58 Ga. App. 160 | Ga. Ct. App. | 1938
Lead Opinion
Mrs. Daisy Cobb hied a suit for damages against the First National Bank of Atlanta. The petition was amended by alleging negligence in count 1, and by adding count 2, in which wilful and wanton misconduct was, alleged. The defendant demurred to the petition as amended, on the ground that no cause of action was set forth; that the plaintiff was no more than a licensee, and no duty was owed to her by defendant except not to wilfully and wantonly injure her; that the petition set forth no cause of action growing out of wilful or wanton misconduct as therein alleged; and that plaintiff could have avoided the consequences of defendant’s negligence. The plaintiff amended her petition by striking count 1, and relied on count 2 in which it was alleged: that the defendant is engaged in the general business of banking; that as part of its banking business it furnishes to the general public blank promissory notes; that about 3 p. m. on August 14, 1936, plaintiff went to defendant’s bank to secure a blank promissory note; that the executive office and the business office of the bank are separated from each other by a gate; that after
“A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification.” Code, § 105-402. “The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee. Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490, 492 (118 S. E. 697); Hyde v. A. & W. P. R. Co., 47 Ga. App. 139 (169 S. E. 854).” Cook v. Southern Railway Co., 53 Ga. App. 723, 725 (187 S. E. 274). The plaintiff in the present case was a licensee. The petition shows that she went into the bank to obtain a blank promissory note for her own personal use, disconnected with any business for or with the bank; and no mutuality of interest between the plaintiff and the bank was shown.
But the owner of premises owes to a licensee a duty not to wantonly and wilfully injure him. “In the case of a licensee ‘there is a slightly higher duty on the part of the owner or proprietor of the premises. He must not wantonly and wilfully injure the licensee; and since his presence as m result of his license is at all times probable, some caret must be taken to anticipate his presence, and ordinary care and diligence must be used to prevent in
Under the allegations of the petition it must be assumed that the banking room was well lighted, and that the bars at the top and bottom of the gate were plainly visible to the plaintiff. In these circumstances it was not incumbent on the defendant to have said anything to the plaintiff when she started to go through the gate, although it did call her attention to the bar at the top of the gate. In doing so the defendant was exercising a higher degree of care towards the plaintiff than the law required. The expression, "Keep your eye on the bar above your head,” amounted to
The court properly sustained the general demurrer to the petition.
Judgment affirmed.
Dissenting Opinion
dissenting. Conceding that the plaintiff was a licensee only, and that the defendant owed her only the duty to refrain from wilfully and wantonly injuring her, it was wilful or wanton on the part of the defendant to fail to exercise ordinary care to prevent injuring the plaintiff where her presence on the defendant’s premises was known to the defendant and the defendant directed the plaintiff to proceed along the path along which she was going when she was injured. Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490 (118 S. E. 697). See also Atlantic Coast-Line Railroad v. Heath, 57 Ga. App. 763 (196 S. E. 125). The plaintiff was not negligent as a matter of law in not seeing the impediment on the floor in the gateway, notwithstanding there was a patent defect, when her attention at the time was directed