23 S.E.2d 189 | Ga. Ct. App. | 1942
The petition showed no negligence on the part of the defendant in keeping its theatre safe for its patrons. The court erred in not sustaining the general demurrer to the petition.
The defendant demurred to the petition on the ground that the allegations were insufficient in law and failed to set forth a cause of action, and because it affirmatively appeared from the allegations that there was no right of action against the defendant. The court overruled the demurrer and the defendant excepted.
At the time of her fall and alleged injury the plaintiff was an invitee of the defendant. "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." Code, § 105-401. Where one enters the premises of another for purposes connected with the owner's business conducted on such premises such person is an invitee, and the owner is liable in damages to him for failure to exercise ordinary care in keeping the premises safe. As stated in Tybee Amusement Co. v.Odum,
It is essential to recovery that it appear from the allegations of the petition that the defendant knew, or by the exercise of ordinary care ought to have known, of the presence on the floor of the theatre of the substance which caused the plaintiff to fall. Babcock Bros. Lumber Co. v. Johnson,
Under the allegations of the petition the fact that the defendant's servants did not conduct the plaintiff to a seat in the theatre and see that the plaintiff was safely seated did not cause her injuries. The plaintiff's injury was caused by the vomit on the floor, and before the defendant would be liable therefor it must appear that it knew, or in the exercise of ordinary care should have known, that this substance was on the floor. There is no allegation that the substance had remained on the floor for such a length of time that the defendant, through its servants in the exercise of ordinary care, should have discovered its presence.
The petition does not show any right in the plaintiff to recover. The judge erred in overruling the general demurrer.
Judgment reversed. Sutton and Felton, JJ., concur.