44 S.E.2d 685 | Ga. Ct. App. | 1947
Whether the proprietor of a public restaurant was negligent in failing to exercise ordinary care in protecting the plaintiff as a customer from an unlawful assault made upon him by another customer who was drunk, quarrelsome and arrogant, and whose condition was known to the proprietor, and where the offending customer had caused some commotion and argument before injuring the plaintiff, was a question for the jury, and the court erred in deciding it on demurrer and in dismissing the case.
The defendant filed a general demurrer to the petition upon the ground that it did not set out a cause of action, and a special demurrer to paragraph 7. The court did not pass upon the special demurrer but sustained the general demurrer and dismissed the action, and the sole exception here is to that ruling.
Since the special demurrer was not ruled on by the trial judge, and error has been assigned on the sole ground that the court erred in sustaining the general demurrer and in dismissing the action, no ruling will be made by this court on the question raised by the special demurrer although counsel for the defendant refers to it in his brief. See Thompson v. MacNeill,
In Moone v. Smith,
In Savannah Theatres Company v. Brown,
It seems to us that under the authorities cited above, and in the absence of any case we have found directly in point to the contrary, the petition here was sufficient to withstand a general demurrer. The plaintiff alleged that the unknown guest who inflicted the injuries upon him, which amounted to an assault under the allegations of the petition, was drunk when he entered the restaurant, and that he was quarrelsome and arrogant, and that this was known to the defendant who escorted the guest to a booth about six feet from where the plaintiff sat. The petition also alleged that the drunken, quarrelsome and arrogant guest, after causing some commotion and argument, committed the assault upon the plaintiff without cause or justification. To be drunk means to be under the influence of intoxicating liquors to such an extent as to have lost the normal control of one's mental and bodily faculties, and, "commonly, to evince a disposition to violence, quarrelsomeness and bestiality." Sapp v. State,
The defendant relies, so far as Georgia cases are concerned, on only one case, United Theatre Enterprises v. Carpenter,
The trial court erred in sustaining the general demurrer and in dismissing the plaintiff's petition.
Judgment reversed. Sutton, C. J., and Felton, J., concur.