United States Fidelity & Guaranty Co. v. Sanders

Court of Appeals of Georgia

United States Fidelity & Guaranty Co. v. Sanders

96 S.E.2d 531, 94 Ga. App. 904, 1957 Ga. App. LEXIS 961

CourtCourt of Appeals of Georgia

DecidedJanuary 22, 1957

Docket36490

StatusPublished

Cited by3 cases

This text of 96 S.E.2d 531 (United States Fidelity & Guaranty Co. v. Sanders) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States Fidelity & Guaranty Co. v. Sanders, 96 S.E.2d 531, 94 Ga. App. 904, 1957 Ga. App. LEXIS 961 (Ga. Ct. App. 1957).

Pincite

Opinion

Townsend, J.

1. “It is well settled law that in the absence of demurrer directed specifically to this point, where a cause of action is set out which would entitle the plaintiff to recover on proof of ordinary negligence on the part of the defendant, the mere fact that the plaintiff characterizes the acts of negligence set out as being gross will not defeat recovery, where ordinary negligence is proved. Blanchard v. Ogletree, 41 Ga. App. 4, 10 (152 S. E. 116); Fountain v. Tidwell, 92 Ga. App. 199 (88 S. E. 2d 486).” Holland v. Boyette, 93 Ga. App. 497, 501 (92 S. E. 2d 222). Accordingly, on the trial of an action by the plaintiff insurance company as subrogee, of its insured who suffered a fire loss due to the alleged negligence of the defendant, an independent contractor who owned the plaintiff’s insured only the duty of ordinary care in sanding and refinishing her floors to avoid injury to the premises, it was error for the trial court to charge: “In this case it is contended by the plaintiff that the defendant W. D. Sanders and his emplovees were guilty of gross negligence. . . I charge you that gross negligence is a failure to use that degree of care which every man of common sense, however inattentive he may be, would exercise in the same or similar circumstances. ... It becomes a question of fact for you to determine, whether or not you believe that this defendant or his employees were guilty of such negligence as alleged in this instance. This suit is based by the plaintiff upon that type of negligence as set forth in the petition. That is to say, the plaintiff claims he was injured, and injured by the gross negligence of the defendant. . .You will determine ... all that occurred as disclosed to you, and then say for yourselves whether the defendant through his agents and employees or by himself was guilty of gross negligence or. not.” This is true although the petition also alleged that certain acts of the defendant’s employee were negligent “and that said negligence was so reckless and wanton as to amount to gross negligence.”

2. The remaining special assignments of error are either without merit or not likely to recur. The general grounds will not be passed upon as the case is to be tried again.

The trial court erred in denying the motion for a new trial.

Judgment reversed.

Gardner, P. J., and Carlisle, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Townsend, J.

1. “It is well settled law that in the absence of demurrer directed specifically to this point, where a cause of action is set out which would entitle the plaintiff to recover on proof of ordinary negligence on the part of the defendant, the mere fact that the plaintiff characterizes the acts of negligence set out as being gross will not defeat recovery, where ordinary negligence is proved. Blanchard v. Ogletree, 41 Ga. App. 4, 10 (152 S. E. 116); Fountain v. Tidwell, 92 Ga. App. 199 (88 S. E. 2d 486).” Holland v. Boyette, 93 Ga. App. 497, 501 (92 S. E. 2d 222). Accordingly, on the trial of an action by the plaintiff insurance company as subrogee, of its insured who suffered a fire loss due to the alleged negligence of the defendant, an independent contractor who owned the plaintiff’s insured only the duty of ordinary care in sanding and refinishing her floors to avoid injury to the premises, it was error for the trial court to charge: “In this case it is contended by the plaintiff that the defendant W. D. Sanders and his emplovees were guilty of gross negligence. . . I charge you that gross negligence is a failure to use that degree of care which every man of common sense, however inattentive he may be, would exercise in the same or similar circumstances. ... It becomes a question of fact for you to determine, whether or not you believe that this defendant or his employees were guilty of such negligence as alleged in this instance. This suit is based by the plaintiff upon that type of negligence as set forth in the petition. That is to say, the plaintiff claims he was injured, and injured by the gross negligence of the defendant. . .You will determine ... all that occurred as disclosed to you, and then say for yourselves whether the defendant through his agents and employees or by himself was guilty of gross negligence or. not.” This is true although the petition also alleged that certain acts of the defendant’s employee were negligent “and that said negligence was so reckless and wanton as to amount to gross negligence.”

2. The remaining special assignments of error are either without merit or not likely to recur. The general grounds will not be passed upon as the case is to be tried again.

The trial court erred in denying the motion for a new trial.

Judgment reversed.

Gardner, P. J., and Carlisle, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

96 S.E.2d 531, 94 Ga. App. 904, 1957 Ga. App. LEXIS 961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-fidelity-guaranty-co-v-sanders-gactapp-1957.

Opinion

Related

Cite This Page — Counsel Stack