ARGUED JANUARY 4, 1967.
DECIDED APRIL 4, 1967. REHEARING DENIED MAY 2, 1967.
Action for damages. Fulton Superior Court. Before Judge Moore.
Reinhardt, Ireland, Whitley Sims, Glenn Whitley, Jones, Bird Howell, Earle B. May, Jr., for appellant.
Gambrell, Harlan, Russell Moye, Charles A. Moye, Jr., David A. Handley, Greene, Neely, Buckley DeRieux, Burt DeRieux, C. Richard McQueen, for appellees.
1. The notice of appeal being filed within thirty days after entry of a judgment sustaining a general demurrer to the petition, the appeal is not premature.
2. A building contractor in possession and control of building premises is bound to take reasonable measures to protect persons on the premises by his invitation from injuries likely to arise from hidden defects in construction or places of unusual danger about the building, including a poorly lit, obscure elevator shaft.
3. Allegations that the plaintiff, a retail hardware supplier, delivered building materials and supplies at a construction site as requested and thereafter was injured inside the building under construction, where he went for the purpose of locating the general contractor's superintendent and reporting the delivery and taking new orders as he had done on several previous occasions, present an issue of fact whether the plaintiff was an invitee of the contractor in possession and control of the building premises.
4. The allegations show that the plaintiff was a licensee as to a subcontractor responsible for the installation and operation of the elevators in the building and working on the elevators in the elevator shaft.
ARGUED JANUARY 4, 1967 — DECIDED APRIL 4, 1967 — REHEARING DENIED MAY 2, 1967 — CERT. APPLIED FOR.
The plaintiff brought this negligence action against the general contractor and one of the subcontractors engaged in building a hospital. The petition alleged that when the incidents recited occurred the defendants were in possession and control and management of the building premises and that the subcontractor had charge of and was responsible for the installation and operation of the elevators in the building and was working on the elevators in the elevator shaft. The petition contained substantially the following allegations. The three-story building was equipped with an elevator which operated in a shaft extending vertically from five feet below the level of the first floor to a vented chamber on the roof. The shaft was located approximately in the center of the building and was open and unprotected and there were no barriers, gates or other objects blocking access to it. There was a partition between the front entrance of the building and the shaft which greatly diminished natural light in the area around the shaft. There were under construction on the first floor many room entrances and door frames which resembled the entrances to the elevator shaft. The area of the building located at, near and around the elevator shaft was in a darkened condition and there was no artificial or electric lighting and very little natural light and the first floor near and around the elevator shaft appeared to be a dark color and resembled the appearance of the inside of the elevator shaft itself.
The plaintiff was in the retail hardware business, and went to the construction site to deliver certain materials and supplies as requested and instructed by the defendants. The plaintiff had on several occasions before the time of this incident delivered materials and supplies to the construction site and after delivery would locate the superintendent in charge of construction who gave the plaintiff orders for additional materials and supplies, for the purpose of reporting the delivery of the supplies and to take new orders. After making delivery of the material and supplies on this occasion the plaintiff went into the building through the front entrance to locate the superintendent and to report the delivery and to determine if the superintendent wanted to place a new or additional order. As the plaintiff entered the first floor from the front entrance he passed through and along various interior entrances and door frames, all of them in a rough state of construction and resembling, by virtue of the gray color of the metal used in framing the said interior entrances and door frames, the entrances to the elevator shaft, such entrances to the elevator shaft on said date being outlined by a metal frame of the approximate color, size and shape of the metal frames of the said interior entrances and door frames. As the plaintiff came upon a point in approximately the center of the building he stepped through an opening resembling in appearance the door frames which he had previously passed by and through and was suddenly and without warning violently thrown to the bottom of a deep pit, which he later learned was a part of the elevator shaft, which was approximately five feet below the level of the first floor of the said hospital building. At this time the elevators in the shaft were located at a point above the first floor level. When the elevator or elevators were removed from the first floor level as they were at the time of the incident herein referred to, the elevator shaft became, from the first floor to the bottom of the said shaft, an open, unguarded, unprotected and unlighted pit five feet in depth, there being no barricades, doors, or other obstacles present to prevent entrance into said open pit or to warn of its existence. At the time the plaintiff fell he did not know of the existence of the open elevator shaft and could not have discovered it by the exercise of ordinary care. Both of the defendants well knew the location of the elevator shaft and knew that the area near and around it was dimly lit. Both defendants also knew that the floor area surrounding the elevator shaft was approximately the same color as the inside of said elevator shaft and knew that the metal framing in and around the said elevator shaft was constructed similarly to the interior room entrances and frames on the first floor of the hospital building. Both defendants also knew the elevator shaft was unlighted, unguarded, unprotected and that no barriers or other obstacles were placed in front of the entrances to the elevator shaft and knew that the elevator or elevators had been, at the time of the fall herein referred to, removed from said first floor level and that there existed an open, unguarded and dimly lit pit or mantrap at the first floor level. The following negligence of both defendants caused the plaintiff's injuries and damages: Failing to provide at or near the elevator shaft sufficient lighting, or signs giving warning of the open, unguarded shaft, or ropes, barriers or barricades at the entrances to the shaft; removing the elevator from the first floor level without protecting persons on the premises from the danger created thereby; failing to warn the plaintiff of the described latent danger of which the defendants knew.
The plaintiff appeals from the judgments sustaining the general demurrers of both defendants.
1. Elevator Maintenance, Inc. filed a motion to dismiss the appeal on the ground that it is premature, and cited for its authority Black v. Miller, 113 Ga. App. 10 ( 147 S.E.2d 57); Luke v. Ellis, 201 Ga. 482 ( 40 S.E.2d 85); and Peyton v. Rylee, 191 Ga. 40 ( 11 S.E.2d 195).
The order in the Black case, supra, was not appealable for the reason that it did not carry a self-executing provision; that is to say, it did not provide as in the present case that in default of an amendment within the time allowed the petition should stand dismissed. See Echols v. Time Motor Sales, Inc., 111 Ga. App. 554 ( 142 S.E.2d 324); Black v. Miller, 114 Ga. App. 208 ( 150 S.E.2d 466).
The Luke case is distinguishable for the reason that it dealt with special demurrers. The Peyton case is distinguishable for the reason that it dealt with a motion for new trial. Here we have the sustaining of a general demurrer. Once a general demurrer is sustained as to the merits, the dismissal of the petition automatically follows as a matter of law and no language in the order expressly providing for dismissal is required. Blackwell v. Ramsey-Brisben Stone Co. 126 Ga. 812 ( 55 S.E. 968); Whidden v. City of Thomasville, 10 Ga. App. 194 ( 73 S.E. 45); O'Neal v. Miller, 9 Ga. App. 180 ( 70 S.E. 971). However, the result is different as to the sustaining of a special demurrer for the reason that the petition whether amended or not remains pending until an express order of dismissal. Georgia R. c. Co. v. Kelly, 150 Ga. 698 ( 105 S.E. 300). The granting of leave to amend after the sustaining of a general demurrer is nothing more than "a proposal on the part of the court to withdraw his judgment and revoke his judgment of dismissal if the petition already adjudged to be too weak was strengthened to the satisfaction of the court." Lavenden v. Haseman, 157 Ga. 275, 279 ( 121 S.E. 646). This type of order is treated as a final judgment from the date of its rendition but coupled with the right on the part of the plaintiff to bring about a re-instatement of the case by complying with the terms and conditions imposed. Waller Co. v. Clarke, 132 Ga. 830 ( 64 S.E. 1096); Pratt v. Gibson, 96 Ga. 807 ( 23 S.E. 839); Speer v. Alexander, 149 Ga. 765 ( 102 S.E. 150); Lavenden v. Haseman, supra; Simpson v. Hayes, 208 Ga. 754 ( 69 S.E.2d 567).
It is clear from the above authorities that an order sustaining a general demurrer on the merits and providing a self-executing dismissal provision is a final order. If no notice of appeal is filed beforehand, the case is not automatically dismissed until the expiration of the time allowed for amendments and an appeal within thirty days after such date is timely. See Rochester c. Leasing Corp. v. Christian, 109 Ga. App. 818, 821 ( 137 S.E.2d 518). If a notice of appeal is filed prior to the expiration of the time allowed for amendments, the appeal is not premature, because by appealing the plaintiff has elected to forego the privilege to amend afforded by the court's order. The notice of appeal was clearly filed "within 30 days" after the entry of the judgment complained of. Code Ann. § 6-803. By any pragmatic standard this appeal is from a final judgment.
The motion to dismiss is denied.
2. A building contractor in possession and control of building premises is bound to take reasonable measures to protect persons on the premises by his invitation from injuries likely to arise from hidden defects in construction or places of unusual danger about the building including a poorly-lit, obscure elevator shaft. Butler v. Lewman Co., 115 Ga. 752 ( 42 S.E. 98). In our opinion the Butler case is controlling on the question of a defendant's failure to exercise ordinary care and a plaintiff's duty to exercise ordinary care for his own safety. The Supreme Court, in reversing the sustaining of a general demurrer to the petition held that whether the plaintiff "was exercising ordinary care, and whether the contractors were, in any of the particulars alleged, guilty of negligence which brought about the injuries complained of, were questions for the determination of a jury under proper instructions from the court." P. 758. See also Columbus Grocery c. Co. v. Green, 47 Ga. App. 197 ( 170 S.E. 205); Fulton Ice c. Co. v. Pece, 29 Ga. App. 507, 520 ( 116 S.E. 57); Rothberg v. Bradley, supra; Wynne v. Southern Bell Tel. c. Co., 159 Ga. 623, 624 ( 126 S.E.2d 388); Chotas v. J. P. Allen Co., 113 Ga. App. 731 ( 149 S.E.2d 527), cert denied by Supreme Court, 113 Ga. App. 887.
3. Each party argues that it did not owe to the plaintiff a duty of ordinary care because the plaintiff was a mere licensee rather than an invitee. A person is an invitee when he enters the premises for a purpose which is connected with the business conducted on the premises. The duty to keep the premises safe for invitees extends to all portions of the premises which are included within the invitation and which it is necessary or convenient for the invitee to visit or use in the course of the business for which the invitation was extended, and to which he is allowed to go. Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 ( 116 S.E. 17). "If the invitee does not go beyond that part of the premises to which, as the situation reasonably appears to him, the invitation extends, he can not be held to have become a mere licensee because, as a matter of fact, the purposes of the invitation could have been fulfilled without going on such part of the premises." Coffer v. Bradshaw, 46 Ga. App. 143, 149 ( 167 S.E. 119).
An invitation may arise from known customary use, and it may be inferred from conduct or from any state of facts upon which it naturally and necessarily arises. Rothberg v. Bradley, 85 Ga. App. 477, 480 ( 69 S.E.2d 293). Such an invitation may cover the right of an invitee to be protected by ordinary care not only upon such portions of the premises as may be necessary for mere ingress and egress, but upon those parts which are necessary or incidental to the mutual business or purposes of the invitation. Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461, supra. Mutuality means that each party is lawfully interested and that there is a common interest or mutual advantage involved in the visit. Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 291 ( 30 S.E.2d 426).
The facts alleged in the present petition do not show as a matter of law that the plaintiff's entering the building and area of the elevator shaft was not in furtherance of the mutual business and interest of the plaintiff and the general contractor, or that he became a licensee of the general contractor when he stepped into the building under construction to search for the general contractor's superintendent. Sheffield Co. v. Phillips, 69 Ga. App. 41, 45 ( 24 S.E.2d 834); Smith v. Jewell Cotton Mill Co., supra, Anderson v. Cooper, 214 Ga. 164, 169 ( 104 S.E.2d 90).
And, subject to all the facts that may appear by evidence, a retail hardware supplier delivering building materials and supplies at the construction site and thereafter going into the building under construction, for the purposes of locating the general contractor's superintendent and reporting the delivery and taking new orders as he had done on several previous occasions, may be an invitee no less than the servant of a company employed by the contractor to do a particular kind of work on a building under repair, to whom as an invitee the contractor was held to owe a duty of ordinary care in the Butler case, supra.
The trial court erred in sustaining the general demurrer of Peacock Construction Company.
4. The petition shows that the subcontractor's business on the premises was the installation and operation of the elevators and that it was working on the elevators in the elevator shaft. It alleges that the plaintiff went to the building site to deliver materials as requested by the "defendants," but it does not show that the plaintiff entered the building for a purpose connected with or in furtherance of the subcontractor's alleged business or the common interest of or mutual advantage of the plaintiff and the subcontractor, or that the subcontractor knew of his presence in the building. It does not present an issue that the plaintiff when injured was an invitee of the subcontractor, expressly or by implication.
The petition does not contend that the subcontractor committed any tort against the plaintiff other than negligence. The subcontractor was subject to liability only for wilful and wanton injury to the plaintiff, who was as to the subcontractor no more than a licensee. Cook v. Southern R. Co., 53 Ga. App. 723, 724 (1) ( 187 S.E. 274); Code § 105-402.
The trial court did not err in sustaining the subcontractor's general demurrer.
Judgment for Peacock Construction Company reversed. Judgment for Elevator Maintenance, Inc., affirmed. Bell, P. J., Jordan, Eberhardt, Deen and Quillian, JJ., concur. Felton, C. J., Frankum, P. J., and Pannell, J., dissent as to jurisdiction.
If I had my way I would hold that an appeal within a time allowed for an amendment (in the absence of which a petition would stand dismissed) was a waiver of the right to file an amendment. However, I think that Supreme Court cases preclude any such result, as I think the discussion in Peyton v. Rylee, 191 Ga. 40 ( 11 S.E.2d 195) will disclose.
It seems to me that there is no difference between the sustaining of a special and general demurrer in an order which provides for the dismissal of the action in the absence of amendment within the time allowed. The sustaining of a general demurrer, without more, is a dismissal of the action which precludes its subsequent pendency in the trial court. The sustaining of a general or special demurrer providing for automatic dismissal in the absence of amendment prevents the finality of dismissal until the expiration of the time allowed for amendment in the absence thereof. Since we are bound by applicable Supreme Court decisions there is no alternative but to follow them.
Frankum, P. J., and Pannell, J., concur in the dissent.