Southern Mills v. Newton

• Decision Date: 25 February 1955
• Docket Number: 35525,No. 2,Nos. 35524,s. 35524,2
• Citation: 91 Ga.App. 738,87 S.E.2d 109
• Parties: SOUTHERN MILLS, Inc. v. H. E. NEWTON et al. D. W. ALLGOOD et al. v. SOUTHERN MILLS, Inc. et al
• Court: Georgia Court of Appeals

Page 109

87 S.E.2d 109

91 Ga.App. 738

SOUTHERN MILLS, Inc. v. H. E. NEWTON et al.

D. W. ALLGOOD et al. v. SOUTHERN MILLS, Inc. et al.

Nos. 35524, 35525.

Court of Appeals of Georgia, Division No. 2.

Feb. 25, 1955.

Rehearing Denied March 17, 1955.

Syllabus by the Court.

1. As to case No. 35525, the petition sets out a cause of action against the defendant Allgood Brothers for the reasons set forth in the corresponding division of the opinion, and the judgment of the trial court overruling the general demurrer is without error.

2(a) As to case No. 35524, the prime contractor, Henry Newton Company, is not liable under the allegations of this petition for the negligent acts of its subcontractor, Allgood Brothers, under the exception set forth in Code, § 105-502(3), as the wrongful act alleged against the subcontractor does not show a violation of a duty imposed by express contract upon the employer.

(b) Nor can it be said that such liability arises under the exception set forth in Code, § 105-502(6), the petition not alleging that the work of the independent contractor had been completed and accepted by the prime contractor or that the negligence alleged against the subcontractor was within the actual knowledge of the prime contractor.

(c) The allegations of the petition are, however, as against general demurrer, sufficient to show the relationship of principal and agent by implication as to the doing of an act alleged to constitute negligence by the defendant Allgood Brothers on behalf of the defendant Henry Newton Company, in connection with work not subcontracted by the latter to the former.

Southern Mills, Inc., filed an action in the Civil Court of Fulton County, for damages resulting from the flooding of its warehouse, against various individuals composing the partnerships of Allgood Brothers and Henry Newton Company. In substances, the action was predicated on the facts that Henry Newton Company had contracted with Fulton County to do certain work on a public street known as West By-Pass, including grading, paving, and draining, and the prime contractor subcontracted to the defendant Allgood Brothers all unclassified excavation on the project; that, at the time in question, the grading and curbing had been finished but the street had not been paved; that Henry Newton Company, simultaneously with subcontracting the unclassified excavation to Allgood Brothers, subcontracted other parts of the work to other subcontractors and retained certain portions of the work to do itself, and had inspectors within the area; that it furnished Allgood Brothers with certain logs, which the latter put up as a barricade along the line where West By-Pass intersects Stewart Avenue and Wells Street; that West By-Pass slopes down to the intersection of these streets, the lowest point of the area being a point on Wells 75 feet east of the intersection where there are located two catch basins and a manhole entering the main sewer draining the area; that on June 25, 1953, a heavy rain fell, which funneled down the hill along the exposed bare clay surface of the 88-foot right of way of West By-Pass between the curbs at its sides, which were 8 inches in height, 'building up a mill race of water rushing downward between the sides of the West By-Pass toward Wells and toward the lowest point on Wells where said two catch basins were located. Said rain was heavy, but not as heavy as other rains which had fallen in the vicinity in the past, and was not unprecedented or too heavy to have been foreseen by the exercise of ordinary care.' The inlets to the catch basins are depressed slightly below the gutters; the rushing water carried off five heavy logs from the barricade and deposited them over the inlets, where they remained, catching dirt and mud washed off the surface of the By-Pass, and blocked the catch basins, so that water rose in Wells Street to a height of 3 feet 4 inches over the tops of the catch basins, overflowed into the plaintiff's warehouse located 68 yards east of the intersection, and flooded the warehouse floor throughout to a depth of about 6 inches, doing described damage to the plaintiff's property located therein.

General demurrers to the petition were separately filed by the two groups of defendants composing the defendant partnerships. In case No. 35524 error is assigned by the plaintiff Southern Mills, Inc., on the judgment sustaining the general demurrer of Henry Newton Company, and in case No. 35525 error is assigned by the defendant Allgood Brothers on the overruling of its general demurrer to the petition.

Case No. 35524:

C. Baxter Jones, Jr., Sutherland, Asbill & Brennan, Atlanta, for plaintiff in error.

Geo. A. Smith, Gambrell, Harlan, Barwick, Russell & Smith, Atlanta, for defendant in error.

Case No. 35525:

,T. J. Long, Ben Weinberg, Jr., Atlanta, for plaintiff in error.

C. Baxter Jones, Jr., Sutherland, Asbill & Brennan, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. Negligence is predicated against the subcontractor Allgood Brothers on the theory that (1) it should, in the exercise of ordinary care, have anticipated that the amount of rainfall which actually fell would have been likely to fall in that vicinity; (2) it should, in the exercise of ordinary care, have anticipated that the amount of rainfall which actually accumulated along the bare, sloping surface of the West By-Pass along which work was progressing would be sufficient, if there were no means for it to drain away, to overflow at the low point at the foot of the hill and cause property damage; and (3) charged with this knowledge, it erected the barricade so negligently that the water running down over the excavated surface washed the logs over the catch basins, stopped them up, and caused the flood condition which injured the plaintiff's property. It is alleged that the grading increased by about two acres the area which drained through the catch basins.

As stated in Whitaker v. Jones, McDougald, Smith, Pew Co., 69 Ga.App. 711, 716, 26 S.E.2d 545, 548: 'The rule well affirmed by the authorities is that under the law a person is required to anticipate or foresee and guard against what usually happens or is likely to happen; but this rule does not require him to anticipate or foresee and provide against that which is unusual and not likely to happen, or, in other words, that which is only remotely and slightly probable. The general test in such cases is not whether the injurious result or consequence was possible, but whether it was probable; that is, likely to occur according to the usual experience of persons. A wrongdoer cannot be held responsible for a consequence which is merely possible according to occasional experience, but only for a result or consequence which is probable according to the ordinary and usual experience of mankind."

It is altogether within the ordinary and usual experience of mankind that water seeks its lowest level; that, when its outlet at that lowest level is obstructed, it will spread out in the immediate vicinity of such outlet; and also that debris or logs carried along by running water would naturally be deposited so as to obstruct the outlet if they were of a size sufficient to prevent being carried through it. As to the duty to anticipate the particular rain in question, it is alleged that it was no more heavy or intense than common experience of those working and living in the vicinity should have led them to expect, and no more intense than other rains occurring several times a year in the general vicinity; that the defendants should have known these facts both by general physical inspection of the surface of the slope, and also because of their special knowledge, they being experts and men of experience in the methods and results of excavation and grading involved in such work; that the rain, although heavy, was not as heavy as other rains, and was not unprecedented or too heavy to have been foreseen by the exercise of ordinary care. These allegations are sufficient to make a jury question as to (a) whether the rain was not within that category of unforeseeable acts of nature unmixed with human acts of and classified as an act of God unmixed with and unaffected by human agency; and (b) whether because of previous occurrences of other like rains--taking into account the special knowledge of the defendants--the defendants in the exercise of...