Yarbrough v. Cantex Mfg. Co., 37028
| Decision Date | 25 February 1958 |
| Docket Number | No. 37028,No. 1,37028,1 |
| Citation | 103 S.E.2d 138,97 Ga.App. 438 |
| Parties | Howard YARBROUGH et al. v. CANTEX MANUFACTURING COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The trial court did not err in rendering the judgments complained of.
Howard Yarbrough, Herald Yarbrough and Mrs. A. M. Yarbrough, doing business as Yarbrough Brothers, brought an action against Cantex Manufacturing Company, a corporation, to recover for certain alleged acts of negligence on the part of the defendant that allegedly resulted in the destruction of the plaintiffs' store building and its contents by fire. A special demurrer to one of the allegations of negligence contained in the petition as finally amended was sustained, evidence proffered by the plaintiffs was excluded on the defendant's objection, and at the close of the plaintiffs' evidence the defendant's motion for nonsuit was granted. The plaintiffs, in their bill of exceptions, except to the foregoing judgments adverse to them.
Pittman, Kinney & Pope, Dalton, A. Mims Wilkinson, Jr., Atlanta, for plaintiff in error.
Hugh M. Dorsey, Jr., Jones, Williams, Dorsey & Kane, Atlanta, A. J. Henderson, Canton, for defendant in error.
1. The plaintiffs were seeking to recover from the defendant corporation damages resulting from loss by fire of their store building and its contents resulting from a fire which spread from the defendant's place of business to their place of business which was located next door. The plaintiffs' action was not based on the negligence of the defendant corporation in permitting the fire to start, but on the contrary, was based on the alleged negligence of the defendant which resulted in the fire spreading to the plaintiffs' store, since it was positively alleged that the origin of the fire was not known.
It was alleged that the fire started on the defendant's premises and spread to the plaintiffs' premises, that such fire started under a loading platform at the rear of the defendant's place of business, that above the ramp, or loading platform under which the fire started there was located an intake ventilation fan, which was in operation at the time the fire started and which forced fresh air into the defendant's building and at the front of the building, on the same floor, there was an exhaust fan exhausting air out of the defendant's building, so that a forced draft was created throughout the first or street floor of said building. In connection with the above allegations the following allegations of negligence were contained in the plaintiffs' petition: 'o, In failing to have automatic cutoffs on said ventilation fans described * * * and the other ventilation fans in said building, which would stop said fans in the event of a fire in said building.' The defendant demurred to such allegation of negligence as follows: 'The defendant demurs specially to subparagraph 'o' * * * on the ground that the allegation that this defendant was negligent in failing to have automatic cut-offs on the ventilating fans referred to therein, is a mere conclusion of the pleader contrary to law and to fact for the reason that the defendant was under no legal duty to equip such fans with any such automatic cut-offs, and for the further reason that the alleged failure of this defendant so to do was in any event too remote a contributing cause of said fire to have been anticipated or foreseen by the defendant in the exercise of ordinary care, and said allegations are irrelevant and immaterial and prejudicial to the defendant.' The above demurrer was sustained, and it is to this judgment that the plaintiffs except.
In Peggy Ann of Georgia, Inc., v. Scoggins, 86 Ga.App. 109, 115, 71 S.E.2d 89, 95, Judge Worrill went into the law very thoroughly as to what negligence a defendant may be charged with, and it may be summed up in the following language quoted by Judge Worrill: 'One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable.' See also Whitaker v. Jones, McDougald, Smith, Pew Co., 69 Ga.App. 711, 26 S.E.2d 545, and citations.
In the present case there was no allegation that the defendant corporation was required by law to have 'automatic cut offs' on such fans, nor can this court take judicial notice that exhaust fans are, or are not, equipped with such cut-offs by ordinarily prudent persons, although it may take judicial notice that large numbers of 'exhaust' and 'intake' fans are in use throughout the State.
Therefore the question here resolves itself to a question of whether under the allegations of the plaintiffs' petition the defendant corporation could be held to have...
To continue reading
Request your trial
-
Standard Oil Co. v. Harris, s. 44523
...Light Co., 84 Ga.App. 665, 67 S.E.2d 151; Peggy Ann of Georgia, v. Scoggins, 86 Ga.App. 109, 116, 71 S.E.2d 89; Yarbrough v. Cantex Mfg. Co., 97 Ga.App. 438(1), 103 S.E.2d 138; Anderson v. B. F. Goodrich Co., 103 Ga.App. 453, 456, 119 S.E.2d 603; Daneker v. Megrue, 114 Ga.App. 312, 151 S.E.......
-
Meeks v. Lunsford
...Martin v. Baldwin, 215 Ga. 293, 110 S.E.2d 344; Knudsen v. Duffee-Freeman, Inc., 95 Ga.App. 872, 99 S.E.2d 370; Yarbrough v. Cantex Mfg. Co., 97 Ga.App. 438, 103 S.E.2d 138; Hawkins v. Jackson, 97 Ga.App. 525(3), 103 S.E.2d 634. It is true that a witness may testify to the ultimate fact as ......
-
Jackson v. Rodriquez
...20 S.E.2d 767 (1942). Accord, Peggy Ann of Ga. Inc. v. Scoggins, 86 Ga.App. 109, 116, 71 S.E.2d 89 (1952); Yarbrough v. Cantex Mfg. Co., 97 Ga.App. 438, 440, 103 S.E.2d 138 (1958). In the case at bar, medical experts testified that there may be no direct medical link between aspirin and ulc......
-
Sanders v. Bowen
...the basis of his report. In such circumstances the proffered testimony was hearsay and properly excluded. Yarbrough v. Cantex Mfg. Co., 97 Ga.App. 438, 441(2), 103 S.E.2d 138 (1958). See Mitchell v. State, 254 Ga. 353, 355(5a), 329 S.E.2d 481 (1985); Coastal Health Svc. v. Rozier, 176 Ga.Ap......