Opinion
35524, 35525.
DECIDED FEBRUARY 25, 1955. REHEARING DENIED MARCH 17, 1955.
Action for damages. Before Judge Parker. Fulton Civil Court. November 18, 1954.
C. Baxter Jones, Jr., Sutherland, Asbill Brennan, for Southern Mills, Inc. Geo. A. Smith, Gambrell, Harlan, Barwick, Russell Smith, for Henry Newton Co. et al.
T. J. Long, Ben Weinberg, Jr., for Allgood Bros. et al.
1. As to case No. 35535, 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 the 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.
DECIDED FEBRUARY 25, 1955 — REHEARING DENIED MARCH 17, 1955.
Southern Mills, Inc., filed an action in the Civil Court of Fulton Court, for damages resulting from the flooding of its warehouse, against various individuals composing the partnerships of Allgood Brothers and Henry Newton Company. In substance, 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 classified 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.
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): "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 according to occasional experience, but only for a result of 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 negligence, 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 ordinary care should have anticipated that such a rainfall might occur and the physical consequences of its occurrence. See Goble v. L. N. Railroad Co., 187 Ga. 243 (4) ( 200 S.E. 259); Sampson v. General Electric Supply Corp., 78 Ga. App. 2 (3) ( 50 S.E.2d 169); Central Ga. Electric c. Corp. v. Heath, 60 Ga. App. 649, 652 ( 4 S.E.2d 700).
In view of the allegation that the logs blocked the catch basins, decreasing their capacity, and that, with the escape of water thus retarded by the logs, the water "as a result of all of the foregoing" rose to such height that it overflowed into the plaintiff's warehouse — it cannot be effectively argued that the petition, even construed strongly against the pleader, affirmatively shows that the flooding would have occurred whether or not the defendant was negligent in placing the logs. The petition distinctly alleges the contrary proposition, which is that the water rose as a result of the blocking of the outlet. Accordingly, a jury question is present, both as to whether the defendant was negligent, and as to whether such negligence proximately resulted in the plaintiff's injury. The trial court did not err in overruling the general demurrer to the petition filed by the defendant subcontractor, Allgood Brothers.
2. What has been said above relating to the alleged negligence of Allgood Brothers as the proximate cause of the damages sustained applies with equal force to Henry Newton Company if, but only if, the latter company is liable for negligence of the former under any of three theories propounded by the plaintiff, Southern Mills, Inc., which are here discussed.
(a) First, it is contended that the exception embodied in Code § 105-502 (3) renders an employer liable for the negligence of a contractor where the wrongful act is the violation of a duty imposed by express contract upon the employer. It is alleged that "the express contract between Fulton County and Henry Newton Company required the defendant Henry Newton Company to do all of the work `in accordance with the laws of the State of Georgia,' and that the laws of the State of Georgia required the defendant Henry Newton Company to maintain a safe and proper barricade which would not harm the public or surrounding land owners." As no specific law is cited requiring a contractor to maintain safe and proper barricades, it is assumed that this allegation refers to the legal duty common to all people, and here specifically made a contract obligation, to refrain from injuring others, and to use ordinary care to that end, which duty applies equally to the erection of barricades as to other phases of the work. See Doby v. W. L. Florence Construction Co., 71 Ga. App. 888 ( 32 S.E.2d 527). Since this duty relates merely to giving warning to others who might be injured through failure to do so, but since this warning may be given, where necessary, in any effective manner, the act of the subcontractor in negligently erecting barricades would be a collateral tort for which the prime contractor would not be liable (see Dekle v. Southern Bell Tel. c. Co., 208 Ga. 254, 258, 66 S.E.2d 218; Atlanta Fla. R. Co. v. Kimberly, 87 Ga. 161, 13 S.E. 277, 27 Am. St. R. 231), and not a specific contract obligation coming within this exception. Accordingly, liability may not be assessed under this theory.
(b) Another theory under which the plaintiff contends that it is entitled to recover from the defendant Henry Newton Co. is that, while the defendant Allgood Brothers was the subcontractor of this defendant, and while the negligence of Allgood Brothers was the proximate cause of the damage, the defendant Henry Newton Company, as the prime contractor, is nevertheless less liable under the exception set out in Code § 105-502 (6), providing in substance for such liability where the employer ratifies the unauthorized wrong of the independent contractor. A proper interpretation of the petition, however, discloses that the logs furnished by the prime contractor to the subcontractor to be used as a barricade were not a part of the contractual working agreement, that the work of the independent contractor had not been completed and accepted by the prime contractor, and that the negligence of the subcontractor in placing the logs as a barricade was not known to the prime contractor. See, in this connection, Atlanta Florida R. Co. v. Kimberly, supra, at page 172. Ratification of the wrongful act may result from acceptance of the work on the theory that acceptance shifts the responsibility for maintaining the work in its defective condition to the employer. Hickman v. Toole, 31 Ga. App. 230 (2) ( 120 S.E. 438). Even acceptance of benefits will not ratify an independent collateral tort committed in procuring the benefit, as the ratification must be, not of the contract, but of the unauthorized wrong. Calvert v. Atlanta Hub Co., 37 Ga. App. 295, 298 ( 139 S.E. 917). Ordinarily, in order to ratify an act, one must have knowledge of the act. See Turner v. Joiner, 77 Ga. App. 603 (4b) ( 48 S.E.2d 907).
Nor is ratification shown by the fact, standing alone, that the employer or contractor furnished the materials for the work to the employee or subcontractor, where negligence in the use of the materials by the subcontractor, rather than a defect inherent therein, causes the damage. See Lampton v. Cedartown Co., 6 Ga. App. 147 (2) ( 64 S.E. 495); Edmondson v. Town of Morven, 41 Ga. App. 209 (3, 4) ( 152 S.E. 280). No cause of action is set out under this theory.
(c) However, while it appears from the above that Henry Newton Company is not liable under any exception to the general rule that ordinarily employers are not liable for the negligence of independent contractors, nevertheless, if the petition sets out a cause of action on any theory, it is not subject to general demurrer. Citizens Southern Bank v. Union Warehouse c. Co., 157 Ga. 434 ( 122 S.E. 327). In that connection, it is contended that the allegations of the petition are sufficient to show that the logs furnished by the defendant Henry Newton Company to the defendant Allgood Brothers for the purpose for which they were used were furnished for the benefit of both defendants in connection with the discharge of a duty jointly owed to the public; that the negligent use of these logs by the defendant Allgood Brothers and for its benefit as well as the benefit of the defendant Henry Newton Company constituted a joint undertaking which created a relationship establishing liability of the defendant Henry Newton Company, equivalent to that which exists under a joint venture or agency relationship in connection with this particular operation, the same not being part of the work contracted to be done. Since the petition alleges that both defendants had dominion over the area blocked off by the barricade of logs, and that each was doing work pursuant to their respective contracts within this area, there is nothing inconsistent between the relationship of prime and subcontractor as to the work specified in the contract, and that of principal and agent with reference to the putting up of the barricade by the defendant Allgood Brothers on behalf of the defendant Henry Newton Company. As between these parties, there could be a relationship of prime and subcontractor in connection with the work specified to be done under the terms of the contract and also joint responsibility creating a liability in the nature of an agency relationship with respect to a separate operation incident to but not a part of the work specified in the contract. Accordingly, the allegations of the petition, to the effect that the defendant Henry Newton Company was in general possession, dominion, and control of the premises and was itself doing work thereon, that this defendant owed a duty to the general public to set up and furnish safe barricades, and that the logs which were used by the defendant Allgood Brothers in the barricade were furnished by the defendant Henry Newton Company for this purpose, resulting in the plaintiff's damages, state a cause of action as against the general demurrer of the defendant Henry Newton Company.
Although the amendment to the petition alleges that the defendant Henry Newton Company is liable "regardless of whether the defendant Allgood Brothers were agents or an independent contractor of the defendant Henry Newton Company," the theory of liability under the relationship of principal and agent is not repudiated by the amendment, as it was by the language of paragraph 15 (d) of the original petition, which language was later stricken by the amendment. The foregoing allegations of the petition are sufficient to show that, with regard to the placing of the barricade, the defendant Allgood Brothers acted not only in its own behalf but in behalf of the codefendant, and that in this latter respect it was acting as agent of the defendant Henry Newton Company. In Larkins v. Boyd, 205 Ga. 69, 72 ( 52 S.E.2d 307), it is stated: "This relation [of principal and agent] arises when one person authorizes another to act for him, or subsequently ratifies the acts of another in his behalf. Code § 4-101. Existence of an agency may be established by proof of circumstances, apparent relations, and conduct of the parties. Cable Company v. Walker, 127 Ga. 65 ( 56 S.E. 108)." Code § 4-101 provides in part that the relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him. The petition here sets out facts sufficient, if proved, to show such implied authorization, for which reason the trial court erred in sustaining the general demurrer in case No. 35524.
Judgment reversed as to case No. 35524 and affirmed as to No. 35525. Gardner, P. J., and Carlisle, J., concur.