Gallovitch v. Ellis

• Court: Georgia Court of Appeals
• Writing for the Court: SUTTON
• Citation: Gallovitch v. Ellis, 55 Ga.App. 780, 191 S.E. 384 (Ga. App. 1937)
• Decision Date: 15 May 1937
• Docket Number: No. 26081.,26081.
• Parties: GALLOVITCH. v. ELLIS et al.

55 Ga.App. 780

191 S.E. 384

GALLOVITCH.

v.ELLIS et al.

No. 26081.

Court of Appeals of Georgia, Division No. 2.

May 15, 1937.

Syllabus by Editorial Staff.

STEPHENS, P. J., dissenting.

Error from Superior Court, Chatham County; John Rourke, Jr., Judge.

Petition by Rosalie Gallovitch against A. W. Ellis and others. To review a judgment sustaining a general demurrer to the petition, plaintiff brings error.

Affirmed.

Emanuel Kronstadt, of Savannah, for plaintiff in error.

McLaws; McLaws & Brennan, of Savannah, for defendants in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

1. Where it appears from a petition that the negligence alleged against the defendant was not the proximate and effective cause of the alleged injury, a demurrer to such petition should be sustained. "The most generally accepted theory of causation is that of natural and probable consequences (Mayor, etc, of Macon v. Dykes, 103 Ga. 847, 848, 31 S.E. 443); and, in order to hold the defendant liable, the petition must show either that the act complained of was the sole occasion of the injury, or that it put in operation other causal forces, such as were the direct, natural, and probable consequences of the original act, or that the intervening agency could have reasonably been anticipated or foreseen by the original wrongdoer." Gillespie v. Andrews, 27 Ga.App. 509, 510, 108 S.E. 906; Hardwick v. Figgers, 26 Ga.App. 494, 106 S.E. 738; Georgia Power Co. v. Kinard, 47 Ga.App. 483, 486, 170 S.E. 688; Southern Ry. Co. v. Webb, 116 Ga. 152, 42 S.E. 395, 59 L.R.A. 109.

2. "In a suit for damages, where it appears upon the face of the plaintiff's petition that there intervened between the alleged negligence of the defendant and the dam age sustained by the plaintiff the independent criminal act of a third person, which was the direct and proximate cause of the damage, the petition should be dismissed on general demurrer." Andrews & Co. v. Kinsel, 114 Ga. 390 (2), 40 S.E 300, 88 Am.St.Rep. 25; Bowers v. Southern Railway Co, 10 Ga. App. 367 (3), 73 S.E. 677, and cases cited in annotations on page 472 following Strong v. Granite Furniture Co, 78 A.L.R. 465.

3. Where rented premises are defective and unsafe, it is the duty of the tenant to notify the landlord and to refrain from using that portion of the premises, the use of which is attended with danger. Jackson v. Davis, 39 Ga.App. 621, 147 S.E. 913; Yancey v. Peters, 49 Ga.App. 128, 174 S.E. 182; Ball v. Walsh, 137 Ga. 350, 73 S.E. 585; Donehoe v. Crane, 141 Ga. 224, 80 S. E. 712.

4. Applying the foregoing principles of law to the allegations of the plaintiff's petition, the same failed to set forth a cause of action that would authorize a recovery by the plaintiff, and the judge properly sustained the general demurrer thereto. The allegations of the petition were that the defendants were the owners of certain described premises in the city of Savannah, which the plaintiff and her husband occupied as tenants; that early one morning, while the plaintiff was alone in her home, she was awakened from her sleep by a burglar who had entered the premises and was attempting to enter her...