Irwin v. Torbert

• Decision Date: 11 June 1948
• Docket Number: 16076,16097,16100,16101.
• Citation: 49 S.E.2d 70,204 Ga. 111
• Parties: IRWIN et al. v. TORBERT. TORBERT v. IRWIN et al. GEELE et al. v. TORBERT. TORBERT v. GEELE et al.
• Court: Georgia Supreme Court

49 S.E.2d 70

204 Ga. 111

IRWIN et al. v. TORBERT.

TORBERT v. IRWIN et al.

GEELE et al. v. TORBERT.

TORBERT v. GEELE et al.

Nos. 16076, 16097, 16100, 16101.

Supreme Court of Georgia

June 11, 1948

Rehearing Denied July 16, 1948. [Copyrighted Material Omitted]

Syllabus by the Court.

1. (a) Neither the ordinance of 1908, nor the Building Code of the City of Atlanta of 1924 is sufficient to establish, in the instant case, a cause of action predicated upon negligence per se.

(b 1) Neither the ordinance of 1938 nor § 51-117 of the City Code of Atlanta is ultra vires as being beyond the charter powers of the city.

(b 2) Neither the ordinance of 1938 nor § 51-117 of the City Code of Atlanta, is a special ordinance for which provision has been made by the existing general State law contained in Code, § 54-402, and is therefore not in violating of article I, section IV, paragraph I, of the Constitution of 1877 (Code, § 2-401).

(b 3) Neither the ordinance of 1938 nor § 51-117 of the City Code is void as being an unlawful delegation of the legislative power of the city.

(b 4) Neither the ordinance of 1938 nor § 51-117 of the City Code is too vague and indefinite to constitute a valid city ordinance.

2. The ordinance of 1938 and City Code, § 51-117, each having a similar provision therein in which part IX of the Building Code of the City of Atlanta is made a necessary part thereof and where part IX of the Building Code was not made a part of the amended petition, it was error to overrule a demurrer directed to this omission.

3. The petition setting forth Section 10(4) of the Building Code of the City of Atlanta, which provides that 'Buildings of masonry, steel, or reinforced concrete construction in accordance with Sections 110 to 173, shall be considered fire resistive;' and where sections 110 to 173 were not made a part of the amended petition, it was error to overrule a demurrer directed to this omission.

4. There was no error in overruling other grounds of demurrer specified in the corresponding division of the opinion.

5. While acts of commission or omission must, to constitute actionable negligence, amount to a violation of some law, and while there is no law specifying any of the alleged negligent acts or omissions mentioned in the corresponding division of the opinion, infra, yet the Cide, § 105-401, makes unlawful both acts of commission and acts of omission if they constitute want of ordinary care, and since they are alleged to have occurred at the same time and place, they must be considered together and not separately on demurrer, although separate demurrers are directed to each respectively, and so considered it cannot be said as a matter of law that the alleged acts do not show a lack of ordinary care, but such questions must be determined by the jury.

6. The court did not err in sustaining other grounds of demurrer as set forth in the corresponding division of this opinion, and excepted to in the cross-bill.

7. Direction is given providing for opportunity to amend to meet rulings in divisions 2 and 3 of the opinion.

On main bills, judgments affirmed in part and reversed in part with directions. On cross bills, judgments affirmed in part and reversed in part.

This was a suit in equity by O. B. Torbert against Mrs. Annie Lee Irwin, and the Winecoff Hotel Company, a partnership composed of A. F. Geele, Sr., A. F. Geele, Jr., and R. E. O'Connell, and each of the parties individually, for damages by reason of the death of petitioner's daughter in the Winecoff Hotel fire on December 7, 1946. The Arlington Corporation was also an original defendant.

In seeking equitable relief others were made parties defendant, to wit: Life and Casualty Insurance Company of Tennessee; Home Fire and Marine Insurance Company; Royal Insurance Company, Ltd.; Fireman's Fund Insurance Company; Home Insurance Company of New York; Potomac Insurance Company; Ocean Accident & Guarantee Corporation, Ltd.; Caledonian Insurance Company, Inc.; Alan B. Ford, doing business as Avalon Hotel; Atlanta Laundries, Inc., doing business as American Laundries; W. S. Heiber, doing business as Henri Monet; E. D. Smith, Jr.; Smith, Kilpatrick, Cody, Rogers & McClatchey; T. E. Suttles, Tax Collector, Fulton County; W. Lee Morrison; William J. Burns; Ben T. Hewitt (Huiet?); Lee Baking Company; City of Atlanta; Armour & Company, and Williams Meat Company.

Other angles of this case have previously been before this court. Geele v. Torbert, 202 Ga. 482, 43 S.E.2d 702; Irwin v. Torbert, 202 Ga. 482, 43 S.E.2d 703; Geele v. Torbert, 46 S.E.2d 126; Arlington v. Torbert, 46 S.E.2d 259.

The questions now before the court are exceptions to the overruling of a general demurrer to the petition, and to overruling certain special demurrers. By cross bill, exceptions are taken to the ruling on all demurrers which were sustained.

The references in this opinion to paragraphs of demurrer apply to the demurrer filed by Mrs. Irwin in the case of Torbert v. Irwin. A. F. Geele, Sr. A. F. Geele, Jr., and R. E. O'Connell filed demurrers raising the same questions, though the grounds were numbered differently.

The pleadings are voluminous, the original petition having been amended eight times, to which there were three demurrers, one to the original petition as first amended, another following the sixth amendment, and the third after the filing of the eighth amendment.

It would serve no useful purpose, and would unnecessarily prolong this statement of facts, to set forth the various allegations of the amended petition. Suffice it to say that Torbert sought damages from Mrs. Irwin, as owner of the Winecoff Hotel building and from Geele, Geele, and O'Connell, individually, and as a partnership, as lessees and operators thereof. The petition alleges negligence on the part of each of the above defendants in two ways, to wit: negligence per se by reason of maintaining the building and operating the hotel in violation of certain designated ordinances of the City of Atlanta; and also by reason of common-law negligence as set forth and described in various allegations of the petition. The principal rulings here excepted to are the decision of the trial judge, who overruled the demurrers as to negligence per se, and sustained the demurrers as to common-law negligence. The specific allegations of negligence, and other questions necessary to the determination of the questions here presented will be detailed in the opinion.

Lokey & Bowden, Grant, Wiggins, Grizzard & Smith and Wm. G. Grant, all of Atlanta, for Annie Lee Irwin.

Wm. G. Grant and James F. Cox, both of Atlanta, for Arlington Corporation.

Carl B. Copeland, of Atlanta, for Life & Casualty Ins. Co. of tennessee.

Smith, Partridge, Field & Doremus, of Atlanta, for Fireman's Fund Ins. Co. and others.

MacDougald, Troutman, Sams & Branch, of Atlanta, for Caledonian Ins. Co., Inc.

Arnold, Gambrell & Arnold, of Atlanta, for Ocean Accident & Guarantee Corporation, Ltd.

Herbert Johnson, of Atlanta, for W. S. Heiber.

Joseph F. Haas, of Atlanta, for Atlanta Laundries, Inc.

Calhoun & Calhoun, of Atlanta, for W. Lee Morrison.

Heyman, Howell & Heyman, of Atlanta, for William J. Burns and others.

Chifford Walker, of Atlanta, for Ben T. Huiet, Com'r. etc.

J. C. Savage, of Atlanta, for City of Atlanta.

F. L. Eyles, Sr., of Atlanta, for Williams Meat Co. and others.

Moise, Post & Gardner, of Atlanta, for Torbert.

Wm. G. Grant, Lokey & Bowden and James Cox, all of Atlanta, for Annie Lee Irwin and others.

Lokey & Bowden, of Atlanta, for Allen B. Ford.

Smith, Kilpatrick, Cody, Rogers & McClatchey, E. D. Smith, Jr., and Hoke Smith, all of Atlanta, for A. F. Geele, Sr., and others.

Ralph H. Pharr, Durwood T. Pye, and W. S. Northcutt, all of Atlanta, for T. E. Suttles, tax collector.

Moise, Post & Gardner, of Atlanta, James E. Morrisette, McQueen & McQueen, Wright & McGuire, Rueben Wright, all of Tuscaloosa, Ala., Henry A. Stewart, of Cedartown, Sapp & Ewing, of Douglas, J. N. Peacock, Jr., Leonard Farkas, Walter H. Burt and Sam Brown Lippitt, all of Albany, William C. McLean, of Tampa, Fla., L. P. Goodrich, of Griffin, and Reginald W. McDuffee, of Savannah (Alfreda Wilkerson, Andrew A. Smith, Powell, Goldstein, Frazer & Murphy and Newell Edenfield, all of Atlanta, on motion for rehearing) for parties at interest not parties to record.

ATKINSON, Justice. (after stating the foregoing facts.)

1. Four ordinances of the City of Atlanta, a violation of which were alleged as negligence per se, were as follows: (1) Ordinance of 1908, (2) Building Code of 1924, (3) Ordinance of 1938, and (4) § 51-117 of the Code of the City of Atlanta.

(a) The ordinance of 1908 is contained in the third paragraph of the eighth amendment. The Building Code of 1924 is set forth in the second paragraph of the third amendment and the third paragraph of the eighth amendment. By Section 326 of this Building Code, as contained in the eighth amendment, it is provided that 'any and all other ordinances * * * affecting or relating to the construction, alteration or removal of buildings or other structures * * * are hereby repealed.' Accordingly, the ordinance of 1908, which related to the construction of buildings, was repealed. By the terms of the Building Code of 1924, as set forth in the first paragraph of the eighth amendment, it is provided that 'Unless existing buildings or structures are specifically mentioned, the provisions of this Code shall apply only to buildings or structures hereafter erected.' The allegations of the petition show that the Winecoff Hotel was built about 1912. Therefore, a violation of either the ordinance of 1908 or the Building Code of 1924 would not constitute negligence per se, and the...