Allen v. Gornto

• Decision Date: 23 November 1959
• Docket Number: No. 37869,No. 1,37869,1
• Citation: 100 Ga.App. 744,112 S.E.2d 368
• Parties: Hugh ALLEN et al. v. L. A. GORNTO, Jr., by Next Friend,
• Court: Georgia Court of Appeals

Page 368

112 S.E.2d 368

100 Ga.App. 744

Hugh ALLEN et al. v. L. A. GORNTO, Jr., by Next Friend,

No. 37869.

Court of Appeals of Georgia, Division No. 1.

Nov. 23, 1959.

Syllabus by the Court

The right to recover damages caused by the negligence of another is sufficiently pleaded where it is alleged that the party against whom recovery is prayed failed to accord the complaining party some duty owed him, in consequence of which default, injury to his person or damage to his property was proximately caused, without affirmatively disclosing a defense debarring the recovery of damages.

Lonnie A. Gornto, Jr., by and through Lonnie A. Gornto, as next friend, filed suit against Hugh Allen and Delene Allen, on October 9, 1958 in the City Court of Waycross, seeking damages for certain described injuries sustained by the plaintiff. The petition alleged that the defendants are husband and wife, own and operate, as partners, a place of business in Ware County, Georgia, known as Allen's Motel and Restaurant; that on December 29, 1957, the defendants had exposed for sale in their place of business an assortment of various fireworks, including a variety known as Cherry Bombs, which contained explosive powder and were prepared for the purpose of producing a visible and audible effect by explosion, and which fireworks constituted a dangerous instrumentality; that the plaintiff, in company with several other boys went to the defendants' place of business for the purpose of buying fireworks; that they were waited on by Hugh Allen Jr., a fifteen year old son of the defendants; that neither or the defendants was present at the time, and the fireworks on display in the place of business were in the immediate presence of and accessible to the defendants' son; that, acting as the agent of the defendants and within the scope of his authority, the defendants' son sold a quantity of Cherry Bombs to the plaintiff; that subsequently, the plaintiff and one Donald Lott opened the Cherry Bombs purchased at the defendants' place of business and emptied the powder into a Bufferin bottle, put a hole in the cap of the bottle, put the cap on the bottle, and stuck a Cherry Bomb fuse through the hole in the cap into the bottle; that on December 31, 1957, the plaintiff attempted to explode the bomb, and the same failed to explode; that on January 1, 1959, the plaintiff again attempted to explode the bomb by lighting the fuse and the same exploded, causing the glass from the bottle to strike the plaintiff in the eye, face, hand, and leg, and as a result of the injury to the eye, the sight thereof was totally and permanently destroyed and the entire eyeball had to be removed; that the plaintiff's injuries were proximately caused by the defendants' negligence in selling the fireworks to the plaintiff in violation of the Fireworks Control Law, Code (Ann.) § 92A-802, in exposing for sale the fireworks in their place of business in violation of the Fireworks Control, Law, and in maintaining fireworks on display in their place of business and accessible to their young son, enabling him to sell the plaintiff the fireworks which caused his injuries; that the injuries to the plaintiff was a result of the defendants' wilful violation of the Fireworks Control Law as a commercial enterprise for monetary gain with a wanton disregard for the safety of children in whose hands such dangerous instrumentalities were placed.

On November 7, 1958, the defendants filed their general demurrer and certain special demurrers. The general demurrer was overruled, and in response to certain special demurrers, the plaintiff, on March 24, 1959, filed an amendment to his petition alleging the purchase of TNT Bombs as well as Cherry Bombs from the defendants; alleging the manner of construction of the bomb which the plaintiff exploded and that the bomb suddenly exploded when its fuse was lit; and adding a new paragraph to the original petition setting forth that, at the time the plaintiff exploded the bomb, he was an immature youth fifteen years old, was inexperienced in the use and handling of fireworks, had no knowledge of the inherent danger of fireworks and other explosives, did not understand and know the suddenness with which such fireworks might explode, did not know that an attempt to explode the bomb in the manner alleged constituted a danger to his person, and because of all these factors, the plaintiff was incapable of fully apprehending the danger arising from an explosion of the bomb.

On May 27, 1959, the defendants filed their general demurrer to the petition as amended, and on June 5, 1959, the court rendered judgment overruling the general demurrer to the petition as amended. The defendants have appealed such ruling to this court by a direct bill of exceptions.

Parker & McGee, Wilson & Wilson, Waycross, for plaintiffs in error.

Blount & Gibson, Clarence D. Blount, Waycross, for defendants in error.

QUILLIAN, Judge.

The question for decision is whether the petition set forth a cause of action. A petition in a negligence was alleges a right of action when it shows actionable negligence on the part of the defendant proximately caused the plaintiff to be injured and does not disclose any fact of defense precluding that plaintiff's right to recover damages.

It was negligence per se for the defendant in violation of the Fireworks Control Law embodied in Code (Ann.) § 92A-802 to sell fireworks to a minor child, under circumstances not permitted by the statute. Spires v. Goldberg, 26 Ga.App. 530, 106 S.E. 585. There was no mere omission on the defendants' part to accord to the State a duty as was the case in Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 437, 99 S.E.2d 209, but it was a deliberate infraction of a statute designed for the protection of members of the public, a class of which the plaintiff was a member.

The defendants stoutly maintain that, conceding that they were negligent, their conduct was not the proximate cause of the plaintiff's injuries. They insist that the plaintiff's manner of exploding the fireworks, especially the use of a bottle in the process, was obviously the cause of the injuries he sustained. The question turns on two legal principles. If the plaintiff's manner of exploding the fireworks was such an intervening cause as, alone and independently of the defendants' negligence, resulted in the plaintiff's injuries, the causal connection between the defendants' act in selling the fireworks and the plaintiff's injuries was severed and they were absolved of liability. Spires v. Goldberg, 26 Ga.App. 530, 106 S.E. 585, supra. Or if the defendants could not, in the exercise of ordinary care, have foreseen the disaster that did occur or that a similar one might result from their negligence in unlawfully selling the fireworks their act was not the proximate cause of the plaintiff being injured. In Milton Bradley Co. of Ga. v. Cooper, 79 Ga.App. 302, 307, 53 S.E.2d 761, 764, 11 A.L.R.2d 1019, it is held: "In order for a party to be liable as for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result.' Williams v. Grier, 196 Ga. 327, 337, 26 S.E.2d 698, 705; Mitchell v. J. S. Schofield's Sons Co., 16 Ga.App. 686, 690, 85 S.E. 978 * * *. 'Where an act is of a nature calculated to produce a certain injury, the causal connection, if any, between such act and the injury, is not necessarily broken by an intervening act which bears a causal relation to the injury. Either the original act or the intervening act may be the legal cause of the injury.' Nixon v. Williams, 25 Ga.App. 594(1), 103 S.E. 880. 'A defendant may be held liable for an injury where he commits a wrongful act which puts other forces in operation, resulting in the injury, which other forces are the natural and probable consequences of the act of the original wrong-doer, and which reasonably should have been foreseen by him as such consequences.' Louisville & Nashville R. Co. v....