Clinton v. Gunn-willis Lumber Co

• Decision Date: 12 July 1948
• Docket Number: No. 31877.,31877.
• Citation: 49 S.E.2d 143
• Parties: CLINTON. v. GUNN-WILLIS LUMBER CO. et al.
• Court: Georgia Court of Appeals

49 S.E.2d 143

CLINTON.

v.GUNN-WILLIS LUMBER CO. et al.

No. 31877.

Court of Appeals of Georgia,

Division No. 2.

July 12, 1948.

Rehearing Denied July 31, 1948.

[COPYRIGHT MATERIAL OMITTED]

Syllabus by the Court.

1. Where the concurrent acts of negligence of the Gunn-Willis Lumber Company and the Georgia Power & Light Company combined to cause the injury, they may be sued jointly.

2. The petition as amended set forth a cause of action against both the lumber company and the power company and the trial court therefore erred in sustaining the general demurrer.

Error from Superior Court, Decatur County; Carl E. Crow, Judge.

Action by Lela Clinton against Gunn-Willis Lumber Company, and another for damages for the death of a minor. The trial judge sustained demurrers, and plaintiff brings error.

Reversed.

Mrs. Lela Clinton, the mother of George Washington Clinton, deceased, brought suit against Gunn-Willis Lumber Company and Georgia Power and Light Company, hereinafter referred to as the Power Company, as joint tort-feasors, for the death of the decedent, a minor seventeen years of age. To the petition both defendants filed general and special demurrers. The trial judge sustained the general demurrers and the special demurrers relating to a misjoinder of parties; the other special demurrers were not passed upon. To this ruling the plaintiff excepts.

The allegations of the petition material to a determination of the questions presented are in substance these: (3) On March 1, 1947 [the date of the death of decedent], Gunn-Willis Lumber Company was the owner and operator of a saw-mill, the electric power for operating the same having been supplied by the defendant Power Company; (4) electricity is an invisible, impalpable force, highly dangerous to life unless controlled, conveyed and distributed with a proper degree of care in the construction, use and repair of the lines by which it is conveyed; (5) Gunn-Willis Lumber Company, in operating its saw-mill, had caused a large sawdust pile to accumulate near this mill, which pile of sawdust was within the corporate limits of the City of Bainbridge, and about 500 feet in circumference, the eastern edge of which was within 63 feet of the intersection of Washington and Columbia Streets; this pile of sawdust was in plain view of these streets, and it was situated in a thickly settled community, in which lived a large number of children; (6) for many months the sawdust pile had been negligently allowed to accumulate in such tremendous proportions as to cause the top of the same to be within four and one-half feet from an uninsulated wire, strung on poles about 100 yards apart, which conveyed an electric current of 2, 300 volts by which said saw-mill was operated, and which wire, because of the negligence of the Power Company, had been allowed to sag between said poles and over said huge sawdust pile to an extent that the negligence of both defendants contributed in causing a dangerous situation to exist, in the nature of a "man trap, " by al-lowing this deadly and invisible current of electricity to be conveyed in such close proximity to the top of said sawdust pile, where children were permitted to play, among whom was the decedent; (7) for a long period of time, and ever since the Lumber Company had operated said sawmill and had owned the premises on which the saw dust pile was located, the defendants had knowingly permitted children, almost every day, in large numbers, to play in and around and on the top of this sawdust pile, which was unfenced and unguarded, and in plain view of the streets aforesaid, and without in any way warning these children, among whom was the decedent, of the dangers incident thereto because of the hidden peril and hazardous situation created by the invisible and high powered electric current; (8) on the day of decedent's death, decedent had occasion to pass by said sawdust pile looking for his lost dog, where he found a number of children playing, as was their custom. Deciding to engage in their sport, by diving onto and into the sawdust, he made his way to the top of same, all of which was wet from a recent rain. Decedent, at the time, was in his bare feet without socks or shoes, and without his hat. After reaching the top, or near the top, of the pile of sawdust, the top of his head was about one foot and six inches from the wire transmitting the electric current. After assuming a diving position, but before he could leap, the powerful electric current, attracted by the connection made by decedent's body with the wet sawdust, struck some portion of his body, and he was instantly killed; (9) plaintiff shows the following, under the facts hereinbefore alleged: (a) That the defendant did not use ordinary care and diligence, and that such negligence was wilful and wanton in the sense that the decedent, a licensee, was exposed to a concealed danger created and maintained by the defendants on the premises of the Lumber Company, where and at a time when the presence of said decedent should have reasonably been anticipated by the defendants, of which hidden peril the defendants were entirely cognizant, and of which invisible peril the decedent was unaware; (b) that, because of the facts hereinbefore alleged, the defendants allowed the premises, where the decedent was killed, to be kept in such a state or condition as to lure and attract children to play upon or around the huge sawdust pile over which and within four and one-half feet of the top of the same was an [un]insulated electric line carrying a current of 2, 300 volts of invisible electricity; (10) at the time of his death decedent was 17 years of age, but while he was a strong and able bodied boy physically, and able to do manual work, his brain had ceased to properly develop in his early youth, and he had the mind of a normal child 7 or 8 years old, and he was accustomed to play with children of that age.

John R. Wilson and Erle M. Donalson, both of Bainbridge, for plaintiff in error.

Custer & Kirbo and Conger & Conger, all of Bainbridge, and Groover Middlebrooks, of Atlanta, for defendants in error.

MacINTYRE, Presiding Judge.

1. The only special demurrers passed upon by the trial judge were those relating to a misjoinder of parties.

"It is a well-established general rule that, 'where two or more persons or corporations, acting independently, without concert, plan, or other agreement, inflict a damage or cause an injury to another person, the persons inflicting the damage are not jointly liable therefor, but each is liable for his proportion only of the damages; and in such a case a joint action against them cannot be maintained.' * * * But it is also true that, even though voluntary, intentional concert is lacking, if the separate and independent acts of negligence of several combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred." Scearce v. Mayor § Council of Gainesville, 33 Ga. App. 411, 126 S.E. 883.

We think the trial judge erred in sustaining the special demurrers as to misjoinder of parties.

2. The only question remaining for our determination is whether or not the petition sets forth a cause of action against the defendants as against a general demurrer.

As shown above the plaintiff alleges that the defendants failed to exercise ordinary care and diligence, and that such negligence was wilful and wanton in that the decedent was exposed to a concealed danger in the nature of and the equivalent to a mantrap created and maintained by the defendants on the premises of the lumber company, where and at a time when the presence of the decedent should have been anticipated by the defendants, of which hidden peril the defendants were fully cognizant and of which the decedent was unaware.

The petition further alleges that the defendants were negligent in maintaining an attractive nuisance, the theory of which is based upon the "turntable cases."

Even though it is necessary for the plaintiff to allege that he had permission from the owner of the premises on which he had entered at the time he was injured, or that the defendant knew of his presence at the scene of his injury (Augusta Ry. Co. v. Andrews, 89 Ga. 653(2), 16 S.E. 203), in the instant case the petition met this requirement by alleging that the defendants had knowingly permitted large numbers of children, almost every day, to play in and around and on top of the sawdust pile which was located in plain view of the public streets of the city of Bainbridge.

Where the defendants were aware of the custom of children to play in and around the sawdust pile, the defendants are bound to anticipate the presence of such children and are under a duty to...