Dennis v. Odend'hal-monks Corp.

• Decision Date: 06 December 1943
• Citation: 28 S.E.2d 4,182 Va. 77
• Court: Virginia Supreme Court
• Parties: DENNIS et al. v. ODEND'HAL-MONKS CORPORATION.

182 Va. 77

28 S.E.2d 4

DENNIS et al.

v.ODEND'HAL-MONKS CORPORATION.

Supreme Court of Appeals of Virginia.

Dec. 6, 1943.

CAMPBELL, C. J., and GREGORY, J., dissenting.

Error to Circuit Court of City of Norfolk; Allan R. Hanckel, Judge.

Separate actions by Lewis S. Dennis, an infant, etc., and by John Lewis Dennis against Odend'Hal-Monks Corporation for personal injuries sustained by infant plaintiff and for damages on account of medical and other expenses incurred by infant's father. The actions were consolidated under Code 1942, § 5331a, and by consent were considered as one case. To review a judgment sustaining demurrers to the notices of motion for judgment and dismissing the actions, plaintiffs bring error.

Judgment affirmed.

Before CAMPBELL, C. J., and HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Martin & Martin and Smith & Smith, all of Norfolk, for plaintiff in error.

Rixey & Rixey, of Norfolk, for defendant in error.

BROWNING, Justice.

The plaintiffs in error, who were the plaintiffs in the trial court, sued the defendant in error, Odend'Hal-Monks Corporation by notice of motion for judgment, for damages resulting from personal injuries sustained by Lewis Sterling Dennis, an infant under the age of twenty-one years.

John Lewis Dennis, father of said infant, sued separately for damages on account of medical and other expenses incurred by him in the treatment of the infant plaintiff.

These actions were consolidated under the provisions of section 5331a of the Code of Virginia, and by consent were considered as one case.

The defendant demurred to the notices of motion, original and amended, which was sustained, and the actions were dismissed on December 30, 1942. By writ of error granted the case is before us.

The sole question to be considered is whether the notices of motion stated acause of action. If they did the demurrers should have been overruled. If they did not the court was right in sustaining them.

The facts, as stated in the notices of motion and which are admitted by the demurrers, are as follows, quoting from the plaintiffs' petition:

"On August 15th, 1941, the defendant was engaged in performing certain roofing work on a building situated on 45th Street near its intersection with Colley Avenue, both public streets in the city of Norfolk.

"In the course of said work defendant parked an automobile truck, owned, operated and controlled by it, on said 45th Street in front of the building upon which the work was being done and in close proximity to a sand pile which was also in front of the said building.

"Young children were accustomed to play upon the said pile and in the vicinity of the parked truck, which fact was known to the defendant; and on said date the infant plaintiff, Lewis Sterling Dennis, three years of age, was in the vicinity of the said sand pile and of the said parked truck.

"An employee of the defendant who was working for the defendant on said building, placed on and upon the truck of the defendant a bottle made for, and used generally in the sale of a popular and well known and publicly advertised beverage known as 'Pepsi-Cola', upon the outside of which said bottle was placed the label customarily placed upon bottles containing said beverage known as 'Pepsi-Cola', which label was of a prominent and distinctive color and appearance, containing the words 'Pepsi-Cola', and other words indicating that the beverage known as 'Pepsi-Cola' was contained in said bottle, and which beverage is perfectly harmless and palatable for human consumption, and is widely and generally sold as a beverage to, and is consumed by the public, but which bottle actually and in fact contained a dangerous and poisonous acid used in connection with the roofing work in which the defendant was engaged, which acid was in fact, and was known by the defendant to be dangerous and poisonous to human beings if taken internally or applied externally.

"The said bottle was not marked in any way to indicate or warn anyone that it contained anything other than the beverage 'Pepsi-Cola', which it purported to contain, and no precautions were taken by the defendant to guard or keep said bottle in a safe place, or to prevent children or anyone else from obtaining possession of the dangerous acid that it contained.

"The infant plaintiff obtained possession of the bottle, and in ignorance of the fact that it contained the dangerous and poisonous acid, drank a portion thereof, and as a result was seriously burned in his mouth, throat, stomach and otherwise internally, causing him serious, painful and permanent bodily injuries, and the action was accordingly instituted by him for such injuries."

The plaintiffs contend that the facts stated and admitted by the demurrers constitute negligence on the part of the defendant, which consisted in leaving its truck parked on the side of the street, near a sand pile, where children congregated and played, with workmans tools, and a Pepsi-Cola bottle, containing muriatic acid, bearing the Pepsi-Cola label, in the body of the truck, the bottle, with its contents, constituting an attractive article to children and accessible to them. The defendant urges that the conditions created by this state of facts are not negligence.

The trial court, in sustaining the demurrers, took the position that the happening complained of could not reasonably have been expected; that foreseeableness or reasonable anticipation of the consequences of an act is determinative of the question of negligence.

The court made its written opinion a part of the record, in which it cited cases from this court as authority for its position. The case of Virginia Iron, Coke & Coal Co. v. Hughes' Adm'r, 118 Va. 731, 88 S.E. 88, 92, is cited, in which it was said: "It is not negligence to fail to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not reasonably have been anticipated, and would not have happened but for the occurrence of exceptional circumstances."

And again the case of Newport News & O. P. Ry. & Elect. Co. v. Clarks' Adm'r, 105 Va. 205, 52 S.E. 1010, 6 L.R. A., N.S., 905, 115 Am.St.Rep. 868, was cited.

If an occurrence is one that could not reasonably have been expected the defendant is not liable. Foreseeableness or...