Flint Explosive Co. v. Edwards

• Decision Date: 16 July 1951
• Docket Number: No. 2,No. 33440,33440,2
• Citation: 66 S.E.2d 368,84 Ga.App. 376
• Parties: FLINT EXPLOSIVE CO. et al. v. EDWARDS
• Court: Georgia Court of Appeals

Page 368

66 S.E.2d 368

84 Ga.App. 376

FLINT EXPLOSIVE CO. et al. v. EDWARDS.

No. 33440.

Court of Appeals of Georgia, Division No. 2.

July 16, 1951.

Syllabus by the Court.

1. The assignments of error on the overruling of the demurrers present a proper question for determination by this court.

2. An action for wanton misconduct cannot be joined with one for simple negligence in the same count over the objections of appropriate demurrer. MacIntyre, P. J., dissents.

3. Other acts similar to those of which the plaintiff complains occurring to others are in general not relevant and cannot be pleaded or proved. However, in an action for wanton misconduct when motive, malice and intent are involved, such acts may be material, and may be pleaded and proved for the purpose of establishing these factors. MacIntyre, P. J., concurs specially.

4. Likewise, while it is generally immaterial that a person is not the holder of a license such as a physician's license or a driver's license, this failure having no bearing on the question of negligence, yet the failure of the defendant Flint Company here to have a license might be material on the question of knowledge on the part of the defendant du Pont Company if the petition was based on wanton misconduct on the part of the two defendants. MacIntyre, P. J., dissents.

5. The petition sets forth a cause of action as against general demurrer.

6. Since the case is being reversed on the judgment of the trial court on certain of the special demurrers, the further proceedings became nugatory.

E. J. Edwards filed suit in the City Court of Bainbridge against Flint Explosive Company, a Georgia corporation, and E. I. du Pont de Nemours & Company, a Delaware corporation, for $50,000 damages for injuries allegedly sustained by the plaintiff from a dynamite explosion. The case was removed to the Federal District Court on the petition of the non-resident defendant, and the motion of the plaintiff to remand was overruled and a summary judgment was rendered on the merits for the defendants. The United States Circuit Court of Appeals reversed the District Court with directions to remand the entire case to the State court, Edwards v. E. I. Du Pont De Nemours & Co., 5 Cir., 183 F.2d 165, decision rendered June 16, 1950. When the case came on for trial in the City Court of Bainbridge the plaintiff offered an amendment, which was the same as one which he had offered in the Federal District Court. This amendment was allowed in the City Court subject to demurrer on September 19, 1950. The defendants filed joint and several general and special demurrers to the amendment, to the original petition, and to the petition as amended. All of these demurrers except the first special demurrer, which was sustained, were overruled and the defendants filed exceptions pendente lite to such judgment overruling their demurrers. The trial of the case resulted in a verdict in favor of the plaintiff for the sum of $20,000. The defendants' motion for a new trial, based upon the usual general grounds and thirteen special grounds, was overruled and they excepted.

In order to give a more comprehensive view of the petition as amended we have integrated the original petition and the amendment by placing the language of the amendment in brackets. The material allegations of the petition as amended are as follow: (3) The defendant, du Pont manufactures dynamite, dynamite caps and fuses which are distributed through dealers throughout the United States and foreign countries; the Flint Explosive Company is one of such dealers and purchases from du Pont dynamite, dynamite caps, and fuses, which the Flint Explosive Company in turn sells to the public in Decatur County and the surrounding territory in Southwest Georgia. (4) The Flint Explosive Company has failed to register with the Ordinary of Decatur County the amount of explosive, including dynamite, on hand at any time since it has been doing business in Decature County and has failed to obtain from the Ordinary of that county a license authorizing that defendant to possess and control explosive as provided by the terms of Chapter 88 of the Georgia Code. (5) On November 7, 1948, the plaintiff purchased from the Flint Explosive Company one case, containing 100 sticks of dynamite, 100 dynamite caps, and 100 feet of fuse, all of which was manufactured by the du Pont Company. (6) The plaintiff purchased these items from the Flint Company for the purpose of blasting tree stumps on his land which purpose was well known to the defendants. The Flint Company was selling such items for such purpose generally in Southwest Georgia with the knowledge and approval of the defendant du Pont Company. (7) The Flint Company represented to the plaintiff that the dynamite, caps and fuses were suitable for the purpose intended and instructed him in the customary and ordinary use of the explosives, to wit; that in each stick of dynamite, a cap was to be inserted and extending from the cap was to be one foot of fuse, and the end of the fuse farthest away from the cap was to be ignited and the dynamite inserted under the stump. [J. C. Barrett, an officer and agent in charge of the Flint Company instructed the plaintiff in the use of the explosives and represented to the plaintiff on November 7th in Jakin, Georgia, that the same were safe and efficient.] (8) The fuse is manufactured by du Pont and sold to the public, through its dealers, for the sole purpose of being used in connection with its dynamite and caps and is intended to retard the acceleration of the spark from the point of ignition to the cap, thereby delaying the explosion and permitting the user to move outside of the sphere of explosion before it occurs. The fuse was manufactured by the du Pont Company and sold to the plaintiff by the Flint Company as a means of delaying the explosion of the dynamite and permitting the plaintiff to remove himself to a place of safety before the explosion occurred. (9) Following the instruction given him, the plaintiff exploded ten sticks of dynamite prior to eleven o'clock on the morning of December 29, 1948, while he was engaged in blowing up stumps on his farm in Early County, Georgia, using the dynamite, caps, and fuse which he had purchased from the Flint Company. (10) On that same day at the same time and place, the plaintiff cut off a foot of fuse, inserted one end of the fuse in the cap and inserted the cap in a stick of dynamite in which he had punched a hole as instructed to do; he then struck a match and applied it to the end of the fuse farthest away from the stick of dynamite; the spark passed immediately from the ignited end of the fuse to the cap and there was an instantaneous explosion of the dynamite which blew off the plaintiff's right hand and lower arm, wounded him in his right leg, deafened him in the left ear, damaged the sight of his left eye, and resulted in severe head injuries from which he still suffers excruciating pain. (11) Prior to the time the plaintiff purchased the dynamite, caps, and fuse from the defendants and prior to his injury, there had been a series of injuries to various customers of the defendants that resulted from similarly defective fuse purchased from the defendants and these accidents and injuries were well known to the defendants but unknown to the plaintiff; but, nevertheless, the defendants continued to distribute and sell the defective fuses. (12) The dangerous and defective condition of the fuse was within the knowledge of the defendants and within their power to correct by the exercise of only the slightest degree of care. * * * (16) The plaintiff's injuries were the proximate result of the negligence of the defendants. (17) The defendant, E. I. du Pont de Nemours & Company, was negligent in: (a) Distributing through, and selling to, an unlicensed corporation which had failed to comply with the terms of Chapter 88 of the Georgia Code; (b) In manufacturing a fuse for the purpose of retarding the spark's progress toward the dynamite and in such manufacture failing to intersperse the supply of powder evenly in the fuse, the defect in the fuse used by the plaintiff being that there was an excess of powder in the particular piece of fuse used which caused the spark to pass instantaneously from the point of ignition to the cap; and (c) In selling the defective fuse through Flint Explosive Company without apprising the purchasers and the general public of the uneven distribution of said powder in the fuse which was well known to the defendant du Pont Company. (18) The defendant, Flint Explosive Company, was negligent in selling the defective fuse to the plaintiff without apprising him of the uneven distribution of the powder in the fuse which was well known to the Flint Explosive Company, there having been a number of other similar explosions resulting from said defective fuse sold by the Flint Company which facts were well known to the Flint Company but unknown to the plaintiff. (19) The plaintiff was free from fault and there was no way in which he could determine from an inspection of the fuse the uneven distribution of the powder therein. (20) The said J. C. Barrett, who was an officer, agent, and manager of the Flint Company and who sold the dynamite, caps, and fuse to the plaintiff and instructed him in the use thereof, was incompetent, inexperienced, and unqualified to handle and sell such articles properly and safely and to give instructions as to its proper use. (21) This paragraph was stricken on demurrer. (22) The defendant, Flint Company, has not and could not qualify for a license to possess, control, and sell explosives under the terms of Chapter 88 of the Georgia Code Annotated Supplement. From the time the Flint Company began handling the products of the Du Pont Company through the date on which the plaintiff was injured, the Flint Company's officers, and employees have been incompetent, inexperienced, and unqualified to...