Mullis v. Chaika, s. 43324-43325

• Citation: 162 S.E.2d 448,118 Ga.App. 11
• Decision Date: 14 June 1968
• Docket Number: Nos. 43324-43325,No. 2,s. 43324-43325,2
• Parties: B. L. MULLIS v. A. J. CHAIKA et al. Bernice BROWN v. A. J. CHAIKA et al
• Court: United States Court of Appeals (Georgia)

Page 448

162 S.E.2d 448

118 Ga.App. 11

B. L. MULLIS v. A. J. CHAIKA et al.

Bernice BROWN v. A. J. CHAIKA et al.

Nos. 43324-43325.

Court of Appeals of Georgia, Division No. 2.

June 14, 1968.

Syllabus by the Court

1. In order for a party to be liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result.

2. A witness called for cross-examination as an agent of the opposite party under the provisions of Code Ann. § 38-1801 must be the party's agent at the time of trial and it is not sufficient that he was the party's agent at the time of the occurrence. Hence, it was reversible error for the trial judge to allow the plaintiff to call a witness for cross-examination who was not the agent of the defendant Mullis at the time of trial.

3. Mere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury.

4. Even in the absence of a request, the trial judge should charge the jury the law as to every controlling, material, substantial and vital issue in a case.

5-11. The remaining enumerations of error of both defendants are without merit.

12. Since a new trial must be granted the defendant Mullis, the co-defendant Brown may obtain a new trial upon proper application in the trial court. However, because such co-defendant's enumerations of error are not meritorious this court can only affirm the judgment as to her.

A. J. Chaika brought his action for damages in the State Court of Bibb County against Bernice Brown and B. L. Mullis, d/b/a Public Saf-T-Oil Service. The petition as amended alleged that the defendant Mullis was operating a service station in Macon, Georgia, with two concrete 'islands' upon which were located gasoline pumps; that on July 8, 1966, the plaintiff drove his automobile onto the premises for the purpose of purchasing gasoline and obtaining water for his car's radiator; that after parking his vehicle at one of the 'islands' the plaintiff went to the front of his car to put water in the radiator; that while this was going on the defendant Brown drove her automobile upon the premises to the adjacent 'island'; that the defendant Brown's automobile was pointing in the direction of the plaintiff and stopped between 20 and 30 feet from the plaintiff whose back was to her automobile; that the engine of the defendant Brown's car was kept in operation.

The petition further alleged that the defendant Brown had stopped at the service station for the purpose of purchasing gasoline in a metal can which had no top or other covering device on its opening; that the defendant Brown handed the metal can through the window of her automobile to Clarence Williams for the purpose of having gasoline put in it; that Clarence Williams was the attendant at the station and was acting within the scope of his employment; that after placing approximately one gallon of gasoline in the can the employee of the defendant Mullis undertook to deliver the can through the car window to the defendant Brown without any top or covering on the open container, of which the defendant Brown was well aware; that defendant Brown received the open container of gasoline through the open window without having turned off the engine, locked the brakes of the car or locked the automatic transmission so as to prevent forward movement of the vehicle while she was engaged in the act of placing an inherently dangerous substance in the automobile; in putting the gasoline can through the window Williams tilted it in such a way as to pour a large quantity of gasoline on the lap of the defendant Brown; that when the gasoline was poured on her she immediately lost control of her automobile and struck down the plaintiff; that he was crushed between his automobile and the automobile of the defendant Brown.

The petition also alleged as a result of being struck by the defendant Brown's automobile the plaintiff sustained serious injuries and designated the extent of those injuries. The defendant Brown was alleged to be negligent in undertaking to receive through the car window a container of gasoline, which she knew had an open top, which might escape into the vehicle; in failing to either shut off the engine or lock the brakes or the transmission before the open container of gasoline was inserted into the car; in losing control of her automobile and in failing to stop or turn before striking the plaintiff; in failing to warn the plaintiff of the approach of the automobile before striking him. Clarence Williams, whose negligence was imputable to the defendant Mullis, was alleged to be negligent in undertaking to put a can of gasoline which had no top or other covering through the car window; in tilting the can in such a manner as to pour gasoline on the defendant Brown; in dumping the gasoline on the defendant Brown's lap at a time when she was in control of the automobile with its motor running; in failing to cover the container of gasoline before sticking it through the window of the automobile; in failing to warn the plaintiff that he was about to be struck. The petition sought judgment against the defendants in the amount of $75,000 for special damages including medical expenses and loss of wages, diminution of the plaintiff's capacity to work and labor, and damages for pain and suffering.

The defendants filed separate demurrers and answers to the petition as amended. The trial judge overruled the demurrers to the petition and the case came on for trial. The jury awarded a verdict for the plaintiff in the amount of $55,000 against both defendants and judgment was entered accordingly. The defendants filed separate motions for new trial which were overruled and now appeal to this court. The appeal of the defendant Mullis is Case No. 43324 while that of the defendant Brown is No. 43325. The enumeration of errors and any evidence relative thereto will be found in the appropriate divisions of the opinion.

Martin, Snow, Grant & Napier, Hendley V. Napier, Miller Miller & Miller, Wallace Miller, Jr., Jones, Sparks, Benton & Cork, Carr G. Dodson, Macon, for appellant.

Adams, O'Neal, Steele, Thornton & Hemingway, H. T. O'Neal, Jr., Macon, for appellees.

QUILLIAN, Judge.

1. The first enumeration of error of the defendant Brown and that of the defendant Mullis both complained that the trial judge erred in overruling their general demurrers to the plaintiff's petition. In essence that defendants' positions in this regard are conflicting since each contends that the other's negligence intervened to break the chain of causal connection so far as juridical purposes are concerned. Thus, the defendant Mullis contends that Brown's negligence was the superseding independent cause of the damage and the defendant Brown contends that the defendant Mullis's negligence was the sole preponderating cause of the injuries to the plaintiff. In support of their contention the parties cite numerous cases for the general principle of law that 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. Powell v. Waters, 55 Ga.App. 307(1a), 190 S.E. 615. Washington v. Kemp. 97 Ga.App. 235, 102 S.E.2d 910 and Mayor and Council of Macon v. Dykes, 103 Ga. 847, 31 S.E. 443.

While recognizing the validity of rules pronounced in these and many other cases, we cannot agree with their application as contended for by the defendants.

In order that a party be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result. milton Bradley Co. of Ga. v. Cooper, 79 Ga.App. 302, 307, 53 S.E.2d 761, 11 A.L.R.2d 1019; Hospital Authority of Hall Co. v. Adams, 110 Ga.App. 848, 850(4), 140 S.E.2d 139; Williams v. Grier, 196 Ga. 327, 337, 26 S.E.2d 698. Where an act is of a nature calculated to produce a certain injury, the causal connection, if any, between such act and the injury is not necessarily broken by an intervening act which bears a causal relation to the injury. Nixon v. Williams, 25 Ga.App. 594(1), 103 S.E. 880.

The mere fact that the injury would not and could not have resulted by reason of the defendant's acts alone will not of itself be taken to limit and define the intervening agency as constitution the proximate cause. Where two concurrent causes naturally operate in causing an injury, there may be a recovery against both or either of the actors. Higdon v. Georgia Winn-Dixie, Inc., 112 Ga.App. 500, 502, 145 S.E.2d 808. 'The chain of causation is not broken by an intervening act which is a normal reaction to the stimulus of a situation created by negligence.' Bass v. Seaboard Air Line R. Co., 205 Ga. 458, 474, 53 S.W.2d 895, 905. A jury question is presented if reasonable minds might disagree as to whether specified conduct amounts to negligence and whether, if so, it was the proximate cause of the injury. Orkin Exterminating Co. v. Wingate, 84 Ga.App. 750, 67 S.E.2d 250; Epps v. Southern Bell Telephone & Telegraph Co., 98 Ga.App. 252(1), 105 S.E.2d 361.

Following the principles of the above cited authorities, it is apparent that the trial judge did not err in overruling the defendants' demurrers to the petition.

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