Black v. Miller

• Decision Date: 28 July 1966
• Docket Number: 3,Nos. 1,2,No. 41950,41950,s. 1
• Parties: Margie T. BLACK v. Willard H. MILLER
• Court: Georgia Court of Appeals

Page 466

150 S.E.2d 466

114 Ga.App. 208

Margie T. BLACK v. Willard H. MILLER.

No. 41950.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 28, 1966.

Syllabus by the Court

1. The notice of appeal was filed within 30 days of the final judgment appealed from and is not subject to dismissal.

2. The petition stated a cause of action and the trial court erred in sustaining the general demurrer.

Margie T. Black filed this suit against Willard H. Miller doing business as Miller's Sinclair Station. The trial court sustained a general demurrer interposed by defendant, and granted plaintiff leave to amend within 20 days. Within the time allowed, plaintiff filed her amendment.

As amended, plaintiff's petition alleged that 'defendant owned and operated a service station and U-Haul-It trailer rental agency located at the corner of Gordon Street and Lawton Street in the City of Atlanata, Georgia.' On or prior to June 29, 1964, 'defendant parked a large U-Haul-It trailer to the rear of his service station.' On June 29, 1964, this 'trailer rolled off defendant's service station property and continued rolling until it struck a residence located at 583 Lawton Street, S.W., owned by the plaintiff.' The 'trailer struck the side of the plaintiff's said property with great force and impact, causing extensive damages to said residence.' In alleging the defendant's negligence the amended petition stated: 'The proximate cause of the injury to plaintiff's building as aforesaid, was defendant's negligent acts as follows: (a) Parking the aforesaid trailer on his property in close proximity to a steep, unguarded incline above and overlooking your plaintiff's property, which is located below said incline, when he knew or should have known that to do so was to subject plaintiff's property to unreasonable danger and jeopardy. (b) Failing to property secure said trailer by ropes, chains, or other devices suitable for holding said trailer under the aforesaid circumstances.'

After plaintiff had amended her petition, defendant renewed his demurrer. After a hearing, the trial court entered an order on October 1, 1965, sustaining defendant's renewed demurrer to the amended petition and granting plaintiff leave to amend within 20 days. On October 14, 1965, plaintiff filed her notice of appeal. This court, having no jurisdiction because the appeal was prematurely brought, dismissed the case. See Black v. Miller, 113 Ga.App. 10, 147 S.E.2d 57.

Thereafter, on January 28, 1966, the trial court entered an order dismissing plaintiff's petition, plaintiff having failed to amend her petition pursuant to the order of October 1, 1965. Plaintiff filed her notice of appeal on February 23, 1966, and enumerates error upon the trial court's judgments of October 1 and January 28.

David H. Fink, Atlanta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy, R. W. Patrick, Atlanta, for defendant in error.

JORDAN, Judge.

1. The defendant's only relevant contention expressed in its original brief is that plaintiff's petition stood automatically dismissed upon the lapse of 20 days after the trial court's judgment of October 1, 1965, and that since plaintiff's notice of appeal was not filed within 30 days from the date the automatic dismissal became effective, this court is without jurisdiction. The contention has no merit.

The October 1 order sustaining defendant's renewed demurrer to the amended petition did not provide that in default of an amendment within the time allowed the petition should stand dismissed. In the absence of a provision expressly effecting dismissal, the petition did not stand automatically dismissed upon expiration of the time allowed for amendment. A second order was necessary to effect the dismissal. Steed v. Savage, 121 Ga. 84, 48 S.E. 689; Luke v. Ellis, 201 Ga. 482(1), 40 S.E.2d 85. See Smith v. Bugg, 35 Ga.App. 317, 133 S.E. 49. It follows that the October 1 order sustaining the demurrer was not, and did not become upon the expiration of 20 days, a final judgment from which appeal could be taken. Thus, the court by the October 1 order retained jurisdiction over the case until rendition of a further order effecting dismissal. The latter judgment dated January 28 was the only valid final judgment of dismissal. The notice of appeal filed February 24 came within 30 days of the judgment of dismissal and within the time required by Code Ann. § 6-803. Echols v. Time Motor Sales, Inc., 111 Ga.App. 554, 555(1), 142 S.E.2d 324.

2. We are now called upon to decide whether or not this petition states a cause of action as against a general demurrer. While on general demurrer the petition must be strictly construed against the pleader, yet "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." Sarno v. Hoffman, 110 Ga.App. 164, 166, 138 S.E.2d 96, 98; 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. of LaGrange 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.

It is also well settled that as against a general demurrer mere general allegations of negligence are sufficient and that questions of negligence, diligence, and proximate cause should be determined by a jury except in palpably clear, pain and indisputable cases.

In the light of these well established principles it is our opinion that the petition is sufficient to withstand the general demurrer and that the trial court erred in sustaining the same.

Here we have the positive allegation that the trailer rolled off the defendant's service station property and continued rolling until it struck the plaintiff's residence. While common experience teaches that a vehicle will not roll on level ground, it also teaches that, if the vehicle rolled, the ground was not level. Therefore, the only reasonable construction that can be given to the allegation that the vehicle rolled is that the ground was not perfectly level or horizontal at the point where the trailer was parked. The defendant could not assume that the parking area was level, for as pointed out by Judge Bell in Benefield v. McDonough Const. Co., 106 Ga.App. 194, at p. 195, 126 S.E.2d 704, at p. 706, one 'could not assume the floor was level nor would a cursory examination protect him, for he should have foreseen, as a matter of common knowledge, that a floor might vary to some degree in its horizontal plane. The exercise of ordinary care would have required him, under all the facts alleged, to have taken precautions sufficient to prevent the scaffold from rolling.'

There is the additional allegation that the trailer was parked 'in close proximity to a steep, unguarded incline above and overlooking' the plaintiff's property without brakes, blocks or other devices to secure it in place, thus squarely presenting the question of whether such uncontrolled parking at this particular place constituted negligence on the part of the defendant under the circumstances and conditions alleged in the petition.

'Because of the fact that damage likely to result if a vehicle left unattended gets into motion is obvious, a person leaving his automobile must use reasonable caution to prevent it from moving to the injury of others * * *' 2A Blashfield, Cyclopedia of Automobile Law and Practice, 73, § 1206. Estridge v. Estridge, (Ky.) 333 S.W.2d 758, holds that this duty requires that parked vehicles be made 'secure by setting brakes or other means which will prevent it from moving except by intervention of some operational act or external cause that could not be anticipated and guarded against,' and that the greater degree of care is exacted, where an automobile is parked on an incline or other place involving risk that it may move without outside interference. As to a parked tractor-trailer, see The Kroger Company v. Perpall, 105 Ga.App. 682(1), 125 S.E.2d 511. Also, Fulcher v. Rowe, 78 Ga.App. 254, 50 S.E.2d 378; Wright Contr. Co. v. Waller, 89 Ga.App. 827, 81 S.E.2d 541; Peggy Ann of Ga., Inc. v. Scoggins, 86 Ga.App. 109, 71 S.E.2d 89; Scoggins v. Peggy Ann of Georgia, Inc., 87 Ga.App. 19, 73 S.E.2d 79; 60 C.J.S. Motor Vehicles § 334, p. 777. See also Georgia Hwy. Express, Inc. v. Sturkie, 62 Ga.App. 741, 745(1), 9 S.E.2d 683; Rome R. &c. Co. v. Keel, 3 Ga.App. 769, 771(2), 60 S.E. 468; McClelland v. Northwestern Fire, etc., Co., 91 Ga.App. 640, 642(1), 86 S.E.2d 729; George A. Fuller Constr. Co. v. Elliott, 92 Ga.App. 309, 88 S.E.2d 413; Southern R. Co. v. Elliott, 93 Ga.App. 370, 91 S.E.2d 775.

Even construing the allegations of the petition to show only that the trailer was parked on perfectly level ground, could the defendant have reasonably foreseen that some intervening agency not sufficient to insulate him against liability would cause the trailer to roll to the steep, nearby incline? A large trailer, such as here alleged, on wheels, precariously and evenly balanced on perfectly level ground might be caused to move by even a slight gust of wind, and wind, unless of extraordinary intensity, is not such an intervening proximate cause as will insulate a defendant against his original negligence. Pollard v. Walton, 55 Ga.App. 353, 355, 190 S.E. 396. A prospective customer for the rental of the trailer making a normal inspection of the trailer might have easily and unintentionally set the same in motion. One will not be relieved of the consequences of his negligence by an intervening act which in the normal course of events he should have anticipated might occur. Southern Ry. Co. v. Webb, 116 Ga. 152(1), 42 S.E. 395, 59 L.R.A. 109.

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