24 S.E.2d 810 | Ga. Ct. App. | 1943
In an action for damages caused by burns to the plaintiff's head, alleged to have been the result of the negligence of the defendant, the operator of a beauty shop, through the improper and careless application and operation by his servants of an electric permanent-wave machine, whereby the scalp of the plaintiff, who was receiving a permanent wave through the application and operation of the machine, was burned by *103 steam or hot fluid escaping from the machine, it was error for the court to charge the jury that the plaintiff claimed that she was injured as a result of the permanent-wave machine failing to perform correctly "through either a defect on the part of the apparatus or negligence on the part of the" servants of the defendant, where no such contention was made by the plaintiff under the pleadings or the evidence.
The plaintiff alleged that the defendant was negligent, through his servants who operated the machine, (1) in failing to properly wrap and fit the coils of the machine to the plaintiff's head; (2) in failing to properly encase these coils to prevent heated fluid and steam therefrom from escaping and burning the plaintiff's scalp; (3) in failing to properly encase such coils to prevent the heat from escaping and burning the plaintiff's scalp, and in failing and refusing to cut the machine off when the plaintiff complained that her scalp was being burned. On the trial evidence was introduced to the effect that while the plaintiff was being given a permanent wave, and this machine was fastened over her head, she felt that her head was being burned; that she thereupon promptly complained three times to the operators who were giving her the permanent wave, and told them to disconnect the machine, as her head was being burned; that these servants refused to do as requested, but instead used a cooler or blower for the purpose of reducing the heat; and that his was not successful, because either steam or hot liquid was escaping from the coils of the machine on to the plaintiff's head, and on the removal of the blower the burning recommended. There was also evidence that this machine was of a kind *104 that if it was properly adjusted to a person's head, steam or heating fluid would not escape therefrom and burn the head of the person; and evidence which authorized a finding that the plaintiff's head was burned through the improper operation of the machine by the defendant's servants. There was no evidence that the machine itself was defective, and no evidence from which an inference to that effect could be properly drawn. The plaintiff did not charge that the machine itself was defective in any manner, as the result of which she was injured. However, the trial court gave to the jury the following charge: "The plaintiff contends, that she entered the business establishment of the defendant to have a permanent-wave service on her hair; that she was accepted as a customer by the Ergle Barber and Beauty Shoppe and S. R. Ergle; that they applied certain apparatus to her hair and head in a negligent manner; and that the apparatus failed to perform correctly, through either a defect on the part of the apparatus or negligence on the part of the operator, that caused her head to receive a severe burn, from which she has suffered physical pain and suffering and has been put to an expense for certain medical attention." The defendant contends that this charge was error, because there was no contention by the plaintiff, either in her petition or under the evidence, that the machine was defective and that her injuries were caused by a defect in the machine, but that the theory of the plaintiff's case was that the defendant's servants were negligent in the manner in which they applied this machine to her head, in the manner in which they operated the machine, and in refusing to turn the machine off when it commenced burning the plaintiff's head and she requested them to do so; and in trying to reduce the heat from the machine by a blower or cooler.
As a general rule a charge which misstates the contentions of the prevailing party, and tends to confuse the jury as to those contentions and as to the real issues in the case, in such a manner as would permit the prevailing party to recover on a contention not made by her, necessitates the grant of a new trial. Smith v. Sherwood,
There is no merit in the contention of the defendant that the judge erred in instructing the jury to the effect that the defendant would be liable for the negligence of his servants in the operation of the machine. Such instruction did not have the effect, as contended by the defendant, of permitting the jury to find the defendant liable for "any" negligence of his servants whether in the scope of their work for the defendant or not.
A verdict for the plaintiff was not demanded as a matter of law. On account of the erroneous instruction to the jury complained of, it was error for the judge not to grant a new trial.
Judgment reversed. Sutton and Felton, JJ., concur.