Standard Oil Company v. Harris

172 S.E.2d 344, 120 Ga. App. 768, 1969 Ga. App. LEXIS 924

• Court: Court of Appeals of Georgia
• Decided: December 5, 1969
• Docket: 44523, 44549
• Status: Published

Opinions

Eberhardt, Judge.

The holding in Bolden v. Barnes, 117 Ga. App. 862 (162 SE2d 307) is controlling. There it was settled that “the cause of decedent’s death was his removal of the gas cap simultaneously with the application of compressed air to the fuel line by the defendant’s [Bolden’s] employee which caused gasoline to spew out at the cap onto the decedent and into his eyes, causing him to retreat backwards into the kerosene heater and ignite.”

This ruling, as a precedent which we must follow until and unless it is overruled (see Code § 6-1611; Joseph v. State, 148 Ga. 166 (96 SE 229)), eliminates any negligence on the part of the defendant Bolden as the cause of the event resulting in the death of Barnes and the injury of Miss Harris, and a verdict against him could not stand. Ross v. Central R. & Bkg. Co., 59 Ga. 299; Bray v. Westinghouse Elec. Corp., 103 Ga. App. 783 (120 SE2d 628).

“True law is indeed right reason, conformable to nature, pervading all things, constant, eternal. . . It cannot be one law for Rome and another for Athens, one thing today and another tomorrow.” Cicero, The Commonwealth.

There are allegations that the construction of the station by Standard Oil Company, its owner, was defective. It is gravely doubted that any defect in the construction is alleged. Nor does it appear that the station was not constructed in accordance with the general usages of those engaged in that business. As to that see Pettit v. Stiles Hotel Co., 97 Ga. App. 137 (102 SE2d 693); Kahn v. Graper, 114 Ga. App. 572, 575 (152 SE2d 10); Taff v. Harris, 118 Ga. App. 611 (164 SE2d 881). However, this was a matter that movant should have dealt with in connection with the motion, and its failure to do so leaves the question unresolved. Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205 (163 SE2d 256); Colonial Stores, Inc. v. Turner, 117 Ga. App. 331, 333 (160 SE2d 672).

But if it be conceded that a defect in construction is alleged, this was not the cause of the injuries, and this has been adjudicated, and the rule of stare decisis again comes into play. As to Barnes the cause was his own act of negligence, and as to Miss Harris, it was the intervening act of Barnes in negligently removing the gas cap and allowing the gasoline to be blown over himself from the tank. He knew that compressed air was being applied to the fuel line and should have known that this would cause the gasoline to be blown out of the tank if the cap were removed. That was the holding in Bolden v. Barnes. “It is not intervening consequences, but intervening causes which relieve.” Southern R. Co. v. Webb, 116 Ga. 152, 156 (42 SE 395, 59 LRA 109).

More than half a century ago Judge Powell observed: “We have read of ‘proximate cause’ and of ‘natural consequence,’ and of other phrases expressing the same general idea; until eyes have grown weak with reading and brain fagged out with trying to understand what learned judge after learned judge and learned law-writer after learned law-writer have said on the subject; and yet we realize that we have not pursued the subject further than to examine only a small percentage of the cases and of the text-books that we might have read. But the thought comes to us, that one may live in sight of the ocean for a lifetime, may sail upon it, may know its moods in the calm and in the storm, and yet not be able to answer some simple question as to a cup of cold water.” Atlantic C. L. R. Co. v. Daniels, 8 Ga. App. 775, 778 (70 SE 203). The only difference today is that we have a good deal more text material and infinitely more case law on the subject.

“The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency’are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.” Savannah Electric Co. v. Wheeler, 128 Ga. 550, 562 (58 SE 38, 10 LRA (NS) 1176), and Dunbar v. Davis, 32 Ga. App. 192, 193 (122 SE 895). And see Godwin v. Atlantic C. L. R. Co., 120 Ga. 747, 751 (48 SE 139); Eberhart v. Seaboard A. L. R. Co., 34 Ga. App. 49, 54 (129 SE 2). “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.” Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 439 (99 SE2d 209), and cases cited.

While the injuries here may be “traceable” to the alleged defects in the construction, it is clear, under the ruling made in Bolden v. Barnes, 117 Ga. App. 862, supra, that the taking of the cap from the gasoline tank when it was being placed under pressure preponderates as the cause of the injurious effects.

Supporting this view are: Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 SE 443); Central of Ga. R. Co. v. Price, 106 Ga. 176 (32 SE 77, 43 LRA 402, 71 ASR 246); Central of Ga. R. Co. v. Edwards, 111 Ga. 528 (36 SE 810); Andrews & Co. v. Kinsel, 114 Ga. 390, 392 (40 SE 300, 88 ASR 25); Southern Transportation Co. v. Harper, 118 Ga. 672 (45 SE 458); Postal Telegraph-Cable Co. v. Kelly, 134 Ga. 218 (67 SE 803); Ga. Southern &c. R. Co. v. Corry, 149 Ga. 295 (99 SE 881); Blakely v. Johnson, 220 Ga. 572 (140 SE2d 857); Burnett v. Rome R. &c. Co., 7 Ga. App. 323 (66 SE 803); City of Albany v. Brown, 17 Ga. App. 707 (88 SE 215); Harper v. Fulton Bag &c. Mills, 21 Ga. App. 322 (94 SE 286); Higginbotham v. Rome R. &c. Co., 23 Ga. App. 753 (99 SE 638); Pitchford v. Stoddard, 35 Ga. App. 276 (133 SE 59); Cochran v. Wadley Southern R. Co., 44 Ga. App. 208 (160 SE 706); Cain v. Ga. Power Co., 53 Ga. App. 483 (186 SE 229); Pippin v. J. Regenstein Co., 58 Ga. App. 819, 822 (199 SE 790); Seymour v. City of Elberton, 67 Ga. App. 426 (20 SE2d 767); Williams v. Southern R. Co., 76 Ga. App. 559 (46 SE2d 593); Irwin v. Ga. Power &c. Co., 84 Ga. App. 665 (67 SE2d 151); Davis v. City of Toccoa, 93 Ga. App. 155 (91 SE2d 89).

4. If there was a “defect” in the construction, as claimed, it was certainly patent, the tenant Bolden having equal or better knowledge of it,¹ or opportunity therefor, and “It is the duty of the tenant ‘to abstain from using any part of the premises the use of which would be attended with danger,’ and such continued use of that portion of the knowingly [or apparently] defective premises which ordinary prudence would suggest would be attended with danger will amount to contributory negligence on the part of the tenant, such as would preclude a recovery for the injury which must have been reasonably anticipated. Stack v. Harris, [111 Ga. 149 (36 SE 615)]; Donehoe v. Crane, 141 Ga. 224, 225 (80 SE 712).” Kleinberg v. Lyons, 39 Ga. App. 774 (3) (148 SE 535).

Moreover, “It is a general rule that the members of the tenant’s family, as well as visitors, customers, servants and licensees in general, stand in the same position, so far as injuries caused by a defective condition of the rented premises are concerned, as the tenant himself does,” and “since the right of such third persons is dependent upon a breach by the landlord of his duty to the tenant, they would not ordinarily have any greater prima facie right than the tenant himself. 16 RCL 1067, § 588. As a general rule, the landlord is not liable to third persons for any injuries they sustain, occasioned by the wrongful act of his tenant, since the tenant is not the agent of the landlord, and he is not responsible as such for the tenant’s misconduct. Edgar v. Walker, 106 Ga. 454 (32 SE 582); Gardner v. Rhodes, 114 Ga. 929 (42 SE 63, 57 LRA 749). . . [But] this does not mean that any defense available against a tenant would necessarily also be available against a stranger lawfully visiting the tenant. 36 CJ 224, § 913. In other words, conduct on the part of the tenant constituting contributory negligence such as might . . . bar a recovery on his part, would not necessarily be taken as constituting the proximate cause of an injury such as would bar a visitor who did not himself participate in the negligent act of the tenant.” Kleinberg v. Lyons, 39 Ga. App. 774 (4), supra. To the same effect, see Crossgrove v. Atlantic C. L. R. Co., 30 Ga. App. 462 (2) (118 SE 694); Wall Realty Co. v. Leslie, 54 Ga. App. 560, 562 (188 SE 600). Accord, Finley v. Williams, 45 Ga. App. 863 (166 SE 265); King v. Investors Mtg. &c. Co., 51 Ga. App. 235 (179 SE 910); Waddell v. Wofford Oil Co., 84 Ga. App. 617 (66 SE2d 806); Dempsey v. Smith, 108 Ga. App. 88 (132 SE2d 233). Compare Miller v. Sinclair Refining Co. (5 Cir.) 268 F2d 114; Standard Oil Co. v. Foster (5 Cir.) 280 F2d 912; Reckert v. Roco Petroleum Corp. (Mo.) 411 SW2d 199. See 32 AmJur 526, Landlord & Tenant, § 622.

It is to be observed, too, that the service station was constructed by Standard Oil in 1944 with a flue built in so that some kind of heating stove might be used. Plaintiffs allege that it was designed for using a stove with an open flame, though no reason appears why any kind of stove requiring a flue could not have been used by the tenant. The station was leased to Randall Bolden in 1961 and he had been in full possession and charge of it for approximately five years when the event occurred. It appears from the record that Bolden, the tenant, installed, operated and maintained the stove that was in use without any instruction relative thereto from Standard Oil.

While the stove was inside the building, the gasoline storage tanks and pumps were on the outside. There was space in a nearby portion of the building where some servicing was performed on cars of customers. It was there that the Barnes vehicle was located.

5. It does not appear that anything of this kind had happened before and we can see nothing to indicate that Bolden should have foreseen that Barnes would remove the cap from his gasoline tank just when an attempt to clear the line from the tank to the carburetor with compressed air was being made. Indeed, that is exactly what was held in Bolden v. Barnes, 117 Ga. App. 862, supra. And if not reasonably foreseeable to Bolden, who was present on the premises, how can it be said that Standard Oil, which was not on the premises and having little contact with them save at intervals to deliver oil to the tanks for retail selling, should have foreseen that it would happen? Foreseeability requires only that one having a responsible relationship to the situation anticipate that which is likely to happen. It is not what did happen, but what a reasonably prudent person should expect to happen, and fault is to be predicated upon his defective foresight rather than on hindsight which reveals a mistake. Shockley v. Zayre of Atlanta, Inc., 118 Ga. App. 672 (165 SE2d 179). An event is not regarded as being foreseeable if it is one in the nature of an extraordinary coincidence, or a conjunction of circumstances, or which would not occur save under exceptional circumstances; if it is unusual and unlikely to happen, or if it is a rare event in experience, or if other and contingent experiences preponderate largely in causing the injurious effect. Gulf Oil Corp. v. Stanfield, 213 Ga. 436 (99 SE2d 209); Postal Telegraph-Cable Co. v. Kelly, 134 Ga. 218 (67 SE 803); Southern Transportation Co. v. Harper, 118 Ga. 672 (2) (45 SE 458); Mayor &c. of Macon v. Dykes, 103 Ga. 847, 848, supra; Henderson v. Dade Coal Co., 100 Ga. 568 (28 SE 251, 40 LRA 95); Belding v. Johnson, 86 Ga. 177 (12 SE 304, 11 LRA 53); Powell v. Waters, 55 Ga. App. 307 (190 SE 615); Stallings v. Ga. Power Co., 67 Ga. App. 435 (20 SE2d 776); Lyons v. Ga. Power Co., 78 Ga. App. 445 (51 SE2d 459); Irwin v. Ga. Power &c. Co., 84 (67 SE2d 151); Peggy Ann of Ga. v. Scoggins, 76 Ga. App. 109, 116 (71 SE2d 89); Yarbrough v. Cantex Mfg. Co., 97 Ga. App. 438 (1) (103 SE2d 138); Anderson v. B. F. Goodrich Co., 103 Ga. App. 453, 456 (119 SE2d 603); Daneker v. Megrue, 114 Ga. App. 312 (151 SE2d 157).

Where, as here, it appears that but for the intervention of Barnes in removing the cap of his gasoline tank the injuries to him and to Miss Harris would not have been suffered, the defendants Bolden and Standard Oil are not liable, for the reason that the causal connection between any negligence of Standard Oil in designing the building and of Bolden in attempting to clear Barnes’ gasoline line with compressed air, if such there was, is broken by the interposition of Barnes’ own act of removing the cap to his gas tank. Perry v. Central Railroad, 66 Ga. 746 (5). “If the injuries complained of did not flow naturally and directly from the wrongful act or omission attributed to the defendant, or could not reasonably have been expected to result therefrom, or would not have resulted therefrom, but from the interposition of some independent unforeseen cause, the defendant’s such antecedent wrongful act or omission, if any, would not be the proximate cause of the injury complained of. If the injury could not be reasonably anticipated as the probable result of an act of alleged negligence, such act is either a remote cause or no cause.” Whitaker v. Jones, McDougald, Smith, Pew Co., 69 Ga. App. 711, 715 (26 SE2d 545). We held in Bolden v. Barnes, 117 Ga. App. 862, supra, that it was the act of Barnes which was the cause of the injuries suffered — an independent, unforeseen cause — and that it had not been reasonably foreseeable.

6. The rules of evidence apply in summary judgment proceedings, as is provided by the statute, and the hearsay rule proscribes any consideration of Mrs. Barnes’ testimony as to what she was told concerning the incident, or what she may have learned from others. Chandler v. Gately, 119 Ga. App. 513 (167 SE2d 697), and cases there cited. Whether in support of or in opposition to the motion all testimony by affidavit, interrogatory and deposition must be upon the personal knowledge of the party testifying and not merely conclusory in nature. The rule as to self-conflicting testimony of a party likewise applies. Chandler v. Gately, 119 Ga. App. 513, supra. To be considered, the evidence must be such as would be admissible if the witness were testifying on a trial and must have genuine probative value. Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga. App. 737 (165 SE2d 441).

7. Thus where under all of the admissible evidence, as here and as held in Bolden v. Barnes, 117 Ga. App. 862, supra, it appears that the cause of the injury, as to the decedent Barnes, either resulted from his own act or did not result from culpable negligence of the defendant, his administratrix cannot recover, for the simple reason that had he lived he could not have recovered for his injuries. Southwestern R. Co. v. Johnson, 60 Ga. 667; Savannah, Fla. &c. R. Co. v. Stewart, 71 Ga. 427 (3); Bassett v. Callaway, 72 Ga. App. 97 (33 SE2d 112). And see Stone Mtn. Memorial Assn. v. Herrington, 225 Ga. 746 (3). As we understand the holding in Bolden v. Barnes, 117 Ga. App. 862, it was that Bolden and his employee had been guilty of no wrongful act, and that Barnes was the victim of his own negligent act.

It is true that Miss Harris did not participate in the blowing of the fuel line of the Barnes vehicle or in the removal of the cap from the gasoline tank, but we have heretofore held that there was no negligence chargeable to the Boldens, the tenants. See Kleinberg v. Lyons, 39 Ga. App. 774 (5), supra; Crossgrove v. Atlantic C. L. R. Co., 30 Ga. App. 462 (2), supra; Wall Realty Co. v. Leslie, 54 Ga. App. 560, 562 (188 SE 600); Bolden v. Barnes, 117 Ga. App. 862, supra.

8. As to Miss Harris, the negligence of Barnes having been established, her action against his administratrix is good, but absent culpable negligence on the part of the Boldens or their employee, or of Standard Oil Company, she can have no cause of action against either of them. Southeastern Stages v. Abdella, 75 Ga. App. 38 (41 SE2d 799).

“Notwithstanding the duty resting upon the defendants in the present case, the plaintiff would not be entitled to recover if it be shown that the proximate cause of her injury was some act for which neither of the defendants was responsible.” McMahen v. Nashville, Chattanooga &c. R. Co., 68 Ga. App. 397, 402 (23 SE2d 81). It has been adjudicated that the act of the decedent, Barnes, for which neither the Boldens nor Standard Oil was responsible, was the sole proximate cause of the injury.

Summary judgments should have been entered on the motions of the Boldens and of Standard Oil Company.

Judgments reversed.

Bell, C. J., Jordan, P. J., Quillian and Whitman, JJ., concur. Hall, P. J., and Pannell, J., concur in part and dissent in part. Deen, J., dissents. Evans, J., did not participate.

1 Plaintiffs allege that he entered the premises as tenant with knowledge of the alleged defect.