowed and invited the general public" to use waters below the dam for fishing purposes and that members of the public had done so for many years; that the defendant had invited the public to use its property for the purpose of reaching fishing waters and had erected a sign which welcomed visitors and provided and kept up a road leading to fishing grounds for use of the public; that the use of the water below the dam for such purposes was known to the defendant and its employees; that on April 21, 1948, the plaintiff and her husband by invitation of the defendant were engaged in the sport of fishing in a boat "just above a small island near the western shore of said Flint River;" that it has been the custom of employees of the defendant when elevating the gates of said dam to allow the escape of excess water to warn people below of their intentions because when one or more gates are opened, a turbulence is created in the river, causing waves from 2 to 3 feet high and creating a terrific current and eddy in waters below said dam causing boats to capsize, and this fact was well known to the defendant and its employees; that about 7:30 a. m. on this date two employees of the defendant came out of the power house to the top of the dam and walked across the top of said dam a distance of better than 430 feet for the purpose of obtaining a dolly used to raise the gates of said dam; that while said employees were walking to the east bank and while returning with the dolly, the plaintiff and her husband were "plainly in the view of said employees," and said employees "saw plaintiff and her husband fishing from the boat in the calm water just above the island," but gave them no warning as to their intention; that gate 1 was raised, releasing the impounded water and causing a great turbulence which capsized their boat, resulting in the death of the plaintiff's husband by drowning; that the plaintiff and her husband exercised ordinary care, but could not avoid the death of her husband; that the acts of negligence were the proximate cause of the death of the plaintiff's husband, and the defendant was negligent. (1) in failing to warn them of their intention to open said gate, although the plaintiff and her husband were seen by the defendant's employees before they opened the gate; (2) in that the defendant's agents saw them prior to the opening of said gate, and "in spite of their knowledge of the presence of plaintiff and her husband in the river below, they opened said gate," causing the death of the plaintiff's husband; and (3) that "these acts of the defendant's servants were gross negligence and amounted to wilful and wanton negligence."
The defendant filed its general and special demurrers to the above petition, whereupon, the plaintiff, with leave of the court, amended her petition in the following manner: That the invitation on the part of the defendant company consisted of acquiescence of the defendant in allowing the general public to use such waters, and a sign on property of the defendant read as follows: "Entering Property of Georgia Power Co. Flint River Hydro-Electric Plant, Visitors Welcome"; and that by reason of said sign and the acquiescence of the defendant, the general public has used said waters with consent of the defendant. It was further alleged that they, after fishing for 20 minutes at a spot 150 yards distance from the dam, moved their boat to a point about 75 yards from the dam, and that "plaintiff and her husband were in full view of defendant's servants from the time said servants left power house until they opened said gate 1". The amendment alleged more specifically the events which took place immediately after the gate was raised until the deceased's death; and added that the defendant owed the plaintiff and her husband a duty of keeping the premises in a safe and suitable condition because of custom; that "defendant was guilty of a lack of ordinary care and diligence" in raising said gate without warning them; and that the defendant breached its duty of keeping the premises in such a condition as not to allow the plaintiff's husband "to be injured because of a dangerous instrumentality, to wit, the opening of the gate on top of said dam without warning"; and that the defendant did through its wilful misconduct breach its duty of ordinary care owed to the deceased by opening the gate without warning, and that the defendant's servants knew or should have known that the sudden release of water would cause injury or death to the plaintiff's husband. The defendant renewed its original demurrers and demurred to the petition as amended.
The trial court overruled all demurrers, and the defendant excepted.
1. This is an action based on wilful and wanton misconduct. Under the facts alleged in the petition, the deceased was not an invitee by express or implied invitation, as no benefit accrued to the defendant from the presence of the deceased on the premises. "Speaking generally, where the privilege of user exists for the common interest or mutual advantage of both parties, it will be held to be a case of invitation; but if it exists for the mere pleasure and benefit of the party exercising the privilege, it will be held to be a case of license." 17 R. C. L. 566, § 79. Also see Atlantic Steel Company v. Cleaton, 52 Ga. App. 502 ( 183 S.E. 827). Since the deceased came on the property of the defendant solely for purposes of his own benefit; namely, to fish, there was no mutuality of interest which is necessary to create the relationship of implied invitee. Central of Georgia Ry. Co. v. Ledbetter, 46 Ga. App. 500 ( 168 S.E. 81).
For purposes of this case it is unnecessary to decide whether the deceased was a trespasser or licensee, since the duty owed to both is the same, namely, to use ordinary care to avoid injuring him after his presence and danger are actually known or when the danger is known and his presence is reasonably to be anticipated, which, in point of fact, is merely the duty not to injure him wantonly or wilfully. Mandeville Mills v. Dale, 2 Ga. App. 607, 609 ( 58 S.E. 1060); Cook v. Southern Ry. Co., 53 Ga. App. 723, 725 ( 187 S.E. 274); Leach v. Inman, 63 Ga. App. 790 ( 12 S.E.2d 103). In the instant case, it was alleged that the defendant's employees actually saw the deceased in a perilous position twenty minutes prior to the opening of said gate, and that he was in full view of the defendant's employees at the time the gate was opened. Therefore, the duty owed to the deceased after his presence was discovered or was reasonably to be anticipated, whether he be classified as a licensee or trespasser, was to use ordinary care to avoid inflicting injuries on him. It was a question for a jury whether the conduct of the defendant's employees constituted a breach of ordinary care, and whether such, under the circumstances, amounted to wilful and wanton conduct. The fact that the employees did not actually see the the deceased at the moment they opened the gate will not relieve them from the duty to exercise ordinary care, since a jury could find that they were charged with the duty to anticipate the deceased's presence, and were still obligated, in the exercise of ordinary care, to determine whether or not the deceased was within the range of any danger set in motion by their acts, under the allegations of the petition.
Counsel for the defendant contends that the original petition fails to allege facts amounting to wilful and wanton negligence, and that the petition is duplicitous in that wilful and wanton conduct and simple negligence are set out in the same count. We do not agree with these contentions. The petition specifically designates the conduct of the defendant's employees as wilful and wanton and properly alleges facts that would authorize a jury to find that the failure to exercise ordinary care under the circumstances amounted to wilful and wanton misconduct. "It is usually wilful or wanton not to exercise ordinary care to prevent injury to a person who is actually known to be, or reasonably expected to be, within the range of a dangerous act being done." Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 153 ( 178 S.E. 451); Ashworth v. Southern Ry. Co., 116 Ga. 635-638 (43 S.E. 36, 59 L.R.A. 592). The defendant further contends that the petition failed to allege knowledge on the part of the defendant's servants that the opening of the gate would cause injury to the deceased. Paragraph 10 of the petition sets out the following: "When one or more gates is open a turbulence is created in the river, causing waves from two to three feet high and creating a terrific current and eddy in said waters below said dam, which will cause boats on the river below said dam to capsize, and this fact was well known to defendant and its employees." This allegation charges actual knowledge on the part of the employees as to what would happen when a gate was opened, and not implied knowledge as contended by the defendant. In this case we have allegations of the two requisites necessary to show wilful-misconduct circumstances, to wit, knowledge of the injured person's presence or facts which show that his presence should have been reasonably anticipated, and knowledge of the injured person's danger in the premises. Southern Ry. Co. v. Chatman, 124 Ga. 1026 ( 53 S.E. 692, 6 L.R.A. (N.S.) 283, 4 Ann. Cas. 675); Charleston W. C. Ry. Co. v. Johnson, 1 Ga. App. 441 ( 57 S.E. 1064); Tice v. Central of Ga. Ry. Co., 25 Ga. App. 346 ( 103 S.E. 262).
Another contention of the defendant is that it affirmatively appears that the deceased could have prevented the injury to himself by the exercise of ordinary care. The allegations of the petition do not show such to be the case as a matter of law, but even if it did, the failure of the deceased to avoid the conduct of the defendant does not defeat a recovery in cases of wilful and wanton conduct. Tice v. Central of Ga. Ry. Co., supra.
2. The court erred in overruling the defendant's special demurrer to the allegation of negligence on the part of the defendant, where it was alleged that a duty was owed to the plaintiff and her husband to keep the premises in a safe and suitable condition. The defendant company owed no duty to the deceased, whether he was a trespasser or licensee, to keep its premises in a safe condition. Leach v. Inman, supra.
The court did not err in overruling the defendant's general demurrer and other special demurrers.
Judgment affirmed in part, and reversed in part. Sutton, C. J., and Parker, J., concur.