Andrews v. Kinsel

Decision Date12 December 1901
PartiesANDREWS et al. v. KINSEL. KINSEL v. ANDREWS et al.
CourtGeorgia Supreme Court

WRIT OF ERROR—DISMISSAL—NEGLIGENCE— PROXIMATE CAUSE.

1. Where the controlling question in a case is raised by a cross bill of exceptions, and the judgment thereon is reversed, the writ of error on the main bill of exceptions will be dismissed.

2. In a suit for damages, where it appears upon the face of the plaintiff's petition that there intervened between the alleged negligence of the defendant and the damage sustained by the plaintiff the independent criminal act of a third person, which was the direct and proximate cause of the damage, the petition should be dismissed on general demurrer.

(Syllabus by the Court.)

Error from superior court, Muscogee county; W. B. Butt, Judge.

Action by Ernest Andrews & Co. against C. M. Kinsel. Demurrer to the petition overruled and nonsuit granted, and plaintiffs bring error, and defendant assigns cross error. Main writ of error dismissed, and judgment on cross bill reversed.

T. T. & B. S. Miller and Goetchins & Chap-pell, for plaintiffs in error.

Hatcher & Carson, for defendant in error.

LEWIS, J. Andrews & Co. sued Kinsel for §500 damages, making by their petition substantially the following case: The plaintiffs rented from the defendant a storehouse in the city of Columbus, in which they transacted a mercantile business; and it was the duty of the defendant, as the landlord of the plaintiffs, to keep the premises in good, repair. The defendant also owned the storehouse adjoining that rented by the plaintiffs, a partition wall dividing the two stores. On a named day the defendant, by his agents and servants, entered his storehouse adjoining the plaintiffs' place of business for the purpose of making certain repairs thereon, and in making the repairs the partition between the two storehouses was removed, or partly removed, leaving the store of the plaintiffs exposed and unprotected; and upon leaving the place at night the defendant's agents and servants negligently carelessly left open two rear windows in the store next to that of the plaintiffs, thereby rendering it easy to effect an entrance into the plaintiffs' store through the rear windows and the opening in the partition. On the night in question a burglar or burglars did gain entrance to the plaintiffs' store in the manner described, and steal from the plaintiffs a large quantity of merchandise, to their damage as aforesaid. No notice was given to the plaintiffs that the partition had been removed or that the windows had been left open, and this, also, is alleged to have been negligence. The defendant filed a demurrer to the petition, which was overruled, and he also filed an answer, in which he denied liability, and denied that he had been negligent as alleged. The case went to trial, and, at the conclusion of the evidence for the plaintiffs, the court, on motion of defendant's counsel, granted a nonsuit. To this ruling the plaintiffs excepted, and the defendant filed a cross bill of exceptions in which he assigned error upon the overruling of his demurrer.

1. As, in our opinion, the court below should have sustained the demurrer filed by the defendant, and the refusal to do so was reversible, the writ of error issued upon the main bill of exceptions will, under the ruling of this court in Rives v. Rives, 113 Ga. 392, 39 S. E. 79, be dismissed.

2. It is unnecessary to argue, or to cite authorities to sustain, the well-settled legal principle that, to enable one to recover for damages resulting from the negligent conduct of another, it must appear that the negligence of the defendant was the proximate cause of the injury sustained. It is also a well-recognized principle that where there has intervened between the defendant's negligent act and the injury an independent illegal act of a third person, producing the injury, and without which...

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54 cases
  • Standard Oil Co. v. Harris, s. 44523
    • United States
    • Georgia Court of Appeals
    • December 5, 1969
    ...Co. v. Price, 106 Ga. 176, 32 S.E. 77, 43 L.R.A. 402; Central of Ga. Ry. Co. v. Edwards, 111 Ga. 528, 36 S.E. 810; Andrews & Co. v. Kinsel, 114 Ga. 390, 392, 40 S.E. 300; Southern Transportation Co. v. Harper, 118 Ga. 672, 45 S.E. 458; Postal Telegraph-Cable Co. v. Kelly, 134 Ga. 218, 67 S.......
  • Jacobs v. Atl. Coast Line R. Co
    • United States
    • South Carolina Supreme Court
    • October 2, 1928
    ...Louisville Home Tel. Co. v. Gasper, 123 Ky. 128, 93 S. W. 1057, 29 Ky. Law Rep. 578, 9 L. R, A. (N. S.) 548; Andrews v. Kinsel, 114 Ga. 390, 40 S. E. 300, 88 Am. St. Rep. 25; Clay-pool v. Wigmore, 34 Ind. App. 35, 71 N. E. 509; Edgar v. Rio Grande Western R. Co., 32 Utah, 330, 90 P. 745, 11......
  • Knight v. Wal-Mart Stores, Inc.
    • United States
    • U.S. District Court — Southern District of Georgia
    • May 11, 1995
    ...therefore the sole proximate cause of any injury. This then relieves other, prior negligent actors of liability. See Andrews v. Kinsel, 114 Ga. 390, 40 S.E. 300 (1901). Several events did occur between the sale to Brown and his death, but they are not intervening acts absolving Wal-mart of ......
  • Green v. Atlanta & C. A. L. R. Co.
    • United States
    • South Carolina Supreme Court
    • July 7, 1928
    ... ... 536, 51 N.E. 1, 41 L. R ... A. 794; Louisville Home Tel. Co. v. Gasper, 123 Ky ... 128, 93 S.W. 1057, 9 L. R. A. (N. S.) 548; Andrews v ... Kinsel, 114 Ga. 390, 40 S.E. 300, 88 Am. St. Rep. 25; ... Claypoole v. Wigmore, 34 Ind.App. 35, 71 N.E. 509; ... Edgar v. R. Co., 32 ... ...
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