2 Ga. App. 607 | Ga. Ct. App. | 1907
(After stating the foregoing facts.)
In the case of persons on the premises by invitation of the owner or proprietor, a higher degree of care is demanded. “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.”/ Civil Code, § 3824. The definition of the word “invitation,” as given in leading eases, shows why this should be so. We quote from Sweeny v. Old Colony R. Co., 92 Mass. (10 Allen) 373 (87 Am. Dec. 644): “The general rule or principle applicable to this class of cases is, that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any invitation, allurement or inducement, either express or implied, by which they have been led to enter thereon, y A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner, or one in possession, to provide against the danger of accident. The gist of the liability consists in the fact that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such use was not only acquiesced in by the o-vimer or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used. The true distinction is this: A mere passive acquiescence by the owner or occupier in a certain use of his land by others involves no liability; but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use; and for a breach of this obligation he is liable in damages to a person injured thereby.”
/The fourth class we shall not take up in detail; but it consists of those cases wherein, by reason of contract, public policy, or
The plaintiff in error asserts that young Dale was within the second class mentioned above, — was a bare licensee.; the defendant in error says that he was within the third class, was upon the premises of the mill company by invitation. If the petition had not been amended, the contention of the plaintiff in error would have been well founded. But taking the unequivocal statement of the amendment, “that the said Roy Dale was invited by defendant, through its agent and employee, Sank Lovvorn, who had authority so to do, to visit his father while at work in said mill, at any time, on business,” coupled with the further allegation, that with the full knowledge and consent of the defendant company he did, upon the day of the fatal injury, enter upon the premises of the defendant to visit his father on business, we are constrained to hold, under the admission of the demurrer, that he was not a bare licensee, but was a person lawfully upon the defendant’s premises by invitation. As to this feature of the case the general demurrer was therefore properly overruled.
The question of the failure of the boy that was killed to use ordinary care to protect himself is also a jury question, not to be decided on demurrer. The jury may take the fact of his previous.
Usually any date may be alleged, due regard being had for the statute of limitations, where applicable; for in ordinary cases the pleader will not be confined to the actual day named; but some specific time must be averred. Direction is therefore given that the trial court require the plaintiff to amend accordingly, and that in default thereof the petition he dismissed.
Judgment affirmed, with direction.