Hodge v. Dixon

167 S.E.2d 377, 119 Ga. App. 397, 1969 Ga. App. LEXIS 1112

• Court: Court of Appeals of Georgia
• Decided: March 14, 1969
• Docket: 43997
• Status: Published

Opinions

Deen, Judge.

Damages traceable to a tortious act, but not its legal or natural consequence, are too remote and contingent to be recoverable (¿Code § 105-2009) unless the original actor, whose act would not otherwise be the legal or natural cause of the damages, acts knowingly for the purpose of bringing about the injury. Code § 105-2010. Although under the notice provisions of the new Civil Practice Act it is only necessary to set out “a short and plain statement of the claim showing that the pleader is entitled to relief” (Code Ann. § 81A-108 (a)) it is still possible for a litigant to plead himself out of court by revealing a state of facts which affirmatively shows that there is no liability on the defendant. Robbins v. Zabarsky, 44 FSupp. 867 (4); A. G. Reeves Steel Const. Co. v. Weiss, 119 F2d 472, 476 (9-12); Franklin v. Jordan, 224 Ga. 727 (164 SE2d 718); Jackson v. Brown, 118 Ga. App. 558 (164 SE2d 450).

Where subsequent to the original negligent act there occurs another tortious act sufficient of itself to cause the injury complained of, the latter is to be considered as the sole proximate cause unless it is a “normal reaction to the stimulus of a situation created by negligence.” Higdon v. Ga. Winn-Dixie, Inc., 112 Ga. App. 500, 503 (145 SE2d 808). See also Filler v. Hanger Cab Co., 115 Ga. App. 260 (154 SE2d 420) ; Millirons v. Blue, 48 Ga. App. 483 (173 SE 443); Tucker v. Star Laundry & Cleaners, 100 Ga. App. 175 (110 SE2d 416); Palmer v. Stevens, 115 Ga. App. 398 (154 SE2d 803); Benefield v. McDonough Constr. Co., 106 Ga. App. 194 (126 SE2d 704); Liberty Homes v. Stratton, 90 Ga. App. 675 (83 SE2d ); Whitaker v. Jones, McDougald, Smith Pew Co., 69 Ga. App. 711 (3) (26 SE2d 545); Peggy Ann of Ga. v. Scoggins, 86 Ga. App. 109 (71 SE2d 89); Ga. Power Co. v. Kinard, 47 Ga. App. 483 (170 SE 688); General Motors Corp. v. Jenkins, 114 Ga. App. 873 (2) (152 SE2d 796); Andrews v. Kinsel, 114 Ga. 390 (2) (40 SE 300, 88 ASR 25); Horton v. Sanchez, 57 Ga. App. 612 (195 SE 873).

Argued October 9, 1968 Decided March 14, 1969. Sharpe, Sharpe, Hartley & Newton, W. Ward Newton, for appellant. Duncan Graham, Paul W. Calhoun, Jr., for appellees.

In the present case, after a collision between the defendants in this case had occurred, and after the automobile of one of the defendants was disabled, a city police officer arrived at the scene and in the regular course of his duties began to direct traffic so that the street and intersection would not be blocked. While he was doing so he was negligently struck and killed by another motorist not a party to this lawsuit. The proximate cause of the death of the plaintiff’s husband was, under the statements of this petition, the act of a third party, and not the negligence of the two motorists which caused the collision in the first instance. The foreseeability doctrine, as stated in Williams v. Grier, 196 Ga. 327 (26 SE2d 698) has no application. There the negligence of the defendant in intentionally parking his automobile in a forbidden location which interfered with the visibility of the road by oncoming traffic created a situation constituting a continuing hazard to all persons approaching the intersection. In the present case the damages are too remote and contingent to be recoverable.

The trial court erred in denying the motion to dismiss the claim.

Judgment reversed.

Felton, C. J., Bell, P. J., Jordan, P. J., Hall, Eberhardt, Qvillian and Whitman, JJ., concur. Pannell, J., dissents.