Opinion
38761.
DECIDED APRIL 10, 1961.
Action for damages. Fulton Superior Court. Before Judge Pye.
Cook, Llop Long, Thomas F. Choyce, Joseph L. Llop, for plaintiff in error.
Hurt, Gaines, Baird, Peek Peabody, Joe C. Freeman, Jr., contra.
The petition failed to set forth a cause of action against the defendant, and the judgment of the trial court sustaining the general demurrer was not error.
DECIDED APRIL 10, 1961.
Margret A. Brand sued W. D. Pope, Jr., to recover for injuries sustained by her while an invitee in the defendant's home. The petition, with reference to how the plaintiff's injuries occurred, alleged: "That the defendant invited the plaintiff to his residence for the purpose of visiting with his family; that between the living room and the Florida room of the premises of the defendant, there existed a sliding glass door separating the aforesaid two rooms; that said glass sliding door was composed of clear glass and unmarked in any manner whatsoever, and in no way could a person using due care and diligence for her own safety observe and detect that a glass panel existed if in a closed condition; that the plaintiff, the defendant's wife and a third person, a lady friend, had been visiting in the living room area of the defendant's premises all afternoon on said date complained of herein, the sliding glass panel door having remained open during said time; that at approximately 6:15 p. m. o'clock, on said date and place complained of herein, the defendant, Mr. W. D. Pope, Jr., arrived at his residence and was proceeding through the Florida room area into the living room towards the company, including his wife, the plaintiff and the third person, whereupon, the plaintiff proceeded from the living room to meet the defendant to extend her greetings; that during the aforesaid afternoon, the servant of the defendant acting in behalf of the defendant and within the scope of her employ had closed said clear glass paneled unmarked door without the knowledge of the plaintiff, but with the knowledge of the defendant's wife; that as the plaintiff proceeded to greet the defendant, she crashed into said glass panel door, smashing into it and shattering her face and body into the glass panel and in fact, the plaintiff went through the said glass panel door and injuring her very severely and permanently as hereinafter shown." As to the defendant's negligence, it was alleged: "Plaintiff shows that said glass panel unmarked door could not have been discovered by her and was not discovered by her in the exercise of that degree of care which the law imposed on her, but could or would have been known to the defendant in the exercise of ordinary care, that said glass panel door was not visible to the plaintiff for the reason that it was unmarked and clear as though it was not present at said time of the complaint and in fact, was not visible or obvious to the plaintiff that said glass panel door constituted a dangerous condition and unsafe; that the defendant was guilty of the additional acts of negligence: (a) In causing and permitting said glass panel door to be closed while the plaintiff was in the premises of the defendant, rendering said premises unsafe and extremely dangerous, and in fact, injuring the plaintiff as aforesaid, in violation of the requirements of ordinary care and diligence; (b) In failing to warn your petitioner of the peril and hazard of walking across said living room into said Florida room which had been rendered dangerous by having said glass unmarked panel door to be closed, in failure to open said door; (c) In failing to provide your petitioner who was an invitee and guest lawfully upon the premises of the defendant with safe means of ingress from and egress to the adjoining room to the living room after requesting the plaintiff to come to the premises of the defendant; (d) In failing to caution the petitioner on the dangerous and unsafe condition of said premises, although the defendant knew of said condition and also knew that petitioner was not aware of same; (e) In failing to warn the petitioner that said glass unmarked panel invisible-like doors had been closed although defendant could not reasonably have assumed that petitioner was aware of same, or that she would observe or discover such dangerous condition by a reasonable use of her faculties. That the injuries received as a result of the complaint set out herein were solely, directly and proximately caused by the negligence of the defendant as herein set out." The defendant demurred generally to the plaintiff's petition and the plaintiff now assigns as error the judgment of the trial court sustaining such demurrer and dismissing the plaintiff's action.
The allegations of the plaintiff's petition show that she was an invitee in the defendant's home and that she was injured while she occupied such status. The allegations of negligence are all based on the premise that the defendant should not have had a glass sliding door between the "living room" and the "Florida room" of his home, for no defect in the construction of the door itself was alleged nor was it alleged that the defendant was negligent in the maintenance of such door other than allowing it to be closed without prior warning to the plaintiff.
Before a recovery is authorized for the plaintiff in an action against an owner and occupier of land for injuries occasioned by the plaintiff while an invitee on such premises it must be shown that the conditions allegedly causing the injuries were less safe than those provided by ordinarily prudent owners and occupiers of land for their invitees. See Pettit v. Stiles Hotel Co., 97 Ga. App. 137 ( 102 S.E.2d 693), and citations.
Nor does the mere fact that a plaintiff is injured without fault on her part authorize a recovery, for it is the negligence of the defendant in a tort action that authorizes the recovery of damages by the plaintiff and not merely the injury, for if neither party is negligent the occurrence is an "accident" in the eyes of the law, and no recovery is authorized in such cases. See Fair v. Huddle, 98 Ga. App. 466 ( 106 S.E.2d 72), and citations.
The sliding door in the present case was between rooms of the defendant's home and certainly, in the absence of allegations that the rooms were constructed in a manner that suggested the absence of the door (e.g., a finished archway with no provisions for a door) a door is expected between rooms. The plaintiff alleged that the "door was composed of clear glass and unmarked in any manner." Construing such allegation, as it must be construed on general demurrer, against the pleader, it must be construed as alleging that the glass panel was not detectable but not as an allegation that no "metal" or other hardware was used in constructing the door (frame, handle, lock, etc.), or that no track was provided for such door to move in when it was being opened and closed.
In the case of Rosenberg v. Hartman, 313 Mass. 54, 55 (46 N.E.. 2d 406), the Supreme Court of Massachusetts said, with reference to a case wherein the plaintiff was injured when he walked into a closed door at the entrance of a store: "We do not think negligence ought to be found merely because the door was made of one large piece of glass. It could not have been wholly invisible. Its handles, lock, and fittings were in plain sight. A door is to be expected at the entrance of a store. A door of this kind is to be classed with other forms of construction such as various types, whether new or old, of doors, floors, stairs, and ramps, not out of repair, upon which it is possible for an invitee to receive injury, but which are not of such a character that danger is reasonably to be anticipated from them to persons exercising ordinary care." While such decision is, of course, not binding upon this court, the holding is sound and applicable to the facts in the present case. The door was to be expected, and under the allegations of the petition, it could not have been completely invisible and, since no defect in the manner of construction was alleged, the plaintiff's petition was properly dismissed on general demurrer, since the petition nowhere makes it appear that the premises were less safe than those provided by ordinarily prudent owners and occupiers of land. And it is only where premises are less safe than those provided by ordinarily prudent owners and occupiers of land that a warning need be given to an invitee of their condition.Judgment affirmed. Felton, C. J., and Bell, J., concur.