Summary
In Gulf Oil Corp. v. Stanfield, 213 Ga. 436 (99 S.E.2d 209) the record shows clearly that an act of a third person was the direct and proximate cause of the damage.
Summary of this case from Griner v. GrooverOpinion
19729.
SUBMITTED JUNE 10, 1957.
DECIDED JULY 3, 1957. REHEARING DENIED JULY 22, 1957.
Certiorari to Court of Appeals — 95 Ga. App. 349.
Harris, Russell, Weaver Watkins, for plaintiff in error.
W. T. Roberts, Martin, Snow Grant, Hollis Fort, Jr., A. C. Felton, III, W. F. Blanks, contra.
The trial court properly sustained the general demurrers of the defendant Gulf Oil Corporation, and the Court of Appeals erred in reversing this judgment.
SUBMITTED JUNE 10, 1957 — DECIDED JULY 3, 1957 — REHEARING DENIED JULY 22, 1957.
Charles H. Stanfield filed an action for damages for the homicide of his minor daughter against C. B. Johnson, Sr., Wilbur Rodgers, and Gulf Oil Corporation. The general demurrers of Gulf Oil Corporation were sustained by the trial judge. The Court of Appeals reversed this judgment. Stanfield v. Johnson, 95 Ga. App. 349 ( 98 S.E.2d 106). This defendant's application for certiorari was granted by this court.
From the petition it appears: At the time of the injuries complained of, the plaintiff's daughter was a guest in the car of C. B. Johnson, Sr., which was being used and operated by his son, C. B. Johnson, Jr. The car of the defendant Johnson was parked on the unpaved portion of intersecting highways 49 and 26, when it was struck by a pick-up truck which was being operated at an unlawful rate of speed by Grady Rodgers, the minor son of the defendant Wilbur Rodgers. The car of the defendant Johnson was forced into a steel pole erected by Gulf Oil Corporation, which steel pole stopped the forward movement of the pick-up truck and the car, causing the plaintiff's daughter to be thrown through the door of the car, receiving the injuries from which she died. "This illegal erection of the sign on the steel pole by the defendant Gulf Oil Corporation acted as an invitation to the defendant Johnson to illegally park his car on the right of way at the point in question."
The petition specifies the alleged negligence of Gulf Oil Corporation as follows: "Gulf Oil Corporation was negligent in the erection and maintenance of the sign suspended from a steel pole on the right-of-way at the point of intersection of State Routes numbers 49 and 26, which is negligence per se. In illegally erecting and maintaining a sign on the steel pole solidly embedded in the earth, constituting a hazard to the traveling public and a dangerous obstruction at the point involved in this controversy."
A breach of duty to the State does not necessarily involve a breach of duty to others. Hence the violation of a penal statute can not be relied upon as actionable negligence, unless such violation is the proximate cause of the injury.
"The mere fact that the plaintiff on the one hand, or the defendant on the other, was engaged in violating the law in a given particular, at the time of the happening of the accident, will not bar the right of action of the former, nor make the latter liable to pay damages, unless such violation of law was the efficient cause of the injury." Central of Ga. Ry. Co. v. Moore, 149 Ga. 581, 583 ( 101 S.E. 668). In the above case it was held that the failure of a person to obtain a license for a motor vehicle would not render the person a trespasser or bar his right of recovery against a railway company for negligence.
In Georgia Power Co. v. Jones, 54 Ga. App. 578, 587 ( 188 S.E. 566), it was said that the failure to obtain a license for a car operated by the plaintiff did not constitute contributory negligence, and had no causal relation to the injuries sustained by him. In Aycock v. Peaslee-Gaulbert Paint Varnish Co., 60 Ga. App. 897 ( 5 S.E.2d 598), it was said that operating an automobile without a driver's license is actionable negligence only when there is a proximate causal connection between the violation and the injury complained of. To the same effect see Windsor v. Chanticleer Co., 89 Ga. App. 116, 118 ( 78 S.E.2d 871).
In Atlanta, B. C. R. Co. v. Smith, 43 Ga. App. 457, 459 ( 159 S.E. 298), it was said that the fact that a motor vehicle was being operated at a speed prohibited by statute would not show, as a matter of law, that the negligence of the driver was the proximate cause of his damage. In Andrews v. Lofton, 80 Ga. App. 723 ( 57 S.E.2d 338), it was said that the absence of a license to practice medicine will not of itself authorize an inference of negligence where one attempts to operate upon another and injures him. In Hudgens v. Douglas, 56 Ga. App. 877 ( 194 S.E. 398), it was said that a violation of the statute in failing to register a trade name had no causal relation to the injury complained of.
Code § 95-2002, cited by the Court of Appeals in the present case, is a penal statute prohibiting the erection of signs within rights-of-way of public highways. The violation of a penal statute is actionable negligence when the violation is the proximate cause of the injuries complained of, or where there is a proximate causal connection between the violation and the injury. The facts alleged must control, and not the conclusions of the pleader, in determining the proximate cause of the injuries alleged.
The allegation that "the illegal erection of the sign on the steel pole by the defendant Gulf Oil Corporation acted as an invitation to the defendant Johnson to illegally park his car on the right of way at the point in question," is not asserted as constituting an act of negligence on the part of the defendant, but if so charged, it would not authorize the ruling made by the Court of Appeals. It has long been the rule in this State that general allegations, consisting merely of a statement of conclusions, without averring the facts upon which the conclusions are based, are too indefinite to raise an issue. Jones v. Ezell, 134 Ga. 553 (5) ( 68 S.E. 303); Harper v. Lindsey, 162 Ga. 44, 47 ( 132 S.E. 639); Page v. Sansom, 184 Ga. 623, 626 ( 192 S.E. 203); Butler v. City of Dublin, 191 Ga. 551, 555 ( 13 S.E.2d 362); Marlin v. Hill, 192 Ga. 434 ( 15 S.E.2d 473); Fowler v. Southern Airlines, Inc., 192 Ga. 845, 850 ( 16 S.E.2d 897); Horton v. Sanchez, 57 Ga. App. 612, 618 ( 195 S.E. 873).
If it should be conceded, however, that the defendant Gulf Oil Corporation was negligent in the erection of the steel pole and sign, the plaintiff could not recover against this defendant. "If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrongdoer. Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered; but damages traceable to the act, but not its legal or natural consequence, are too remote and contingent." Code §§ 105-2008, 105-2009.
In Southern Ry. Co. v. Webb, 116 Ga. 152 (1) ( 42 S.E. 395, 59 L.R.A. 109), it was held: "While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act."
In the present case, the allegations of the petition show that, subsequently to the erection of its pole by the defendant Gulf Oil Corporation, two acts occurred resulting in the plaintiff's damages: first, the parking of the car at the particular time and place by the son of one of the defendants, and, second, the operation of a truck by the son of the other defendant, at an excessive and unlawful rate of speed, off of and beyond the paved surface of the highway, and into the parked car, and thus driving it into the pole of Gulf Oil Corporation. Such consequences could not reasonably have been anticipated by Gulf Oil Corporation, and its participation in the plaintiff's damages are too remote to be the basis of any recovery. From the allegations of the petition, it clearly appears that the intervening acts of the other two defendants must be said to be the proximate cause of the plaintiff's damages.
"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." Mayor c. of Macon v. Dykes, 103 Ga. 847, 848 ( 31 S.E. 443); 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); Williams v. Grier, 196 Ga. 327 ( 26 S.E.2d 698); Harper v. Fulton Bag Cotton Mills, 21 Ga. App. 322 ( 94 S.E. 286); Higginbotham v. Rome Ry. c. Co., 23 Ga. App. 753, 755 ( 99 S.E. 638); Gillespie v. Andrews, 27 Ga. App. 509, 510 ( 108 S.E. 906); Georgia Ry. Power Co. v. Bryans, 35 Ga. App. 713 ( 134 S.E. 787); Artope v. Central of Ga. Ry. Co., 38 Ga. App. 91 ( 143 S.E. 127); Morrison v. Columbus Transportation Co., 39 Ga. App. 708, 710 ( 148 S.E. 276); Kleinberg v. Lyons, 39 Ga. App. 774, 776 ( 148 S.E. 535); City of Atlanta v. Guice, 41 Ga. App. 146, 148 ( 152 S.E. 144); Cain v. State, 55 Ga. App. 376, 381 ( 190 S.E. 371); Wilson v. Capital Auto Co., 59 Ga. App. 834 ( 2 S.E.2d 147); Wright v. Southern Ry. Co., 62 Ga. App. 316, 320 ( 7 S.E.2d 793); Seymour v. City of Elberton, 67 Ga. App. 426, 433 ( 20 S.E.2d 767); Southeastern Stages v. Abdella, 75 Ga. App. 38 ( 41 S.E.2d 799); Irwin v. Georgia Power c. Co., 84 Ga. App. 665 ( 67 S.E.2d 151); Peggy Ann of Georgia, Inc. v. Scoggins, 86 Ga. App. 109, 115 ( 71 S.E.2d 89).
"In a suit for damages, where it appears upon the face of the plaintiff's petition that there intervened between the alleged negligence of the defendant and the damage sustained by the plaintiff the independent criminal act of a third person, which was the direct and proximate cause of the damage, the petition should be dismissed on general demurrer." Andrews Co. v. Kinsel, 114 Ga. 390 (2) ( 40 S.E. 300, 88 Am. St. R. 25); Daigrepont v. Teche Greyhound Lines, 189 Ga. 601 ( 7 S.E.2d 174, 127 A.L.R. 217); Rivers v. Weems, 208 Ga. 783, 784 ( 69 S.E.2d 756); Bowers v. Southern Ry. Co., 10 Ga. App. 367 (3) ( 73 S.E. 677); Gallovitch v. Ellis, 55 Ga. App. 780 ( 191 S.E. 384); Pinnell v. Yellow Cab Co., 77 Ga. App. 73 ( 47 S.E.2d 774).
In the present case it appears that the criminal act of a third person, which was the direct and proximate cause of the plaintiff's damage, to wit, the operation of a motor vehicle at an excessive and unlawful rate of speed, intervened between the alleged negligence of the defendant Gulf Oil Corporation and the damages sustained by the plaintiff, and the petition was properly dismissed as to this defendant on general demurrer.
Judgment reversed. All the Justices concur, except Wyatt, P. J., and Mobley, J., who dissent. Almand, J., concurs in the judgment only.