Edwards v. Lassiter , 67 Ga. App. 368 ( 1942 )

1. The word "owner" as used in the Code, § 105-401, which provides that "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," is not synonymous with "landlord," as the latter word is used in § 61-112, which provides that "The landlord, having fully parted with possession and right of possession, is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; but he is responsible to others for damages arising from defective construction or for damages from failure to keep the premises in repair;" and where the owner of land has fully parted with both possession and right of possession by any lawful contract of rental, his liabilities are those prescribed by § 61-112, and § 105-401 is without application.

2. The petition, properly construed, is one in which the plaintiff seeks damages for fatal injuries sustained by her minor son by reason of the alleged negligent use of the rented premises by the tenant through its servant and agent in placing hot boiling tar in a hole or depression in the concrete surface or approaches of the premises, and not properly protecting an invitee against danger therefrom, in consequence of which the son, in slipping on the approaches, fell into the hot boiling tar and was fatally burned. The defendant landlord having parted with possession and right of possession of the premises, as shown by the petition, no cause of action was set forth against her, and the court did not err in sustaining the general demurrer and in dismissing the action as to her.

3. While a demurrer to an original petition does not cover the petition after it has been materially amended, and if still relied on it should be renewed or insisted on after the amendment has been allowed, still where an amendment does not in any material or substantial particular change the merits of the petition as adjudicated by the ruling on the original demurrer, no reversal of the judgment is required merely because the court did not take into consideration the immaterial amendment. The fact that the amendment in the present case, which added nothing to the cause of action sought to be asserted in the original petition, was allowed and filed before the court ruled on the demurrer, is of no consequence.

DECIDED MAY 19, 1942. STATEMENT OF FACTS BY SUTTON, J. Mrs. Lillie Mae Edwards brought suit against Mrs. Charles P. Lassiter, George A. DeLay and Gulf Oil Corporation, the petition alleging as follows: The plaintiff is the mother of Raymond Eugene Edwards, a minor child of three years of age at the time of his death on July 27, 1940, as the direct and proximate result of injuries inflicted upon him by the defendants as hereinafter set forth. Mrs. Lassiter was the owner of described real estate at the southwest corner of Central and Washington streets in the town of East Point, Fulton County, Georgia, the same being improved property and having thereon a Gulf service station, the defendant having owned the said property prior to January 10, 1938, and continuously since November 10, 1939, to the date of the filing of the plaintiff's petition. On January 22, 1938, there was constructed by the defendant on the said property a small one-story building of the customary type for use by the operator of a small automobile service station. It was used to house the cash register which held the currency and money obtained from sales made at the service station of gas, oil, lubricants, etc. and it was also the office of the operator of the station which contained concrete drive-ways, underground tanks for gasoline, gasoline pumps, and other improvements. Mrs. Lassiter leased the said premises to the defendant Gulf Oil Corporation for a period of one year, effective September 15, 1939, together with all the driveways and street-front privileges and all improvements and buildings situated thereon or to be erected thereon, the said lease being for the purpose of the sale and storage thereon of gasoline and petroleum products, and with an option to the corporation for the conduct of any other lawful business thereon. It also provided that the corporation might make such additions, alterations, replacements, and improvements upon the buildings and equipment on the premises as seemed to it to be best in the conduct of its business or the use of the premises, such alterations and improvements to be made at the expense of the corporation.

The defendant Gulf Oil Corporation, on January 22, 1938, installed George A. DeLay as the operator of its service station on the premises for a period of one year and from month to month until his services were terminated by either party upon ten days written notice. DeLay had been operating the service station continuously from January 22, 1938, for the said defendant corporation, under the said agreement, until and including November 10, 1939, and at the time the plaintiff's said minor child was fatally injured as hereinafter alleged. The defendant corporation, in its agreement with DeLay, provided that he could make no alterations, additions, or changes in the improvements on the premises without its written consent. The defendant corporation maintained and exercised full and final control over the operation of the service station by DeLay and limited all sales thereon to its products, and maintained and exercised the right and power to discharge him as its employee and remove him from the premises at any time it desired. Mrs. Lassiter owned the real estate adjacent to and directly in the rear of the service station, and upon it was located a small building in which a general retail merchandise store was operated, and where candy, groceries, etc. were sold. This store faced the sidewalk on Washington Street at the intersection of Central Avenue and the customary approach thereto was through the service station. The sidewalks on the two streets were sloped as approaches to the service station and persons using the sidewalks were forced to walk upon the said approaches to the service station, and persons going to the little store adjoining the service station from the east or south were likewise forced to use the said approaches.

The surface of the service station was of concrete which was cheap, defective, and of low grade, and was mixed and applied in a very cheap and defective manner. The concrete was thin, weak, and flimsy, and not strong enough to support the motor traffic invited into and using the service station. There was a hole or depression in the concrete surface of the service station and on the south side thereof, several inches deep and several feet in width and length. DeLay, in maintaining the service station and in selling at retail soft drinks, invited the public to come into the service station and to use the approaches and services thereof as invitees. The Gulf Oil Corporation installed and employed him to operate the service station as its agent and servant and to sell at retail the said products as its servant and agent. Mrs. Lassiter rented the premises for the purpose of being used as a retail service station and for the retail sale of soft drinks, candies, groceries, etc. and knew that all of these things were being done and they were being done with her full knowledge and consent. The depression or hole had existed continuously for a period of several months immediately prior to November 10, 1939, when the plaintiff's minor child was fatally injured as hereinafter set out. The depression or hole resulted from a sinking of the concrete under motor vehicles patronizing and using the service station and buying gasoline and oil therein. All of the defendants knew it existed and they had known it for a period of months before the date of the injury. At least one of the corporation's agents was in the service station every day and saw the condition for months before November 10, 1939. The depression or hole resulted from the defective construction, material, and workmanship as set forth above, and continued for the said period of several months in its dangerous condition by reason of the failure and neglect of the defendants to repair the same.

DeLay, on November 10, 1939, put ashes in the hole and then poured boiling hot tar on top of the ashes. The defendant corporation controlled the service station at that time, and DeLay, as the operator of the service station, was acting as the agent of the corporation, his employer, within the scope of his employment, in the business of the corporation, and with its full knowledge and consent. The corporation had full and direct control over the service station and its operator DeLay as to the manner in which it was maintained and operated at the said time and place. The plaintiff's said minor son and his two older brothers and his aunt had gone to the store at the service station to buy some candy about 9.30 a. m. and then started back home. A car was parked across the sidewalk by the service station of the defendants at the said time and place and the plaintiff's said minor child was therefore forced to walk out in the street or through the service station, and went through the service station rather than go out in the street which was heavily traveled by motor traffic. When he reached a point a little more than half way through the service station his oldest brother slipped and his aunt grabbed him. At the same time Raymond Eugene also slipped and fell into the hole in the service station which had just been filled with boiling tar and ashes, it having in it about three gallons or more of boiling hot tar. The fall into the boiling tar caused described fatal injuries to the said minor child and he died on July 237, 1940, as the direct and proximate result of the said injuries.

The petition alleged that the plaintiff was partly dependent upon the said child and that it rendered described services and contributed to her support, and that its death was the direct and proximate result of the negligence of the defendants in the following particulars: (a) In that there was no warning placed around, upon, or against the boiling tar in the service station. (b) There was no cover placed over or protection around or about the boiling hot tar to protect the child from fatal injuries thereby. (c) The child was not given any warning of the presence of the depression and boiling hot tar therein or of their danger to him. (d) The defendants did not afford the child any protection or warning of any kind concerning the hole and boiling hot tar therein. (e) The defendants had blocked the sidewalk with the automobile so that the child could not walk along the sidewalk on its way home, thus making it necessary for him to go through the service station where the dangerous depression and boiling hot tar were located. (f) The surface of the service station around the hole and boiling hot tar was in a slippery and dangerous condition so the child was caused to slip and fall into the boiling hot tar. (g) The defendants placed, or allowed to be placed, the boiling hot tar in the hole in the service station without any protection, cover, or warning, when they knew or could have known by the exercise of ordinary care that their so doing would result in serious or fatal injuries to the child or other pedestrians or customers. (h) The defendants failed to render the child any assistance whatever when he slipped and fell into the boiling hot tar. (i) The surface of the service station was of defective construction, workmanship, and material, as pointed out herein, particularly in that the concrete was of such defective material and was so poorly mixed and applied that it was weak and flimsy and would not stand up under normal use by motor vehicles patronizing the service station and collapsed there-under and remained in such condition for several months previously to the fatal injuries of the child. (j) The defendants had not maintained, and were not maintaining, the service station and approaches and walks thereto and therein in a reasonably safe condition as required by law. (k) The hole and ashes and boiling tar therein constituted a dangerous menace and trap to the child or any person on said premises. (l) The defendants failed to keep the premises in repair, particularly in that the hole and ashes and boiling tar therein constituted a dangerous menace and trap to the child, as well as to others on said premises. (m) The defendants failed to keep the premises in repair, in that the deep, wide, and dangerous hole in the service station was allowed to remain therein for a period of several months before the time the child was fatally injured, without any effort being made to repair the same, and when the repairs were attempted they were done in a grossly negligent manner, placing the ashes and boiling tar therein as a menace and trap to the child and others on the premises. (n) The defendants were grossly negligent in the defective construction, consisting of the ashes and boiling hot tar placed in the hole immediately before the time the child was fatally injured thereby. (o) The defendants were grossly negligent in their efforts to repair the dangerous hole by placing ashes and boiling hot tar therein without warning or protection to the child. (p) The defendants were grossly negligent in constructing, as well as keeping, the premises in repair, in that they were using articles consisting of ashes and boiling hot tar for repairing the dangerous hole, when such articles were not fit or suitable for such purposes.

The petition further alleged that the tar was purchased by Mrs. Lassiter and furnished by her to DeLay. The tar was heated by DeLay to boiling temperature and put in the hole with the ashes as the agent and servant of both Mrs. Lassiter and the defendant corporation, within the scope of his employment, and with their knowledge and consent and in their business. Mrs. Lassiter and the corporation were also negligent in that they failed to furnish DeLay with suitable and proper materials for repairing the dangerous hole and in failing to instruct him not to use boiling tar and ashes for the purpose of repairing the condition, and in failing to prevent him from using such dangerous and improper materials for remedying the dangerous condition. All of the defendants knew that the premises were being used as a retail service station and store, and that the general public were being continuously invited to use the service station and approaches, including the place where the boiling tar and ashes were placed, as invitees of the service station and store, and yet failed in the particulars herein set out to keep the premises in reasonably safe repair or free from defective construction and especially in the particulars pointed out. The corporation, through its agents, inspected from time to time and on the average of daily the premises in question and saw the defects in the construction specified and yet failed to correct, remedy, or repair them. Mrs. Lassiter inspected the premises from time to time immediately before November 10, 1939, the date of the injury, during the several months the dangerous defects in construction were perfectly apparent, and which she saw, and yet failed to repair or remedy them. The hole, ashes, and boiling tar therein constituted a serious and dangerous menace to the public, as well as a hidden peril to the public, and especially to the plaintiff's minor child on the date he was injured. Mrs. Lassiter and the corporation were notified from time to time by DeLay of the defective construction and need of repairs of the premises over a period of months immediately preceding the time and date the child was fatally injured, and yet both failed to make or have made the necessary repairs or to remedy the said defective construction. The negligence of the defendants as set forth herein combined naturally and directly to proximately cause the death of her minor child, and they are individually, severally, and jointly liable to the plaintiff for their said acts of negligence and the damages resulting therefrom as set forth in the petition. Judgment was prayed for in the sum of $50,000.

The defendant, Mrs. Lassiter, filed a general demurrer on the ground that no cause of action was set forth against her.

The plaintiff amended her petition by alleging: All three of the defendants knew that the concrete surface of the service station was defective in the particulars alleged in the original petition during all the times referred to therein and in the amendment. All three knew that the defective construction of the concrete surface of the service station, especially that part of it which had been broken through and depressed and caused to form a dangerous hole, as described in the original petition, constituted a dangerous menace and trap to the public and invitees passing the service station, as well as through and about the same, and yet each and all of them failed to repair or remedy the same and to give any warning or notice of it or to place any protection around, about, or over it. The tar which was heated and boiled and poured into the hole by DeLay was furnished by Mrs. Lassiter for said purpose and for repairing the premises, with the full knowledge and consent of the defendant corporation, all of the defendants knowing the serious danger, menace, and trap caused thereby, and of the injuries and damages which would necessarily result therefrom, and yet each of them failed to do anything to prevent the said use of the tar or to prevent the creation of the dangerous menace and trap. The defendant corporation made no protest or any effort whatever to stop or alleviate any of the acts of negligence of DeLay and Mrs. Lassiter or any of its agents in any of the particulars alleged in the original petition. The defendant corporation made no effort to repair, remedy, or correct the dangerous menace and trap consisting of the defective and depressed concrete surface of the service station, dangerous hole and boiling tar poured therein after the same had been created, and gave no warning or notice about it or placed any protection around or about it. The defendants were negligent in the particulars set forth in the amendment, in addition to those contained in the original petition.

The court sustained the demurrer to the petition, and dismissed the action as to Mrs. Lassiter. The plaintiff excepted. While the petition alleges knowledge on the part of the defendant landlord of a defective condition of the concrete surface of the service station, and general allegations are made as to the injuries of the plaintiff's minor son being brought about by such defective construction, the petition properly construed is one which specifically shows that the child's death resulted from its contact with boiling tar which had been placed in a hole or depression in the concrete surface. "The fall into the boiling tar caused" described burns "to the said minor child, and he died on July 27, 1940, as the direct and proximate result of said injuries," there being no mention in the petition of any injury which was occasioned otherwise than from burning. In other words, the death of the child was brought about from being burned by boiling tar. The gist of the complaint is the alleged negligence of the defendants in not keeping safe the approaches of the service station, with the result that the child, in stepping into or being caused to fall into the boiling tar, was fatally burned.

Mrs. Lassiter, the landlord, owned the property, and leased it to the Gulf Oil Corporation. It placed in charge as its agent the defendant DeLay, and "maintained and exercised full and final control over the operation of the service station by DeLay." It "installed and employed him to operate the service station as its agent and servant," and "the defendant corporation controlled the service station" at the time the child was injured and "DeLay as the operator of the service station was acting as the agent of the corporation, his employer, within the scope of his employment in the business of the corporation and with its full knowledge and consent." The corporation had full and direct control over the service station and its operator, DeLay, as to the manner in which it was maintained and operated at the said time and place. So, notwithstanding the allegations that Mrs. Lassiter knew of the existence of the hole or depression in the concrete surface and furnished the tar to DeLay, and that "the tar was heated by DeLay to boiling temperature and put in the hole with the ashes as the agent and servant of both Mrs. Lassiter and the defendant corporation, within the scope of his employment and with their knowledge and consent and in their business," the inconsistent allegation that "DeLay, on November 10, 1939, put ashes in the hole and then poured boiling hot tar on top of the ashes," and that "the defendant corporation controlled the service station at that time and DeLay, as the operator of the service station, was acting as the agent of the corporation, his employer, within the scope of his employment, in the business of the corporation, and with its full knowledge and consent," and that it "had full and direct control over the service station and its operator, DeLay, as to the manner in which it was maintained and operated at the said time and place," require a construction of the petition most strongly against the pleader that, though Mrs. Lassiter furnished the tar, DeLay, in using it in the manner alleged, was acting solely as the agent and employee of the defendant corporation.

Mrs. Lassiter retained no qualified control of the premises and was not an "owner or occupier" in the sense used in Code § 105-401 which provides: "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." As ruled in Augusta-Aiken Railway Electric Co.,21 Ga. App. 246 (94 S.E. 252): "The word ``owner,' as used in the Civil Code (1910), § 4420 [Code of 1933, § 105-401], is not synonymous with ``landlord,' as the latter word is used in § 3694 [Code of 1933, § 61-112]; and where the owner of land has fully parted with both possession and right of possession by any lawful contract of rental, his liabilities are those prescribed by § 3694 [Code of 1933, § 61-112]. In such a case § 4420 [Code of 1933, § 105-401] is without application. It is otherwise where the possession or right of possession is not fully parted with." See also Dobbs v. Noble, 55 Ga. App. 201, 202 (2) (189 S.E. 694). The liability of a landlord who has fully parted with possession and right of possession of premises is stated in Code § 61-112 as follows: "The landlord, having fully parted with possession and right of possession, is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; but he is responsible to others for damages arising from defective construction or for damages from failure to keep the premises in repair." As stated above, the petition does not, properly construed, seek damages for defective construction or from a failure to keep the premises in repair, but seeks damages resulting from the alleged negligent use of the premises by the Gulf Oil Corporation through its alleged agent and employee, DeLay. Under the law as codified in Code § 61-112 and here applicable, Mrs. Lassiter, the landlord, having fully parted with possession and right of possession, is not responsible to the plaintiff for the negligent acts of the servant of another in the use of the leased premises. The court did not err in sustaining the general demurrer and in dismissing the action as to her.

It is contended by the plaintiff that the court erred in sustaining the demurrer for the reason that the amendment filed by her opened the petition as amended to a fresh adjudication and made it necessary that the defendant renew her demurrer to the petition as amended and that this she failed to do. While it is true that a demurrer to the original petition does not cover the petition after it has been materially amended, and if still relied on the demurrer should be renewed or insisted upon after the amendment has been allowed, as ruled in Satlof v. State,52 Ga. App. 208 (182 S.E. 864), cited by the plaintiff, still, where an amendment does not in any material or substantial particular change the merits of the petition as adjudicated by the ruling on the original demurrer, no new question is raised by the amendment and the plaintiff's case is concluded by the ruling on the original petition, and no reversal of the judgment is required merely because the court did not take into consideration the immaterial amendment. See Byrom v. Gunn, 111 Ga. 805 (35 S.E. 649); Scarborough v. Smith, 183 Ga. 386 (188 S.E. 526). The fact that the amendment in the present case had been allowed and filed before the court ruled on the demurrer to the original petition is immaterial. The amendment in the present instance added nothing to the cause of action sought to be asserted in the original petition. It merely alleged knowledge on the part of all three defendants as to the defective condition of the concrete surface, constituting a dangerous menace or trap to the public, the failure to repair, give warning or protect against danger from the boiling tar, that the tar was furnished by the landlord for the purpose of repairing the premises, and that all of the defendants knew of the serious danger, menace, or trap caused by the boiling tar being poured into the hole or depression and failed to prevent the use of the boiling tar in the creation of the menace. The furnishing of cold tar can not be said to be of itself negligence on the part of Mrs. Lassiter, and, as we have shown, the use of the tar in a heated and boiling condition was an act of the agent of another. Inasmuch as the amendment showed no negligent act which was binding upon Mrs. Lassiter, as landlord, who retained no possession or right of possession of the premises, the amendment was not as to her a material one and did not affect the controversy set out in the original petition.

Judgment affirmed. Stephens, P. J., concurs.