Garrett v. Royal Bros. Co.
| Decision Date | 08 September 1969 |
| Docket Number | No. 25212,25212 |
| Citation | 225 Ga. 533,170 S.E.2d 294 |
| Parties | Bertha GARRETT v. ROYAL BROTHERS COMPANY, Inc. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The conduct of defendant cannot be declared to be negligent, as a matter of law, unless it has been so declared by a law-making body, and, in the absence of such a declaration the jury is the arbiter of the question of whether a defendant's conduct on a given occasion is negligent, and, if so, whether such negligence is the degree of negligence required for a recovery by a plaintiff.
Briefly stated, the facts in the present case are as follows: Royal Frozen Foods Co., Inc. owned a building and business in Camilla, Georgia. Royal Brothers Co., Inc. had merchandise stored therein. Mrs. Bertha Garrett drove an automobile onto the premises to purchase gasoline and after obtaining the gasoline backed away from the gasoline pump striking the same with the front bumper of the automobile. The gasoline pump fell to the ground and a fire ensued which spread to a butane gas storage tank and then to a building. The fire destroyed property of both corporations. Each corporation sued Mrs. Garrett and upon the trial, the two cases being tried together, the jury returned a verdict for Mrs. Garrett in each case. Motions for new trial filed by each plaintiff were overruled and no appeal the Court of Appeals affirmed as to Royal Frozen Foods, Inc. and reversed as to Royal Brothers Co., Inc. on the theory that the evidence demanded a finding that as between Mrs. Garrett and the non-negligent bailor of merchandise stored on the premises, a verdict was demanded against Mrs. Garrett. Certiorari was granted to review that judgment.
Perry, Walters, Langstaff, Lippitt & Campbell, Robert B. Langstaff, Albany, for appellant.
Vann & McClain, Frank C. Vann, Benjamin L. Bateman, Camilla, for appellee.
The gist of the holding of the Court of Appeals is that the mere striking of a fixed object with an automobile is negligence as a matter of law and the burden of proof of any damages in any way resulting therefrom was not proximately caused by the person operating such vehicle is upon the defendant.
In Barrett v. Mayor, Etc. of Savannah, 13 Ga.App. 86, 78 S.E. 827, the Court of Appeals held: 'No act can be affirmed to be negligence, as a matter of law, unless it has been made so by statute.' No citation of authority was given for such statement, for indeed none was needed when such a well established principle of law was stated.
In Wright v. Georgia Railroad & Banking Comany, 34 Ga. 330, it was held: 'The judge has no right to determine what constitutes negligence.' And in Central of Georgia Railway Co. v. McKinney, 116 Ga. 13(2), 42 S.E 229: 'Whether the Commission of, or omission to do, particular acts by a railroad company, was negligence as to one who has been injured by the running and operation of a train of cars, must, as a general rule, be determined by a jury; and it is error for the judge, on the trial of a case brought to recover damages for such injuries, to charge the jury that the omission to do a certain act was negligence, when not expressly made so by law.' See also Portner Brewing Company v. Cooper, 116 Ga. 171(3), 42 S.E. 408, where it was held: 'It is error for a trial judge to instruct the jury that given facts would constitute negligence, when the facts are not such as are made by law to constitute negligence per se.' Such language appears throughout the opinions of this court, and has been applied consistently in cases where diligence and negligence are involved. See Lubeck v. Dotson, 192 Ga. 258, 265, 15 S.E.2d 205; City of Columbus v. Ogletree, 96 Ga. 177, 22 S.E. 709.
The plaintiff requested charges reading in part as follows: 'If you find Mrs. Garrett was negligent in knocking over the gasoline pump' and 'If under the charge I have given you, you find that Mrs. Garrett was negligent in knocking over the gasoline pump.' Thus, the plaintiff did not consider that the mere striking of the fixed object (the gasoline pump) was sufficient to charge the defendant with negligence as a matter of law and thus limit the jury to a consideration of whether the proximate cause of the damages was such negligence or whether she was not liable because of an intervening act of negligence sufficient to insulate her from liability.
The defendant testified as to her conduct and the circumstances surrounding the striking of the gasoline pump. This evidence alone was sufficient for the jury to find that her actions were not the result of a failure to exercise ordinary care although such actions may have been a failure to exercise extraordinary care resulting in slight negligence. Ordinary care is the proper measure of conduct of a motorist (see Jackson v. Smith, 56 Ga.App. 763, 194 S.E. 41), and a mere failure to exercise extraordinary diligence (amounting to slight negligence) by a motorist would not authorize a recovery by the plaintiff. Dixon v. Dixon, 103 Ga.App. 166, 118 S.E.2d 713. Accordingly, since the jury would be authorized to find that the defendant was not negligent, or that if she was negligent she was only guilty of slight negligence, the judgment of the Court of Appeals reversing the judgment of the trial court in overruling the plaintiff's motion for new trial was erroneous.
In view of the above holding other questions presented by the writ of certiorari with reference to proximate cause, intervening proximate cause, etc., need not be considered.
Judgment reversed.
All the Justices concur, except GRICE and FELTON, JJ., who dissent.
I do not regard the holding in this case to be a correct statement of the law.
As I view it, a defendant can be...
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