Standard Oil Co. v. Harris, s. 44523

• Decision Date: 05 December 1969
• Docket Number: 3,44549,2,Nos. 44523,Nos. 1,s. 44523,s. 1
• Citation: 172 S.E.2d 344,120 Ga.App. 768
• Parties: STANDARD OLD COMPANY v. Lena Mae HARRIS et al. Randall BOLDEN et al. v. Lena Mae HARRIS et al
• Court: Georgia Court of Appeals

Page 344

172 S.E.2d 344

120 Ga.App. 768

STANDARD OLD COMPANY v. Lena Mae HARRIS et al.

Randall BOLDEN et al. v. Lena Mae HARRIS et al.

Nos. 44523, 44549.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Dec. 5, 1969.

Syllabus by the Court

1. Negligence on the part of the defendant Bolden was eliminated by the holding in Bolden v. Barnes, 117 Ga.App. 862, 162 S.E.2d 307. That being true, no verdict against him could stand and his motion for summary judgment should have been sustained.

2. Since it was held in Bolden v. Barnes, 117 Ga.App. 862, 162 S.E.2d 307 supra, that the act of Barnes was the cause of injuries suffered from the event, the alleged defective design of the building by Standard Oil Company was eliminated as a cause of the injuries suffered.

3. A cause that necessarily sets other causes in operation is the proximate cause; a cause which is merely incidental is not the proximate and responsible one.

4. A defect in construction that is clearly patent, affording the tenant equal or superior knowledge of it, places on the tenant a duty to abstain from using portions of the premises fraught with danger, and use thereof by him amounts to contributory negligence which will preclude a recovery by him, and under certain circumstances will preclude members of his family, his servants, employees and his guests.

5. To be actionable the result of an act of a defendant must have been one that would have been reasonably foreseeable by a reasonably prudent person. An event is not reasonably foreseeable if it is one in the nature of an extraordinary coincidence, or which would not have happened save in exceptional circumstances, or is unusual and unlikely to happen, or is a rare event, or where other and contingent experiences preponderate largely in causing the injurious effect.

6. The rules of evidence apply in summary judgment proceedings. Hearsay and conclusory statements in affidavits submitted in support of or in opposition to motions are to be disregarded.

7. Where injuries resulting in the death of a decedent were caused by his own act, or did not result from culpable negligence or another, his administrator cannot recover therefor.

8. The plaintiff, Miss Harris, is entitled to recover from the administratrix of Barnes' estate, since it was his intervening act that caused her injuries, but not against other named defendants.

For a factual statement see Bolden v. Barnes, 11m Ga.App. 862, 162 S.E.2d 307. Miss Lena Mae Harris, who was doing bookkeeping work for Bolden and was present in the place of business when the event occurred, suffered injuries from the fire and she sues Bolden, the administratrix of Barnes and Standard Oil Company, seeking recovery therefor. Mrs. Barnes, as administratrix of her husband's estate, in a cross complaint against Bolden and Standard Oil seeks recovery of funeral expenses. In both the action of Miss Harris and the cross complaint of Mrs. Barnes recovery is sought for alleged defects in the construction of the building, known to Standard Oil because it constructed the building and to Bolden because he, as lessee, took it with knowledge of the alleged defects. The defect alleged is that the building was designed for the use of an open stove for heating, rendering the place dangerous because it should have been foreseen that gasoline might come in contact with it and thus cause injury to others.

King & Spalding, Kirk McAlpin, Jack H. Watson, Jr., Atlanta, for Standard Oil Co.

Pittman & Kinney, John T. Avrett, Dalton, for Randall Bolden and others.

John E. Wiggins, Ringgold, Shaw, Stolz & Fletcher, Irwin Stolz, Jr., LaFayette, Frank M. Gleason, Rossville, for appellees.

EBERHARDT, Judge.

1. The holding in Bolden v. Barnes, 117 Ga.App. 862, 162 S.E.2d 307 is controlling. There it was settled that 'the cause of decedent's death was his removal of the gas cap simultaneously with the application of compressed air to the fuel line by the defendant's (Bolden's) employee which caused gasoline to spew out at the cap onto the decedent and into his eyes, causing him to retreat backwards into the kerosene heater and ignite.'

This ruling, as a precedent which we must follow until and unless it is overruled (see Code § 6-1611; Joseph v. State, 148 Ga. 166, 96 S.E. 229), eliminates any negligence on the part of the defendant Bolden as the cause of the event resulting in the death of Barnes and the injury of Miss Harris, and a verdict against him could not stand. Ross v. Central R. & Banking Co., 59 Ga. 299; Bray v. Westinghouse Elec. Corp., 103 Ga.App. 783, 120 S.E.2d 628.

2. There are allegations that the construction of the station by Standard Oil Company, its owner, was defective. It is gravely doubted that any defect in the construction is alleged. Nor does it appear that the station was not constructed in accordance with the general usages of those engaged in that business. As to that see Pettit v. Stiles Hotel Co., 97 Ga.App. 137, 102 S.E.2d 693; Kahn v. Graper, 114 Ga.App. 572, 575, 152 S.E.2d 10; Taff v. Harris, 118 Ga.App. 611, 164 S.E.2d 881. However, this was a matter that movant should have dealt with in connection with the motion, and its failure to do so leaves the question unresolved. Sanfrantello v. Sears, Roebuck & Co., 118 Ga.App. 205, 163 S.E.2d 256; Colonial Stores, Inc. v. Turner, 117 Ga.App. 331, 333, 160 S.E.2d 672.

But if it be conceded that a defect in construction is alleged, this was not the cause of the injuries, and this has been adjudicated, and the rule of stare decisis again comes into play. As to Barnes the cause was his own act of negligence, and as to Miss Harris, it was the intervening act of Barnes in negligently removing the gas cap and allowing the gasoline to be blown over himself from the tank. He knew that compressed air was being applied to the fuel line and should have known that this would cause the gasoline to be blown out of the tank if the cap were removed. That was the holding in Bolden v. Barnes. 'It is not intervening consequences, but intervening causes which relieve.' Southern Ry. Co. v. Webb, 116 Ga. 152, 156, 42 S.E. 395, 396, 59 L.R.A. 109.

3. More than half century ago Judge Powell observed: 'We have read of 'proximate cause' and of 'natural consequence,' and of other phrases expressing the same general idea, until eyes have grown weak with reading and brain fagged out with trying to understand what learned judge after learned judge, and learned law-writer after learned law-writer have said on the subject; and yet we realize that we have not pursued the subject further than to examine only a small percentage of the cases and of the text-books that we might have read. But the thought comes to us that one may live in sight of the ocean for a lifetime, may sail upon it, may know its moods in the calm and in the storm, and yet not be able to answer some simple question as to a cup of cold water.' Atlantic Coast Line R. Co. v. Daniels, 8 Ga.App. 775, 778, 70 S.E. 203, 204. The only difference today is that we have a good deal more text material and infinitely more case law on the subject.

'The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.' Savannah Electric Co. v. Wheeler, 128 Ga. 550, 562, 58 S.E. 38, 43, 10 L.R.A.,N.S., 1176, and Dunbar v. Davis, 32 Ga.App. 192, 193, 122 S.E. 895. And see Godwin v. Atlantic Coast Line R. Co., 120 Ga. 747, 751, 48 S.E. 139; Eberhart v. S.A.L. Ry. Co., 34 Ga.App. 49, 54, 129 S.E. 2. 'If damages are traceable to an act of negligence, but are not its legal or material consequence, or if other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote and contingent to be the basis of a recovery.' Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 439, 99 S.E.2d 209, 212, and cases cited.

While the injuries here may be 'traceable' to the alleged defects in the construction, it is clear, under the ruling made in Bolden v. Barnes, 117 Ga.App. 862, 162 S.E.2d 307, supra, that the taking of the cap from the gasoline tank when it was being placed under pressure preponderates as the cause of the injurious effects.

Supporting this view are: Mayor and Council of Macon v. Dykes, 103 Ga. 847, 31 S.E. 443; Central of Ga. Ry. Co. v. Price, 106 Ga. 176, 32 S.E. 77, 43 L.R.A. 402; Central of Ga. Ry. Co. v. Edwards, 111 Ga. 528, 36 S.E. 810; Andrews & Co. v. Kinsel, 114 Ga. 390, 392, 40 S.E. 300; Southern Transportation Co. v. Harper, 118 Ga. 672, 45 S.E. 458; Postal Telegraph-Cable Co. v. Kelly, 134 Ga. 218, 67 S.E. 803; Georgia Southern & Fla. Ry. Co. v. Corry, 149 Ga. 295, 99 S.E. 881; Blakely v. Johnson, 220 Ga. 572, 140 S.E.2d 857; Burnett v. Rome Ry. & Light Co., 7 Ga.App. 323, 66 S.E. 803; City of Albany v. Brown, 17 Ga.App. 707, 88 S.E. 215; Harper v. Fulton Bag & Cotton Mills, 21 Ga.App. 322, 94 S.E. 286; Higginbotham v. Rome Ry. & Light Co., 23 Ga.App. 753, 99 S.E. 638; Pitchford v. Stoddard, 35 Ga.App. 276, 133 S.E. 59; Cochran v. Wadley Southern Ry. Co., 44 Ga.App. 208, 160 S.E. 706; Cain v. Georgia Power Co., 53 Ga.App. 483, 186 S.E. 229; Pippin v. J. Regenstein Co., 58 Ga.App. 819, 822, 199 S.E. 790; Seymour v. City of Elberton, 67 Ga.App. 426, 20 S.E.2d 767; Williams v. Southern Ry. Co., 76 Ga.App. 559, 46 S.E.2d 593; Irwin v. Georgia Power & Light Co., 84 Ga.App. 665, 67 S.E.2d 151; Davis v. City of Toccoa, 93 Ga.App. 155, 91 S.E.2d 89.

4. If there was a 'defect' in the construction, as claimed, it was certainly patent, the tenant Bolden having equal or better knowledge of it, ¹ or opportunity therefor, and 'It is the duty of the tenant 'to abstain from using any...