SARNO v. HOFFMAN

The plaintiff Charles Hoffman filed an action for damages in the Superior Court of Fulton County in which he alleged that, while a paying guest of the defendants, operating as Atlanta Cabana Motor Hotel, Ltd., he took a shower in the bathroom provided for him, standing in the bathtub and manipulating the shower controls. He had completed his bath and was in the process of rinsing when the water suddenly and without warning became scalding hot; plaintiff attempted to escape its flow and in so doing fell and injured himself against the side of the tub. In addition to general allegations that the shower was unsafe for use and defendants were negligent in failing to provide him with safe and suitable facilities, plaintiff alleged: "Defendants knew, or in the exercise of ordinary care should have known, that the water was too hot and that the pressure and flow of the water was uneven . . . that the temperature of the water was too high for bathing, and the failure on the part of the defendants to repair or replace the defective plumbing apparatus when it was discovered, or would have been discovered by ordinary care and diligence, constitutes ordinary negligence . . . The defendants were further negligent . . . (d) in failing to repair or replace the defective plumbing apparatus when it was discovered, or could have been discovered by the exercise of ordinary care and diligence." A general demurrer was overruled and the defendants except.

HALL, Judge.

1. Where the facts show a relationship, such as that between innkeeper and guest, from which a duty to know the conditions of the premises and facilities arises, then a general averment that the defendant knew or should have known of the defects from which injury resulted is sufficient. Hillinghorst v. Heart of Atlanta Motel, 104 Ga. App. 731 (1) ( 122 S.E.2d 751). The duty of an innkeeper is to use ordinary care and diligence to furnish the guest with reasonably safe accommodations. Hotel Richmond v. Wilkinson, 73 Ga. App. 36 ( 35 S.E.2d 536). This duty extends to appliances, and where it is shown that because of a defect in the plumbing or shower fixtures a guest is scalded by hot water, or is injured while attempting to escape from a jet of hot water due to such defect, actionable negligence may be predicated on such facts. Ferguson Residence Club, Inc. v. Farnum, 110 N.Y.S.2d 67; Wallace v. Speier, 60 Cal.App.2d 387 ( 140 P.2d 900). The theory that a presumption of negligence arises against an innkeeper on a mere showing that a guest was injured on his premises, even when the circumstances are such as to require extraordinary rather than ordinary care on the part of the defendant, seems to be negatived in Bullard v. Rolader, 152 Ga. 369 ( 110 S.E. 16). Such a presumption would seem to be no more than to apply the doctrine of res ipsa loquitur to pleadings, which cannot be done. Fulton Ice c. Co. v. Pece, 29 Ga. App. 507 ( 116 S.E. 57). A plaintiff is required to set out his cause of action plainly, fully and distinctly. Code § 81-101. As against special demurrer this petition would undoubtedly be defective; it does not appear how the plumbing was defective or in what way the defect was related to its consequences, but the general allegation is sufficient to meet the general demurrer. Atlanta, B. A. R. Co. v. Whitehead, 31 Ga. App. 89 ( 119 S.E. 539); Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (1) ( 50 S.E. 974). "All that a plaintiff need allege to withstand the attack of a general demurrer is the factum of the duty, . . . a violation of that duty, and damages resulting from that violation." Vickers v. Georgia Power Co., 79 Ga. App. 456, 458 ( 54 S.E.2d 152); Atlanta Paper Co. v. Sigmon, 82 Ga. App. 730, 734 ( 62 S.E.2d 363).

2. The defendant contends that the petition is defective in that it fails to show a causal connection between the defendants' negligence and the plaintiff's injury. While on general demurrer the petition must be strictly construed against the pleader, "Pleadings are to be given a reasonable intendment, and a strained and unnatural construction will not be given them in order to raise an inference against the pleader." National Fire Ins. Co. v. Banister, 104 Ga. App. 13 (1) ( 121 S.E.2d 46); Southern Bonded Warehouse Co. v. Roadway Exp., Inc., 104 Ga. App. 458 (1) ( 122 S.E.2d 147); Friedsam v. Sawan, Inc., 103 Ga. App. 500, 503 ( 119 S.E.2d 707); Raines v. Jones, 96 Ga. App. 412, 414 ( 100 S.E.2d 157); Belk-Gallant Co. v. Cordell, 107 Ga. App. 785, 787 ( 131 S.E.2d 575); New Cigar Co. v. Broken Spur, Inc., 103 Ga. App. 395, 398 ( 119 S.E.2d 133); Georgia Power Co. v. Leonard, 187 Ga. 608, 614 ( 1 S.E.2d 579).

The following allegations implicitly if not explicitly state the issue that injury and damage to the plaintiff resulted from the defendant's negligence. While the plaintiff was using the bath facilities of Room 541 the water became hot and scalding, causing the plaintiff to jump, slip, and fall, and to be permanently injured and disfigured, and to be hospitalized for his injuries. The plaintiff incurred hospital and other expenses because of the defendant's negligence. The defendants knew or should have known that the water temperature was too high for bathing, that the pressure and flow of the water was uneven, and that the bathing facilities were not safe, and failed to repair the defective plumbing apparatus. The defendant was negligent in failing to repair or replace the defective plumbing apparatus, in failing to provide the plaintiff with safe facilities, and in failing to warn the plaintiff of the unsafe condition of the bathroom facilities in Room 541.

Other causes from which the injury might have arisen may be proved to defeat the plaintiff's action, but the facts alleged in the petition do not indisputably show the injuries resulted from other causes. Only when this appears affirmatively from the petition can a general demurrer be sustained. Rome R. c. Co. v. King, 30 Ga. App. 231, 232 ( 117 S.E. 464); Rome R. c. Co. v. Jones, 33 Ga. App. 617, 618 ( 127 S.E. 786); Pollard v. Heard, 53 Ga. App. 623, 626 ( 186 S.E. 894); Southern Road Builders, Inc. v. Associated Petroleum Carriers, 95 Ga. App. 263, 265 ( 97 S.E.2d 629); Whitsett v. Hester-Bowman Enterprises, Inc., 94 Ga. App. 78 ( 93 S.E.2d 788); Martin v. McAfee Co., 31 Ga. App. 690, 691 ( 122 S.E. 71); Wilson v. Ray, 64 Ga. App. 540, 543 ( 13 S.E.2d 848).

The failure to use the magic words "proximate cause" or "direct result" in alleging the causal connection between the defendant's negligence and the plaintiff's injury is subject to special demurrer but not to general demurrer. Atlanta B. A. R. Co. v. Whitehead, 31 Ga. App. 89, supra; Wright Contracting Co. v. Davis, 90 Ga. App. 548, 552-553 ( 83 S.E.2d 232). "It is only where it clearly appears from the petition that the negligence charged against the defendant was not the proximate and effective cause of the injury that the court may upon general demurrer, as a matter of law, so determine." Martin v. McAfee Co., 31 Ga. App. 690, 695, supra. (Emphasis supplied). Wilson v. Ray, 64 Ga. App. 540, 543, supra.

We recently held in Thomas v. Barnett, 107 Ga. App. 717, 721 ( 131 S.E.2d 818): "If the petition was deficient on account of its failure to allege in exact terms that the negligence charged to the defendant Thomas, Jr., was the proximate cause, or a contributing cause, of the plaintiff's injuries, this defect was one of form only. . . This deficiency, if it was such, being one of form only, could have been reached only by a special demurrer pointing out specifically wherein the petition was deficient." Accord Allen v. Gornto, 100 Ga. App. 744, 746 ( 112 S.E.2d 368).

The logical answer to the defendant's contention that "changes in water temperature can occur without negligence on their part" is proof to this effect submitted to the jury to refute the plaintiff's contention that it occurred because of the defendants' negligence as alleged.

The trial court did not err in overruling the general demurrer to the petition.

Judgment affirmed. Felton, C. J., Bell, P. J., Frankum, Jordan and Eberhardt, JJ., concur. Nichols, P. J., Russell and Pannell, JJ., dissent.