Opinion
35822.
DECIDED OCTOBER 14, 1955. REHEARING DENIED NOVEMBER 4, 1955.
Action for damages. Before Judge Pharr. Fulton Superior Court. May 26, 1955.
Fisher, Phillips Allen, T. Charles Allen, for plaintiff in error.
Marshall, Greene Neely, Ferdinand Buckley, contra.
The trial court did not err in sustaining the demurrer and in dismissing the petition.
DECIDED OCTOBER 14, 1955 — REHEARING DENIED NOVEMBER 4, 1955.
The plaintiff brought suit in the Superior Court of Fulton County against the defendant, alleging substantially as follows: That the defendant at all times herein was the tenant in possession of warehouse premises located at the corner of McDaniel Street and Stewart Avenue in the City of Atlanta; that said premises consist of a three-floor warehouse building and are under lease to the defendant for a term of years from an owner unknown to the plaintiff but well known to the defendant; that said portion of the building in which the plaintiff was injured was and is under the exclusive possession, custody, occupancy, care and control of the defendant; that said premises contain in the portion of the building occupied by the defendant a freight and personnel elevator which was kept, operated and maintained by the defendant in the dangerous condition hereinafter described; that on November 10, 1954, the plaintiff was a healthy and vigorous male, aged 54 years, and was at the premises of the defendant hereinbefore described to secure a part for a water heater which the plaintiff had been repairing; that the water heater had originally been sold by the defendant and the parts to repair said heater were carried in stock by the defendant at its warehouse; that the defendant from time to time sold said parts to persons such as the plaintiff, who repaired such appliances; that the plaintiff was informed by a servant of the defendant, whose name is unknown to the plaintiff but well known to the defendant, that said water heater part was on an upstairs floor, and was invited by said servant of the defendant to accompany the servant upstairs to secure said part; that on the third floor of said building the plaintiff was shown a water heater containing said part which the plaintiff wished to purchase from the defendant; that another servant of the defendant, whose name is unknown to the plaintiff but well known to the defendant, attempted to remove said part from the heater but was unable to do so; that when informed by the plaintiff that he had a wrench downstairs which could be used to unsecure said part, said servant of the defendant, described in the preceding paragraph, requested the plaintiff to go get said wrench and advised the plaintiff to use a nearby elevator to go downstairs; that said servant of the defendant asked the plaintiff if he knew how to operate said elevator, and after receiving a negative reply from the plaintiff, advised the plaintiff that all he had to do was press the button for the first floor; that the elevator, pointed out by said servant and which the plaintiff entered alone, was an automatic freight and personnel elevator totally within the custody, control, possession and care of the defendant; that said elevator had an inner wooden lattice door which lowered from the top of the elevator straight to the floor and an outer door spring-loaded and in two sections; that the outer door was so constructed that it was divided horizontally in the middle with a spring-loaded connection, so that when the door was opened, the bottom half of the metal door disappeared into the floor of the elevator and the top half disappeared into the ceiling of the elevator; that when the top half of the outer door was pulled down from the top of the elevator doorway, the bottom half, which was connected to the top half by a spring-loaded mechanism, came up from the floor of the elevator with the same force with which the top half came down; that the two halves of the outer door came together completely at the middle of the doorway, and it was in this way that said doorway was closed; that when the plaintiff entered the elevator, he pulled down the inner lattice door without at first noticing an outer door; that the inner door, he observed, came all the way from the ceiling to the floor of said doorway; that after pulling down the inner door the plaintiff pressed the button which indicated the first floor, but the elevator did not move; that upon raising the inner lattice door of the elevator, the plaintiff observed what he thought was the bottom edge of an outer metal door; that having just pulled down the inner wooden lattice door which came all the way down from the ceiling of the elevator, the plaintiff thought that the outer door operated in the same manner; that the plaintiff correctly assumed that the reason the elevator would not respond to the press of the button was because of the outer metal door not being closed; that thinking that the outer door operated in the same manner as the inner door, the plaintiff with his left hand grasped the bottom ledge of the top half of the outer door and pulled firmly and briskly downward; that he did so, and the top half came down, the bottom half came up with the same force and smashed against plaintiff's left wrist mashing the wrist between the two door halves; that there was no sign of any kind in or about the elevator warning persons using said elevator that the outer metal door operated as herein described; that there was no servant of the defendant assigned to the elevator to operate same or to instruct invitees of the defendant in the operation of same; that through its servants as herein described or through other servants unknown to the plaintiff but well known to the defendant all of whom were acting within the scope of their employment, the defendant was negligent in the following particulars: (a) in maintaining on its premises leased for years said dangerous elevator in the breach of its duty to invitees coming upon the premises, (b) in not posting a sign warning users of the elevator that the outer door came together in the middle as herein described, (c) in telling the plaintiff that he could operate the elevator by simply pressing a button without verbally warning the plaintiff about the action of the outer door as herein described, (d) in not providing an operator for said elevator which by itself and without proper operating instructions became a dangerous instrumentality, (e) in allowing the plaintiff to use said elevator alone, unaided and unwarned about the dangerous operation of the outer door when the plaintiff had advised the defendant's servant that the plaintiff was unfamiliar with the operation of said elevator; that the foregoing acts of negligence were the proximate cause of described injuries of the plaintiff's wrist and that the plaintiff was damaged in a stated amount.
The defendant filed a general demurrer on the following grounds: Because said petition fails to state a cause of action against the defendant; because the well pleaded allegations of the plaintiff's petition when stripped of the legal conclusions of the pleader show that the plaintiff was not in the exercise of ordinary care for his own safety; because the plaintiff assumed the risk of the injuries of which he complains. On May 26 Honorable Ralph Pharr issued an order sustaining the demurrers and dismissing the petition.
The plaintiff brought the case to the Court of Appeals by a direct bill of exceptions for a review of the ruling on the general demurrer.
1. Code § 105-401 reads: "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." There is another principle of law which we deem pertinent to quote here and that is embraced in Code § 66-304. That section reads: "Except in case of railroad companies, the master shall not be liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business." It is obvious that if the servant of the defendant had gone alone to get the wrench and had negligently injured himself he would have no action against the master, the defendant in this case. There are no allegations in the petition to show that the servant had any authority to employ the plaintiff to assist the servant in the manner alleged. The plaintiff became the servant of the defendant's servant when he assisted the servant of the master. So far as the petition alleges the defendant violated no duty which it owed to the plaintiff. In Hill v. Davison-Paxon Co., 80 Ga. App. 840, 841 ( 57 S.E.2d 680) it is said: "As between landlord and tenant, master and servant, and owner and customer, one who sustains injuries upon the property of the other, in order to recover, must show that two elements at least exist, viz., fault on the part of the owner, and ignorance of danger on the part of the invitee." Another case in point decided by this court is Early v. Houser Houser, 28 Ga. App. 24 (1, 2, 3) ( 109 S.E.2d 914), wherein it is said: "Legal liability results only from a breach of legal duty which implies the existence of some legal relation. One who without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master is a mere volunteer, and the master does not owe him any duty except not to injure him wilfully and wantonly after his peril is discovered. The allegations of the petition failed to show a breach of any duty of the defendants to the plaintiff in connection with the act in which he is alleged to have been injured, and showed that this act was simply a voluntary one on his part, in which he assumed all the risk."
We call attention to Carstarphen v. Ivey, 66 Ga. App. 865
(19 S.E.2d 341). The plaintiff lays considerable stress upon the case of Helmly v. Savannah Office Building Co., 13 Ga. App. 498 ( 79 S.E. 364). In that case the elevator was being operated by a servant of the defendant. See Macon Savings Bank v. Geoghegan, 48 Ga. App. 1 ( 171 S.E. 853); Byrd v. Atlanta National Bank, 16 Ga. App. 7 ( 84 S.E. 219); and Piggly Wiggly Macon, Inc. v. Kelsey, 83 Ga. App. 526 ( 64 S.E.2d 201). There are many decisions concerning the issue before us. We think it would be superfluous for us to enter into a discussion of these cases in an effort to distinguish them from the case at bar. The facts speak for themselves.
Counsel for the plaintiff call our attention and deal at length with the decision of the Supreme Court in Wynne v. Southern Bell Telephone Co., 159 Ga. 623 ( 126 S.E. 388), which case dealt with a certified question propounded by this court to the Supreme Court. Since we have held that the defendant is not liable to the plaintiff in the instant case for the reason that the plaintiff was not the servant or invitee on the elevator of the defendant, he could not recover, and there is no reason for a discussion of Wynne v. Southern Bell Telephone Co., supra. The same applies to Glover v. City Council of Augusta, 83 Ga. App. 314 ( 63 S.E.2d 422).
The trial court did not err in sustaining the demurrer and dismissing the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.