Summary
In Henderson v. Baird, 100 Ga. App. 627, 633 (112 S.E.2d 221), it is stated: "Where a petition states the facts on which the claim of negligence is based, a general allegation in the petition, following a statement of facts relied upon to show negligence, will be construed to have reference to the particular facts pleaded; and, so construed, it is not subject to special demurrer."
Summary of this case from Whitehead v. Central of Ga. R. Co.Opinion
37875.
DECIDED NOVEMBER 5, 1959.
Action for damages. Muscogee Superior Court. Before Judge Thompson. June 25, 1959.
E. B. Cartledge, Jr., John W. Denney, for plaintiff in error.
Hatcher, Smith, Stubbs Rothschild, Albert W. Stubbs, Alan F. Rothschild, contra.
1. Where the injury for which a recovery is sought is caused by the dangerous statical condition of the premises, the injury to the licensee has to be occasioned by wilful and wanton negligence.
2. This court has held in similar situations, that a proprietor does not breach the duty owed children invitees on his premises in leaving gasoline accessible to them.
3. Failure to allege the essential facts by allegations that fall short of the essential facts must be construed to mean the absence of such essential facts.
4. Where a petition states the facts upon which the claim of negligence is based, a general allegation in the petition, following a statement of the facts relied on to show negligence, will be construed to have reference to the particular facts pleaded; and, so construed, it is not subject to special demurrer.
DECIDED NOVEMBER 5, 1959.
Andrew D. Henderson, Jr., by next friend, Mrs. Julienne B. Henderson, instituted a suit for damages in Muscogee Superior Court against William L. Baird and William L. Baird, Jr. The petition alleged the jurisdictional facts and set forth that the defendants were jointly and severally liable to him in a named sum by virtue of the facts alleged. The facts, as succinctly as they may be stated, were: that at all times mentioned in the petition William L. Baird owned certain real estate in Muscogee County on which the defendant resided and that on the same lot was a house occupied by the plaintiff and his parents; William L. Baird, Jr., was seventeen years old, the son of William L. Baird. The petition further related: that at all times mentioned in the petition, William L. Baird, Jr., was acting as agent and servant for William L. Baird in the performance of his duties, and two of the duties of William L. Baird, Jr., were to mow the lawn with a gasoline powered lawn mower and to clean out the swimming pool, removing therefrom trash, litter, frogs, and dirt; Andrew D. Henderson, Jr., was born on February 1, 1950, and on April 14, 1958, prior to being injured, was in excellent health, was a normal child, had no physical impairments, and had an expectancy of 50.24 years according to the Carlisle Mortality Table; on Saturday, April 12, 1958, while in the performance of one of his duties for his father, namely, cleaning out the swimming pool, William L. Baird, Jr., along with his friends well known to defendants, found a frog in the pool, talked about burning the frog with gasoline and pretended that they were going to burn the frog with matches, made movements with their hands as though they were setting fire to the frog, all in the presence of Andrew D. Henderson, Jr., with full knowledge that they were instilling such ideas in the mind of Andrew D. Henderson, Jr., and that he was listening to them and observing their movements; on the following Monday afternoon, April 14, 1958, while in the performance of another one of his duties for his father, mowing the grass around the swimming pool area, with the gasoline powered lawn mower, William L. Baird, Jr., negligently brought a five-gallon can containing gasoline to be used in the gasoline powered lawn mower from the tool house or garage where the gasoline was regularly kept out of the reach of children, and with full knowledge that Andrew D. Henderson, Jr., and other small children of tender years, who did not know the dangers of gasoline, would be playing in and around the swimming pool and bathhouse area, left the five-gallon gasoline can on the patio in front of the bathhouse with about a gallon and half of gasoline in it, without regard for the safety of Andrew D. Henderson, Jr.; on Monday afternoon, April 14, 1958, while in the performance of his duty of mowing the grass for his father and before negligently leaving the gasoline can out on the patio where Andrew D. Henderson, Jr., could not help from seeing or running over it between the pool and the bathhouse, William L. Baird, Jr., negligently gave to Andrew D. Henderson, Jr., a frog that he, William L. Baird, Jr., had found in or around the pool; on Monday afternoon, April 14, 1958, William L. Baird, Jr., after having, in the presence of Andrew D. Henderson, Jr., and while cleaning the swimming pool on the previous Saturday, talked about and pretended, along with his (Baird's) friends well known to defendants, that they were going to burn a frog with matches and gasoline thereby instilling such ideas in Andrew's mind, after having found another frog on Monday afternoon and giving it to Andrew D. Henderson, Jr., and after having further negligently left or placed a gasoline can with about a gallon and half of gasoline therein out on the patio next to the swimming pool and where Andrew D. Henderson, Jr., could not miss seeing it, left Andrew D. Henderson, Jr., in the dangerous situation; on Monday afternoon, April 14, 1958, at about 4:30, after William L. Baird, Jr., had negligently caused to be set up a highly dangerous condition and situation which he knew, or should have known, would not be anticipated, understood or foreseen by a young child such as Andrew D. Henderson, Jr., said Andrew D. Henderson, Jr., put the frog in a flower pot, found the gasoline can with the dangerous fluid therein, went into the house of William L. Baird where he was permitted to get matches, struck a match and put it in the flower pot where the frog then was and poured the gasoline out of the can thereon; as a result, the can exploded and Andrew D. Henderson, Jr., was severely burned, all due to the negligence of William L. Baird, Jr., while acting for his father, William L. Baird; as a result of the aforedescribed explosion, occasioned by the negligent acts of the defendants, Andrew D. Henderson, Jr., a child of tender years, suffered third degree burns over his entire body from his waist to his head, over all the area of his stomach, his chest, his back, his arms, his hands and part of his head so extensively and severely that he was hospitalized from April 14, 1958, through June 28, 1958. The petition alleged as grounds of special damages, that the plaintiff endured great pain and suffering as a result of the explosion, lost time from school, and was unable to engage in normal activities with his playmates; that the injuries sustained by the plaintiff were permanent; that he would on account of his injuries be disfigured and handicapped for the remainder of his life and would continue as long as he lived to endure excruciating pain. The petition then set out the specific acts of negligence it charged the defendants with having committed as follows: (a) In the defendants failing to exercise ordinary care in keeping the aforedescribed premises in a safe condition so as to avoid the injuries sustained by Andrew D. Henderson, Jr.; (b) In defendants expressly inviting Andrew D. Henderson, Jr., a child of tender years, to come upon and play on the premises in the presence of matches and gasoline in a can, which were known by the defendants to contain hidden dangers not known to Andrew D. Henderson, Jr., when used together, and, when so used, were likely to inflict bodily harm upon him; (c) in defendants creating and instilling in the mind of Andrew D. Henderson, Jr., a child of tender years the idea of burning a frog by the use of matches and available highly inflammable material in a container, namely, gasoline in a five-gallon can, which when ignited would likely cause an explosion and thereby cause bodily injuries and damages to Andrew D. Henderson, Jr.; (d) In defendants finding a frog and giving the frog to Andrew D. Henderson, Jr., and placing intentionally or through neglect a five-gallon can with a gallon and half of gasoline therein at a place where Andrew D. Henderson, Jr., had been invited to play and could not miss seeing and getting hold of, after having theretofore instilled in his mind the idea of burning a frog with matches and gasoline, all of which created a dangerous situation for a child of tender years, such as Andrew D. Henderson, Jr., and which would likely cause bodily harm to him should the said instilled idea be carried out by the use of the gasoline in the can; (e) In defendants making available to Andrew D. Henderson, Jr., matches, permitting him to get the matches and then leaving him unattended, after having invited him to come on the premises of William L. Baird, after having created and instilled in his mind the idea of burning a frog with matches and gasoline, after having provided him with a frog to burn, after having placed intentionally or through neglect a five-gallon can with a gallon and half of gasoline therein in the area provided for him to play, all of which the defendants knew, or should have known, created an unsafe and dangerous place and situation for Andrew D. Henderson, Jr.; (f) In the defendants failing to exercise ordinary care in preventing the injuries and damages sustained by Andrew D. Henderson, Jr., after having created a highly dangerous and unsafe situation on the premises where Andrew D. Henderson, Jr., was by invitation; (g) In the defendants permitting Andrew D. Henderson, Jr., to be severely and permanently injured and damaged while on the premises of William L. Baird by invitation; (h) In the defendants, without due regard for the safety of Andrew D. Henderson, Jr., a child of tender years, committing the foregoing series of negligent acts, knowing that there were hidden dangers which were not known nor likely to be known to Andrew D. Henderson, Jr., and which were likely to inflict bodily harm upon him and cause him severe pain and suffering and certain permanent injuries.
The petition alleged that the negligence of the defendants was the proximate cause of the plaintiff's injuries, and prayed substantial damages.
The defendant demurred generally and specially to the petition. The trial judge sustained the general demurrer, and the plaintiff excepted.
1. The status of the plaintiff, according to the allegation of the petition was that of a licensee on the defendants' premises. "The duty generally owed a licensee by the owner or proprietor of premises is not to wilfully and wantonly injure him ( Cobb v. First National Bank of Atlanta, 58 Ga. App. 160 (2), 198 S.E. 111), which includes the obligation not to lay for him or permit to exist pitfalls or mantraps in which it may be reasonably anticipated he will become ensnared ( Bohn v. Beasley, 51 Ga. App. 341, 180 S.E. 656), that is concealed perils to which it may be reasonably anticipated he may become a victim. Rollestone v. Cassirer Co., 3 Ga. App. 161 (2) ( 59 S.E. 442); Leach v. Inman, 63 Ga. App. 790 (5) ( 12 S.E.2d 103); Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490 ( 118 S.E. 697). And after a proprietor or owner of property becomes aware, or should anticipate the presence of the licensee, the duty rests upon the owner or proprietor to exercise ordinary care to avoid injuring him. Banks v. Watts, 75 Ga. App. 769 ( 44 S.E.2d 510); Georgia Southern Fla. Ry. Co. v. Wilson, 93 Ga. App. 94 (1) ( 91 S.E.2d 71)." Cooper v. Anderson, 96 Ga. App. 800, 805, 806 ( 101 S.E.2d 770).
"Where the injury for which a recovery is sought is caused by the dangerous statical condition of the premises, the injury to the licensee has to be occasioned by wilful and wanton negligence." Leach v. Inman, 63 Ga. App. 790 (2), supra.
2. This court has held in similar situations, that a proprietor does not breach the duty owed children invitees upon his premises, in leaving gasoline accessible to them. Sewell v. City of Atlanta, 45 Ga. App. 166 ( 164 S.E. 70); Hornsby v. Henry, 68 Ga. App. 171 ( 22 S.E.2d 326). The rationale of the holding is that the presence of gasoline on premises, in the absence of an agency capable of igniting the fluid, does not create a dangerous situation.
3. In the instant case, there was no danger of the gasoline exploding until it was touched off by the match procured by the small plaintiff from the defendant father's home. The fault of the father defendant as a factor in the boy obtaining the match was essential and necessary to impute liability to him for the explosion that injured the plaintiff. The petition did not reveal the circumstances in which the infant plaintiff came into possession of the match, or that it was made available to the child through the wrongful act or negligence of either of the defendants, or by a person whose negligence was imputable to them. Thus the reticence of the pleader deprived the court of information essential in deciding whether either of the defendants was in any way connected with or in any sense responsible for the child coming into possession of the match that triggered the explosion. In this behalf the petition merely related that the plaintiff "went into the house of said William L. Baird where he was permitted to get matches."
Under this rule when a pleading is considered on demurrer, if inferences unfavorable to the rights of the party claiming rights may be fairly drawn from the allegations of the petition, this must be done. Krueger v. McDougald, 148 Ga. 429 ( 96 S.E. 867); Hardin v. Baynes, 198 Ga. 683 ( 32 S.E.2d 384); Toler v. Goodin, 200 Ga. 527 ( 37 S.E.2d 609). This rule requires that in such a case pleadings be construed in the light of their omissions as well as their averments. Toney v. Ledford, 184 Ga. 856 ( 193 S.E. 761); Mackler v. Lahman, 196 Ga. 535 ( 27 S.E.2d 35); Toler v. Goodin, supra. Failure to allege the essential facts by allegations that fall short of the essential facts must be construed to mean the absence of such essential facts. Harrell v. Burch, 195 Ga. 96, 98 ( 23 S.E.2d 434); Hulsey v. Interstate Life c. Ins. Co., 207 Ga. 167 ( 60 S.E.2d 353).
"It is true that a petition, when considered on general demurrer, must be construed most strongly against the pleader, and that in applying this rule the petition should be construed in the light of its omissions as well as its averments." Toler v. Goodin, 200 Ga. 527, 534, supra.
4. It is true the petition contained a general allegation. "In said defendants making available to said Andrew D. Henderson, Jr., matches, permitting him to get said matches and then leaving him unattended, after having invited him to come upon the premises of said William L. Baird, after having created and instilled in his mind the idea of burning a frog with matches and gasoline, after having provided him with a frog to burn, after having placed intentionally or through neglect a five-gallon can with a gallon and half of gasoline therein in the area provided for him to play, all of which said defendants knew, or should have known, created an unsafe and dangerous place and situation for said Andrew D. Henderson, Jr."
A general allegation of negligence is sufficient against a general demurrer. "In the absence of allegations that make it affirmatively appear that the plaintiffs' losses were caused by their own negligence, simple allegations of negligence are sufficient as against general demurrer (see Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (1), 50 S.E. 974; and Whitsett v. Hester Bowman Enterprises, 94 Ga. App. 78, 83, 93 S.E.2d 788)." Southern Roadbuilders v. Associated Petroleum Carriers, 95 Ga. App. 263, 265 ( 97 S.E.2d 629).
"Where a petition states the facts upon which the claim of negligence is based, a general allegation in the petition, following a statement of facts relied upon to show negligence, will be construed to have reference to the particular facts pleaded; and, so construed, it is not subject to special demurrer." Fuller v. Inman, 10 Ga. App. 680 (4) ( 74 S.E. 287).
"It is the general rule that the allegations of a petition, when attacked by appropriate demurrer, be construed most strongly against the pleader. So, where general allegations setting up negligence are followed or preceded by specific detailed averments, the general ordinarily must yield to the specific averments. Baggett v. Edwards, 126 Ga. 463 ( 55 S.E. 250); Palmer Brick Co. v. Chenall, 119 Ga. 837, 844 ( 47 S.E. 329); McClure Ten Cent Co. v. Humphries, 29 Ga. App. 524 (1) ( 116 S.E. 54); Doyal v. Russell, 183 Ga. 518 ( 189 S.E. 32); Green v. Perryman, 186 Ga. 239 ( 197 S.E. 880); Wood v. Pynetree Paper Co., 29 Ga. App. 81 ( 114 S.E. 83)." Carter v. Callaway, 87 Ga. App. 754, 761 ( 75 S.E.2d 187).
Judgment affirmed. Felton, C. J., and Nichols, J., concur.