Great Atlantic & Pacific Tea Co. v. Keltner

*7 SAMFORD, Judge. The plaintiff’s wife was an invitee in the store of defendant and, while there, was seriously injured by being struck by a rock, or other missile of a similar nature, thrown by a young man by the name of McEwen, from the sidewalk in front of the store. There is no question as to the relationship existing between the plaintiff’s wife and the defendant at the time of the injury, and if the plaintiff is entitled to recover, the amount of the recovery is not seriously controverted. Mr. Holliday was the manager of defendant’s store, and was its alter ego. Holliday and a boy, by the name of Mc-Ewen, had an altercation in the store over a personal matter, and Holliday forcibly ejected McEwen from the store on to the sidewalk. What followed as a basis for recovery against the defendant is stated ip the testimony as follows: “So, Mr. Holliday gave him a shove and kind of raised his foot like he was going to kick him, but he didn’t do it, he didn’t kick him. And so, the boy got out, and Mr. Holliday closed the door and put on the slip latch. So, the boy pushed the door, you know, and just kicked and carried on out there until he loosened the latch a little, but he didn’t get in right then. So, Mr. Holliday told a boy named Brown, I believe Henry Brown or Pete Brown, he says: T am going to let you off right now, and you go out and beat hell out of that boy,’ that is the words he used, I hate to use that language but that is what it was. I said, ‘Mr. Holliday, don’t do that; somebody will get hurt;’ I said, ‘call the law;’ he said, ‘No, I don’t want to call the law, because I don’t want to have any trouble with his parents.’ He opened the door, and the boy went out and knocked Donald down several times. Mr. Holliday opened the door to let Brown back in and while he was doing that the boy had immediately run across the street and picked up a piece of broken sidewalk and ran back and threw it at Mr. Holliday, and it just glanced his arm, just enough to bring a . little streak of blood, like a little pin scratch, and hit me. Brown hit McEwen outside three times; that was before Mr. Holliday opened the door of the store to let Brown back in. The fight took place outside at the door in just a short time. During that time Mr. Holliday was standing right inside of the door. He was looking out and it was taking place in his sight and his hearing and Brown was doing what Mr. Holliday had told him to. * * * I was looking at him and then Donald McEwen picked up something off the ground to throw. He picked 'up a piece of concrete, broken sidewalk, and threw it. It came through the door of the store just as Mr. Holliday opened the door to let Brown back in and it hit me. That blow inflicted the injury that I went to Doctor Vance to be treated for. * * * McEwen threw the rock after I asked Mr. Holliday to call the law. McEwen was right out in front of the store on the sidewalk when Mr. Holliday sent Brown out there to whip him. He was on the outside of the store then. They scuffled there between themselves at the door and then McEwen went across the street and picked up the rock, and ran back across the street and threw it in the store just as Mr. Holliday let Mr. Brown back .in, while the door was standing ajar. This was after Holliday had sent Brown out to fight him. He was in plain sight coming back across the street. The front of the grocery store was glass and you could see him approach, and Mr. Holliday was looking right at him. McEwen had the rock in his hand as he approached and he was running toward the store with the rock already up in his hand as hé approached the store. Mr. Holliday did not say anything to him as he came up brandishing that rock and he did nothing, so far as I can say, to stop him or secure the door and he did not take any step of any kind or degree whatso *8 ever to protect me then, and he did not take any step whatsoever to prevent the boy from coming in through that door with the rock. Mr. Holliday was standing out in front of the door. He did not close the door to keep McEwen from hurting him. He made no effort to keep McEwen from coming in with the rock. I saw him and Mr. Holliday saw him as he ran across the street with the rock in his hand, and the man that Holliday had sent out to fight, Brown, was coming in the door, and he took no step and made no effort, said nothing and did nothing either to protect me or to prevent the man from throwing the rock, and he would not call the police when I asked him to.” Henry Brown, a witness for the defendant, testified that: “He (McEwen) went across the street and throwed some rocks at me, I don’t know how many, several. * * * I had already opened the screen door before he started throwing rocks.” The testimony of defendant’s manager was contradictory to the testimony of plaintiff, in so far as it tended to inculpate him or the defendant, but we do not comment upon this contradiction further than to say, that if, under any phase of the testimony, the plaintiff was entitled to recover, the questions of evidence arising by reasons of these contradictions would be for the jury, and not for us to pass upon. The rulings of the lower court on the trial of the case were based upon the announcement of a rule as set out in Restatement of the Law of Torts Second Volume, § 348, as follows: “A public utility or other possessor of land who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon' the land for such a purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful acts of third persons or animals if the possessor by the exercise of reasonable care could have “(a) discovered that such acts were being done or were about to be done, and “(b) protected the members of the public by “(i) controlling the conduct of the third persons, or “(ii) giving a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive from a public utility.” We think, with due deference to the editors of the above rule, that the rule as there stated is too broad in its scope and places too great a burden upon a public utility or possessor of business premises. The defendant, as the owner and possessor of the premises where the plaintiff’s wife was an invitee at the time of the injury, was not an insurer of the person, and was under duty to the plaintiff’s wife only to use ordinary care to prevent injury to her person. 45 C.J. 680 (51). The true rule applicable to this case and the facts as hereinabove stated is: To make one answerable to an invitee for failing to furnish protection to the invitee upon his premises from the unlawful conduct of an outsider — third person- — -such an one so sought to be held, must have seen, or known, or circumstances at the time must be such as to make it reasonably appear that preventive effort was necessary to protect its invitee. Not only this, but the owner of the premises must have the present ability to furnish protection, or realizing the danger, and lacking the ability to furnish protection, if such invitee was unaware of his impending peril, he should warn the invitee of the danger, so that the latter might take steps to avoid injury. While we have no direct authority upon the question, we feel that the holdings in the cases of Connell’s Ex’rs v. Chesapeake & Ohio Ry. Co., 93 Va. 44, 24 S.E. 467, 32 L.R.A. 792, 57 Am.St.Rep. 786; Tomme v. Pullman Co. et al., 207 Ala. 511, 93 So. 462; Southern Ry. Co. v. Carter, 164 Ala. 103, 51 So. 147; Lord v. Sherer Dry Goods Co., 205 Mass. 1, 90 N.E. 1153, 27 L.R.A., N.S., 232, 137 Am.St.Rep. 420, 18 Ann. Cas. 41; declare the principles as above set out. Until the danger of the plaintiff’s wife became apparent, or the circumstances were such as the exercise of ordinary care called for some action on the part of the defendant, there can be no recovery. Great Atlantic & Pacific Tea Co. v. Cox, 51 Ga.App. 880, 181 S.E. 788. Under the rule, as above stated, the testimony for the plaintiff as herein-above set out is not sufficient to carry the burden of proof, which would authorize the plaintiff to recover. There was a plea of contributory negligence in short by consent. The facts and circumstances surrounding the accident *9 and claimed by the plaintiff to entitle him to a recovery were equally known to his wife, and if there was such danger as she claimed, apparent to the defendant, such danger was likewise apparent to the plaintiff’s wife, and there is an entire absence of evidence tending to show that she made any effort to avoid same. The rulings of the trial court on the pleadings and the evidence were not in accord with the foregoing opinion. Without discussing these rulings in detail, we hold that the trial court specifically committed error in refusing to give, at the request of defendant, the general affirmative charge, and for these errors, the judgment is reversed and the cause is remanded. Reversed and remanded.