Seward v. Draper

Lumpkin, P. J. An action for personal injuries was brought by Seward against Mrs. E. E. Draper and others. His petition, after having been amended, was dismissed on demurrer, and he excepted. The material portions of the petition and of the amendment thereto appear in the official report. We agree with the trial judge in holding that the petition as amended failed to set forth a cause of action. There is no distinct allegation that the defendants themselves ever invited the plaintiff to enter the building at all. In stating how he came to go into the house, he alleges that he did so at the request of one Klein, his employer, who was merely negotiating with the defendants for a lease of a room in the building [675] after the completion, of the repairs thereon which were in progress. It is not even averred that the defendants invited or expected Klein to enter the house on a tour of inspection. The allegation that Murphy was employed by the defendants to superintend the alterations which were being made is certainly insufficient to disclose that it was within the scope of his authority as an agent of the defendants to invite people into the building for any purpose. The other allegations, to the effect that the defendants had invited the plaintiff to enter the building, and that they were guilty of negligence in so doing, must be taken in connection with the facts previously set forth; and thus viewed, they amount to no more than a mere conclusion of the pleader that the preceding statements contained in the petition as to the invitation extended by Murphy showed that the defendants were bound by his acts in the premises. Aside from all this, there is nothing in the petition which amounts to an averment that the defendants ever expected that any person entering the building on a tour of inspection would undertake to make his exit .through the window described in the petition. Indeed, no facts showing that any duty rested upon the defendants of making this window a safe means of leaving the building are stated. As to this matter, the amendment merely alleges that the plaintiff considered it a part of his business to inspect the window “ as a means of exit,” and that, as a part of such inspection, he undertook “to pass through the window to the street.” It is not alleged that the defendants ever knew or had reason to expect that he would regard the doing of such things as a part of “his business” in the prosecution of which they were under an obligation to protect him from injury. The charge that they “in the exercise of reasonable care and prudence would have known same” is not supported by a recital of any facts which would warrant such a conclusion. Judgment affirmed. All the Justices concurring.