Stone Mountain Industries, Inc. v. Bennett, 41512

• Decision Date: 30 September 1965
• Docket Number: No. 41512,No. 2,41512,2
• Citation: 145 S.E.2d 591,112 Ga.App. 466
• Parties: STONE MOUNTAIN INDUSTRIES, INC. v. Mrs. Thomas BENNETT
• Court: Georgia Court of Appeals

Page 591

145 S.E.2d 591

112 Ga.App. 466

STONE MOUNTAIN INDUSTRIES, INC. v. Mrs. Thomas BENNETT.

No. 41512.

Court of Appeals of Georgia, Division No. 2.

Sept. 30, 1965.

Rehearing Denied Oct. 18, 1965.

Syllabus by the Court

Where a tenant, in violation of fire prevention ordinances, creates a dangerous situation, he cannot escape liability for the destruction by fire of the landlord's premises because the 'spark' which starts the fire is furnished by a third person.

Mrs. Thomas Bennett sued Stone Mountain Industries, Inc. to recover the cost of restoring a building destroyed by fire. The petition alleged that the plaintiff, as owner, had leased the building to the defendant who was operating a furniture manufacturing plant therein at the time the building was destroyed. The petition was in two counts. Count 1 alleged that the fire was started by an ash from a cigarette and count 2 alleged that the fire was started by a spark from defective wiring on a truck parked at the loading entrance of the building. General and special demurrers to the petition as amended were overruled and the defendant now assigns error on such judgment.

Fine & Rolader, D. W. Rolader, Atlanta, for plaintiff in error.

Long, Weinberg & Ansley, Powell, Goldstein, Frazer & Murphy, A. Gregg Loomis, Atlanta, for defendant in error.

NICHOLS, Presiding Judge.

1. The defendant filed numerous special demurrers as well as general demurrers to the petition. The defendant argues the general demurrers but as to the special demurrers states in its brief: 'With respect to the special demurrers to the petition, we respectfully submit that these demurrers are sufficiently self-explanatory and we feel it unnecessary to burden the court with detailed argument with respect to them. We contend that each and every one of the special demurrers are good and should be sustained.'

"Assignments of error not insisted upon by counsel in their briefs or otherwise argued in this court will be treated as abandoned. A mere recital in the brief of counsel of the existence of an assignment of error, without argument or citation of authorities in its support, is insufficient to save it from being treated as abandoned. Head v. Lee, 203 Ga. 191(5), 45 S.E.2d 666, and citations.' The B-X Corporation v. Jeter, 210 Ga. 250(4), 78 S.E.2d 790.' Stuart v. Berry, 107 Ga.App. 531, 537, 130 S.E.2d 838, 843. See also Muse v. Hall, 18 Ga.App. 651(3), 90 S.E. 222. Accordingly, the questions presented as to the defendant's general demurrers are the sole questions presented for decision and the defendant's special demurrers are treated as abandoned.

2. Both counts of the plaintiff's petition allege various acts on the part of the defendant which 'set up' the premises for a fire and in each count alleged a different 'spark' as the force which ignited the fire. The gist of the plaintiff's petition is the original negligence in 'setting up' the premises for a fire--not the permitting of the spark. No negligence is charged to the defendant because the truck had defective wiring to because an employee was smoking, but rather the acts of the defendant, which are alleged to be negligence, created a situation, which combined with the 'spark,' caused the damage to the plaintiff's property. In Stuart v. Berry, supra, it was held: 'Upon the principle that persons are responsible for the usual and natural results of their acts, one may be liable for an injury resulting from his negligence although he could not reasonably have anticipated the particular injury inflicted, or that the particular person would be injured. Mitchell v. J. S. Schofield's Sons Co., 16 Ga.App. 686, 85 S.E. 978. If his negligence puts in motion other causal forces which are the direct natural and probable consequences of his original act, then he may be liable although he did not foresee the precise forces through which his negligence would travel and act upon the injured person. Louisville & N. R. Co. v. Ellis, 54 Ga.App. 783, 189 S.E. 559. For the act of another to insulate the first wrongdoer from the result of his negligence, it must appear that the second act is in and of itself sufficient to stand as the cause of the misfortune. Atlanta & W. P. R. Co. v. Reese, 28 Ga.App. 275, 110 S.E. 750; Spires v. Goldberg, 26 Ga.App. 530, 106 S.E. 585. 'One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of a third person may have contributed to the result.' 38 Am.Jur. 731, Negligence, § 73. The defendant here must be presumed to have known that electricity travels along matal surfaces; that unless properly insulated the electric charge would travel to...