Byrd v. English
| Decision Date | 11 February 1903 |
| Citation | 43 S.E. 419,117 Ga. 191 |
| Parties | BYRD v. ENGLISH et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A party to a contract, who is injured by reason of the failure of the other party to comply with its terms, cannot recover damages for the negligent act of a third person, by which the performance of the contract was rendered impossible.
Error from city court of Atlanta; H. M. Reid, Judge.
Action by C. P. Byrd against J. W. English and others. Judgment for defendants, and plaintiff brings error. Affirmed.
Vasser Wooley, for plaintiff in error.
Spencer R. Atkinson, E. V. Carter, and L. Z. Rosser, for defendants in error.
The petition filed by the plaintiff in the court below makes substantially the following case: The plaintiff was engaged in the printing and publishing business in the city of Atlanta, maintaining a large establishment, in which many workmen were employed. In the operation of his machinery and the lighting of his place of business he was dependent upon electric power supplied by the Georgia Electric Light Company, a corporation, and this power was conveyed by means of wires contained in conduits which were laid down under the ground. On a named day the defendants were engaged in constructing a building which was to be located on the same street as that on which the plaintiff's place of business was situated, and, as incident to the work of construction were excavating the lot of the defendant English, on which the building was to be constructed, for the purpose of inclosing a basement. In doing this they also excavated the earth under the sidewalk adjoining the lot. This was done without authority of law, and in violation of an ordinance of the city of Atlanta. By the negligence of the employés of the defendants, a wall of earth was allowed to fall in on the conduits containing the electric wires over which power was conveyed to the plaintiff's plant. The wires were broken and for several hours he was without the means of conducting his business, by reason of which fact he suffered damage set out in the petition. By amendments it was alleged that the plaintiff had a right to demand of the Georgia Electric Light Company the electric power which it had been furnishing him; that, but for the tort complained of, that company would have furnished him with power, and he would not have been damaged as set out; that the conduits of the electric light company were placed in the street by authority of the city of Atlanta, and in the exercise of the right of eminent domain in the company; that the plaintiff was under a contract with the Georgia Electric Light Company, by virtue of which that company furnished him with electric power, and under the terms of which he could not recover from it for damage occasioned by an accidental interruption of the current such as this was; that at the time of the commission of the tort complained of there was no other company or person in Atlanta offering to furnish electric current from whom the plaintiff could have secured service during the interval of interruption caused by the breaking of the wires; that it was impracticable to change the motive power used by the plaintiff during that interval; that the injury done was remedied at the earliest possible moment, and that everything possible was done to reduce the amount of damages sustained by the plaintiff. The court sustained a general demurrer to the petition as amended, and the plaintiff excepted.
In the brief of counsel for the defendants in error considerable stress is laid upon the argument that the plaintiff cannot recover because the negligence of the defendants (conceding that they were negligent as alleged in the petition) was not the proximate cause of the injury done to the plaintiff. In view of the decision of this court in the case of Southern R. Co. v. Webb, 116 Ga. 157, 42 S.E. 395 we are not prepared to say that the failure of the power in the plaintiff's place of business was not such a result as was reasonably to be anticipated from the alleged tort of the...
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