Hodge v. Dixon, 43997
| Citation | 167 S.E.2d 377,119 Ga.App. 397 |
| Decision Date | 14 March 1969 |
| Docket Number | 3,2,Nos. 1,No. 43997,43997,s. 1 |
| Parties | T. W. HODGE v. Ruthie W. DIXON et al |
| Court | Georgia Court of Appeals |
Sharpe, Sharpe, Hartley & Newton, W. Ward Newton, Lyons, for appellant.
No appearance for appellees.
Syllabus Opinion by the Court
Damages traceable to a tortious act, but not its legal or natural consequence, are too remote and contingent to be recoverable (Code § 105-2009) unless the original actor, whose act would not otherwise be the legal or natural cause of the damages, acts knowingly for the purpose of bringing about the injury. Code § 105-2010. Although under the notice provisions of the new Civil Practice Act it is only necessary to set out 'a short and plain statement of the claim showing that the pleader is entitled to relief' (Code Ann. § 81A-108(a)) it is still possible for a litigant to plead himself out of court by revealing a state of facts which affirmatively shows that there is no liability on the defendant. Robbins v. Zabrasky, 44 F.Supp. 867(4); A.G. Reeves Steel Const. Co. v. Weiss, 119 F.2d 472, 476(9-12); Franklin v. Jordan, 224 Ga. 727, 164 S.E.2d 718; Jackson v. Brown, 118 Ga.App. 558, 164 S.E.2d 450.
Where subsequent to the original negligent act there occurs another tortious act sufficient of itself to cause the injury complained of, the latter is to be considered as the sole proximate cause unless it is a 'normal reaction to the stimulus of a situation created by negligence.' Higdon v. Ga. Winn-Dixie, Inc., 112 Ga.App. 500, 503, 145 S.E.2d 808. See also Piller v. Hanger Cab Co., 115 Ga.App. 260, 154 S.E.2d 420; Millirons v. Blue, 48 Ga.App. 483, 173 S.E. 443; Tucker v. Star Laundry & Cleaners, 100 Ga.App. 175, 110 S.E.2d 416; Palmer v. Stevens, 115 Ga.App. 398, 154 S.E.2d 803; Benefield v. McDonough Const. Co. of Ga., 106 Ga.App. 194, 126 S.E.2d 704; Liberty Homes, Inc. v. Stratton, 90 Ga.App. 675, 83 S.E.2d 818; Whitaker v. Jones, McDougald, Smith Pew Co., 69 Ga.App. 711(3), 26 S.E.2d 545; Peggy Ann of Ga., Inc. v. Scoggins, 86 Ga.App. 109, 71 S.E.2d 89; Ga. Power Co. v. Kinard, 47 Ga.App. 483, 170 S.E. 688; General Motors Corp. v. Jenkins, 114 Ga.App. 873(2), 152 S.E.2d 796; Andrews v. Kinsel, 114 Ga. 390(2), 40 S.E. 300; Horton v. Sanchez, 57 Ga.App. 612, 195 S.E. 873.
In the present case, after a collision between the defendants in this case had occurred, and after the automobile of one of the defendants was disabled, a city police officer arrived at the scene and in the regular course of his duties began to direct traffic so that the street and intersection would not be blocked. While he was doing so he was negligently struck and killed by another motorist not a party to this lawsuit. The proximate cause of the death of the plaintiff's husband was, under the statements of this petition, the act of a third party, and not the negligence of the two motorists which caused the collision in the first instance. The foreseeability doctrine, as stated in Williams v. Grier, 196 Ga. 327, 26 S.E.2d 698 has no application. There the negligence of the defendant in intentionally parking his automobile in a forbidden location which interfered with the visibility of the road by oncoming traffic created a situation constituting a continuing hazard to all persons approaching the intersection. In the present case the damages are too remote and contingent to be recoverable.
The trial court erred in denying the motion to dismiss the claim.
Judgment reversed.
Section 1 of the Act approved April 8, 1968 (Ga.L.1968, p. 1072) eliminated from the Appellate Practice Act of 1965 (Ga.L.1965, p. 18; Code Ann. § 6-701), Subparagraph (2) of Section 1(a) which gave the right of appeal 'where the decision or judgment complained of, if it had been rendered as claimed for by the appellant, would have been a final disposition of the cause or final as to some material party thereto' and substituted in lieu thereof a new Subparagraph (2) as follows: 'Where the trial judge in rendering an order, decision or judgment not otherwise subject to direct appeal, certifies within ten (10) days of entry thereof that such order, decision or judgment is of such importance to the case that immediate review should be had.' The judgment appealed from was one overruling demurrers to and a motion to dismiss the plaintiff's petition entered on July 19, 1968. A purported trial judge's certificate was obtained, dated July 26, 1968, which certified that the order overruling the demurrers filed by the appellant 'as to the issues presented in said demurrers, should be subject to review by direct appeal.' This certificate was filed on the same day as the notice of appeal, August 14, 1968. The certificate was obtained within the ten days but the certificate itself does not contain the certification required by the statute. The statute requires that the trial judge shall certify that the judgment appealed from 'is of such importance to the case that immediate review should be had.' Unless and until the trial judge substantially so certifies, the judgment will not support an appeal. This is not being technical, it is merely requiring compliance with the Act of the legislature which does not permit the appeal from such a ruling until such a certificate is given. Rockmart Fin. Co. v. High, 118 Ga.App. 351, 163 S.E.2d 758. The requirement that the trial judge must certify that the judgment appealed from is of such importance to the case that an immediate review should be had must mean something, and must have been placed in the statute for a purpose, otherwise it is meaningless. If the legislature had intented that the trial judge not be required to certify as to the importance of the case, they would have merely required that he certify the case for review. We cannot ignore this express language of the statute in order to save a case from dismissal. Nor can we convert the language to mean that where the trial judge...
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...Charles Seago Mechanical Contracting Co., Inc. v. Mobile Homes of Mississippi, Inc., 128 Ga.App. 261, 196 S.E.2d 346; Hodge v. Dixon, 119 Ga.App. 397, 167 S.E.2d 377. Proximate causation generally presents an issue of fact for jury determination. Stern v. Wyatt et al., 140 Ga.App. 704, 231 ......
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...v. Blue, 48 Ga.App. 483, 173 S.E. 443; Tucker v. Star Laundry & Cleaners, Inc., 100 Ga.App. 175, 110 S.E.2d 416; and Hodge v. Dixon, 119 Ga.App. 397, 167 S.E.2d 377, do appear to be, in some degree and to some extent, at variance with the rule expounded in the many others, but they have bee......
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...out of court by revealing a state of facts which affirmatively shows that there is no liability on the defendant." Hodge v. Dixon, 119 Ga.App. 397, 167 S.E.2d 377 (1969). See also Hendry, 286 Ga.App. at 781-782(2), 650 S.E.2d 338 (noting that "a party to an action is bound by material alleg......
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