STANDARD OIL COMPANY v. HARRIS

1. Negligence on the part of the defendant Bolden was eliminated by the holding in Bolden v. Barnes, 117 Ga. App. 862 ( 162 S.E.2d 307). That being true, no verdict against him could stand and his motion for summary judgment should have been sustained.

2. Since it was held in Bolden v. Barnes, 117 Ga. App. 862, supra, that the act of Barnes was the cause of injuries suffered from the event, the alleged defective design of the building by Standard Oil Company was eliminated as a cause of the injuries suffered.

3. A cause that necessarily sets other causes in operation is the proximate cause; a cause which is merely incidental is not the proximate and responsible one.

4. A defect in construction that is clearly patent, affording the tenant equal or superior knowledge of it, places on the tenant a duty to abstain from using portions of the premises fraught with danger, and use thereof by him amounts to contributory negligence which will preclude a recovery by him, and under certain circumstances will preclude members of his family, his servants, employees and his guests.

5. To be actionable the result of an act of a defendant must have been one that would have been reasonably foreseeable by a reasonably prudent person. An event is not reasonably foreseeable if it is one in the nature of an extraordinary coincidence, or which would not have happened save in exceptional circumstances, or is unusual and unlikely to happen, or is a rare event, or where other and contingent experiences preponderate largely in causing the injurious effect.

6. The rules of evidence apply in summary judgment proceedings. Hearsay and conclusory statements, in affidavits submitted in support of or in opposition to motions are to be disregarded.

7. Where injuries resulting in the death of a decedent were caused by his own act, or did not result from culpable negligence of another, his administrator cannot recover therefor.

8. The plaintiff, Miss Harris, is entitled to recover from the administratrix of Barnes' estate, since it was his intervening act that caused her injuries, but not against other named defendants.

DEEN, Judge, dissenting.

1. In Bolden v. Barnes, 117 Ga. App. 862 ( 162 S.E.2d 307) Barnes' widow sued Bolden in a death action, alleging that Bolden's employee was negligent in blowing air into the gas line of Barnes' car while Barnes was removing the gas cap. The Court of Appeals held that: "The evidence shows 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 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." I understanding this language as a holding that, as between Bolden's act of using compressed air and Barnes' act of taking off the gas cap, the negligence was attributable to Barnes and not to Bolden. No negligence regarding the construction or maintenance of the stove or the building was involved in that action.

Thereafter Miss Harris, a third party injured in the fire, sued Standard Oil Company and Barnes' estate. This case, between different parties, is based on a different theory of negligence: that Standard Oil Company was negligent in constructing premises to be used as a garage with doors closed and automobiles containing gasoline within close proximity to an open flame heater, which negligence combined with that of Barnes in removing the gas cap and caused the fire. The majority opinion holds that our decision in Bolden v. Barnes, supra, is stare decisis and is a controlling precedent. I agree that this is true only insofar as it holds that the act of Barnes was negligence which was the proximate cause of Barnes' death. I do not agree that it is stare decisis or is controlling insofar as it may affect the right of action of a third party who says that her injuries were caused by the concurring negligence of the owner in constructing a garage intended to be heated by an open flame stove in the presence of automobiles and the act of Barnes in removing the gas cap. It appears to me that the majority opinion is considering our former opinion, both as to its effect on Miss Harris' right of action and on the third-party complaint of Barnes' estate, as though the first opinion constituted res judicata rather than stare decisis when it holds that neither Miss Harris nor Barnes' executrix has a right of action against Standard Oil Company. Stare decisis is simply "a principle of law which has become settled by a series of decisions generally binding on the courts and should be followed in similar cases." 21 CJS 302, Courts, § 187. And see Humthlett v. Reeves, 211 Ga. 210 ( 85 S.E.2d 25).

To say that as between Barnes and the tenant Bolden, Barnes' contributory negligence bars his widow's recovery (no question of maintaining a defective building being involved), or even to say that as between those two Barnes alone was negligent is a statement completely irrelevant to Miss Harris' complaint that she, a non-negligent plaintiff, was injured by the concurring negligence of Barnes and the Standard Oil Company. This court has fallen into the same error before by erroneously reasoning from cases holding that in a collision between an automobile and a standing train the motorist was the sole proximate cause of his injuries to a conclusion that where the action was brought by a guest passenger in an automobile who joined the motorist and the railroad as concurring tortfeasors it followed that, the motorist's act having been denominated the "sole proximate cause of his injuries," the guest also could not recover against the railroad. A total of seven cases to this effect were finally overruled in Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159 (2) ( 91 S.E.2d 135), where it was settled that although, as between two tortfeasors, one may be the sole cause of his misfortune, this does not mean that, as to an innocent third-party plaintiff, the negligence of both may not have concurred to cause her injuries, and that this is always a matter of jury decision. As stated in the second headnote: "Where it appears that a plaintiff was injured or damaged through the negligence of two or more tortfeasors whose negligence is not imputable to the plaintiff and which concurs in constituting the proximate cause of such injury or damage, recovery may be had against any one or all of such tortfeasors. In determining whether or not alleged acts constitute negligence, questions as to diligence and negligence, including what negligence constitutes proximate cause of the injury, are peculiarly for the jury and will not be solved on demurrer, except where such questions appear palpably clear, plain and indisputable. Where reasonable minds might disagree as to whether such acts constitute actionable negligence, a jury question is presented. Where a jury question is otherwise presented as to whether the concurrent negligence of two defendants caused the plaintiff's injuries, the issue will not be resolved as a matter of law in favor of one defendant because the other defendant failed to exercise due care to avoid the consequences of such defendant's negligence. Accordingly, certain cases resolving such questions as issues of law rather than issues of fact are to that extent, as shown in the corresponding division hereof, overruled."

That this case is stare decisis as to the legal principle herein involved see Associated Transports, Inc. v. Greeson, 94 Ga. App. 47, 48 ( 93 S.E.2d 417); Pittman v. Staples, 95 Ga. App. 187, 191 ( 97 S.E.2d 630); Atlantic C. L. R. Co. v. Studdard, 99 Ga. App. 609, 612 ( 109 S.E.2d 523); Knowles v. LaRue, 102 Ga. App. 350, 352 ( 116 S.E.2d 248); Smith v. Goodwin, 103 Ga. App. 248, 250 ( 119 S.E.2d 35); Georgia, Ashburn c. R. Co. v. Rutherford, 104 Ga. App. 41, 47 ( 121 S.E.2d 159); G R Waterproofing Co. v. Brogdon, 104 Ga. App. 112, 115 ( 121 S.E.2d 77); Buice v. Atlanta Transit System, 105 Ga. App. 795, 797 ( 125 S.E.2d 795); Browning v. Kahle, 106 Ga. App. 353, 357 ( 126 S.E.2d 892); Nat. Upholstery Co. v. Padgett, 111 Ga. App. 842, 848 ( 143 S.E.2d 494); Grasham v. Southern R. Co., 112 Ga. App. 486, 487 ( 145 S.E.2d 618); General Motors Corp. v. Jenkins, 114 Ga. App. 873, 884 ( 152 S.E.2d 796); Rhodes v. Baker, 116 Ga. App. 157, 159 ( 156 S.E.2d 545); 8 Mercer Law Review, p. 178. As pointed out by Judge Bell in Terry v. Central of Ga. R. Co., 108 Ga. App. 204, 207 ( 132 S.E.2d 573), the Coxwell case was decided "with the full accord of all of the judges," it has been followed many times since, and it should not be abandoned now.

This court may not decide as a matter of law what is or is not negligence, where negligence may exist as a matter of fact although not so denominated by statute. Garrett v. Royal Bros. Co., 225 Ga. 533 ( 170 S.E.2d 294). If stare decisis (as opposed to res judicata) is involved in this case, it is because of the rule of law that a non-negligent plaintiff may sue two tortfeasors jointly, although, as between themselves, the act of one constitutes such negligence as to preclude his recovery from the other. Indeed, this latter is almost always true, for even if the negligence were divided 50-50 between the two defendants neither could recover from the other. And even if the act of one is the "proximate cause" of his injury, it does not follow that, as to a non-negligent plaintiff, a concurrent proximate contributing cause does not exist. This is especially true where, as in the railroad cases, the negligence of one tortfeasor is static and that of the other is active. See in this regard cases like Central of Ga. R. Co. v. Swift Co., 23 Ga. App. 346 ( 98 S.E. 256). "There may be more than one proximate cause of an injury," and where two negligent causes stand so related that neither would have produced a harmful result but for the other, and both causes are closely connected with the injury, the two negligent actors are guilty of concurring negligence. Ponder v. McKinzie, 89 Ga. App. 846, 850 ( 81 S.E.2d 551); Milton Bradley Co. of Ga. v. Cooper, 79 Ga. App. 302 ( 53 S.E.2d 761); Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690 ( 51 S.E.2d 705); Buice v. Atlanta Transit System, 105 Ga. App. 795 ( 125 S.E.2d 795). The mere fact that injury would not and could not have resulted by reason of one defendant's negligent act alone will not of itself be taken to limit and define the intervening agency as constituting proximate cause, and will not prevent recovery from the other defendant. Higdon v. Ga. Winn-Dixie, Inc., 112 Ga. App. 500 ( 145 S.E.2d 808). This is particularly applicable where the negligence of one defendant is static, and that of another is active. In Nesmith v. Starr, 115 Ga. App. 472 ( 155 S.E.2d 24), a defendant guilty of leaving machinery with a heavy steel blade unprotected provided a concurrent cause of injury, although no injury would have occurred but for the act of another in moving the blade. And in a case where the power company left uninsulated wires strung on light poles, the act of another who cut down a tree so that it fell on the wires and electrocuted him and another was, as to the innocent third party, only a concurrent proximate cause of injury, although the one who negligently cut the tree could not himself recover since his active negligence, as against the static negligence of the power company, was the proximate cause of his death. In the case sub judice one fact and one fact only is established from the previous Barnes decision, and that is that Barnes was negligent in taking off the cap from his gas tank, even though he did not know that air was being pumped into the line. Nevertheless, so far as Miss Harris is concerned, Barnes could have been drenched with a whole tank full of gas and it would not have harmed her. Only the explosion caused by the gasoline and the open stove in proximate to it caused her injury. Why, then, is it not a jury question as to whether the construction of a closed garage and the furnishing of an open-flame stove to be used therein constitutes negligence? If it does, it is certainly a contributing proximate cause. For these reasons I dissent from Divisions 1, 2 and 3 of the opinion.

2. Secondly, it should be pointed out that Miss Harris is not an employee of the tenant Bolden, and any negligence of Bolden in maintaining defective premises (which, however, was not in issue in the Bolden case, and obviously is not at issue here because Bolden is not a party) is not imputable to her. Miss Harris alleges that she was an invitee. Her deposition shows that she is also an independent contractor, that she carried on at another location an independent business of keeping books and acting as public stenographer, that Bolden paid her $15 per month and that for this sum she came by his place of business about once a month, picked up his invoices, and took them to her place of business where she ran a bookkeeping service and made up the books. She sold services as other jobbers sell gasoline or repair parts, and Bolden had no control over the time or manner of her work. Whatever effect her being an employee would have had on the case (and I do not think it would have any) she nevertheless was not an employee but an invitee whose presence in the garage was for the mutual benefit of herself and the defendant's tenant. For this reason I dissent from the 4th division of the opinion holding that since the tenant Bolden maintained the premises in the same defective condition in which they were furnished him by the landlord Standard Oil Company, and since Bolden if he were a plaintiff (which he is not) could not recover from Standard Oil Company (which he does not seek to do) an employee (which Miss Harris was not) would also be unable to recover from Standard Oil Company.

3. I dissent from the fifth division of the opinion because I consider it a jury question as to whether one who constructs a closed garage to be heated by a free-standing open-flame stove in close proximity to gasoline-filled automobiles in process of repair may be guilty of negligence in not anticipating that in the course of such repairs gasoline may be released into the air from these automobiles and thereby cause an explosion. If the injury in fact results from defective construction by the owner or under his direction or control, knowledge is conclusively presumed and liability attaches. Monahan v. Nat. Realty Co., 4 Ga. App. 680 ( 62 S.E. 127); Marr v. Dieter, 27 Ga. App. 711 (1) ( 109 S.E. 532). "If there should be a defect in the premises, in the floor, the walls, the ceiling, etc., or in equipment which may constitute a part of the premises, that ought to have been discovered on a reasonable inspection and injury results therefrom ... liability will attach." Sinclair Refining Co. v. Redding, 108 Ga. App. 466, 470 ( 133 S.E.2d 421).

4. This leaves for consideration the cross action of Mrs. Barnes as administratrix against Bolden, the cross appellant, in view of the prior decision against her in her individual capacity. As stated in Atkinson v. Drake, 212 Ga. 558 ( 93 S.E.2d 702) the rule here is that actions brought by a person in an individual and in a representative capacity are separate actions with separate entities as plaintiffs. Neither is controlled by the other except to the extent that one will be a binding precedent on the other if they are "in all material respects the same." Cf. Armstrong Furn. Co. v. Nickle, 110 Ga. App. 686 (4) ( 140 S.E.2d 72). Now, it is true that regardless of the fact that the relief sought is different and the allegations and theory of negligence of the defendant are different (one case being based on respondeat superior and the other on original negligence in maintaining defective premises) the cases have one thing in common. Insofar as the negligence of the defendant is concerned, the actions of both a widow and a personal representative of the estate of the decedent are derivative in the same manner, in that both, as to this element of the case, stand in the shoes of the decedent and neither can recover unless the decedent, had he been in life, could have recovered against the defendant. See Code Ann. § 3-505; Central R. Bkg. Co. v. Brantley, 93 Ga. 259 (2) ( 20 S.E. 98); Wrinkle v. Rampley, 97 Ga. App. 453 ( 103 S.E.2d 435); Hightower v. Landrum, 109 Ga. App. 510, 514 ( 136 S.E.2d 425). If the plaintiff were the same, she would be barred in the second action by reason of the fact that she might have, although she did not, include the present theory of negligence in the former action. Being a separate entity, she is not so bound, but she would be bound if the former action is an adjudication that the husband's act was the sole proximate cause of the tragedy, because in such a case neither the wife nor the administratrix would have a right of action. This poses a more difficult problem. Since, however, the negligence of the owner qua owner and of the tenant qua tenant were not before the court for decision in the former action, it is obvious that the concurring negligence, if any, of these parties insofar as building and maintaining the premises is concerned, was not involved in the former adjudication. If there was concurring negligence, but if the decedent failed to exercise ordinary care for his own safety, Mrs. Barnes as administratrix cannot recover from anybody, but the action of Miss Harris would of course not be affected. We take the necessary holding in Bolden v. Barnes, supra, only as adjudicating that Amos Bolden was not negligent in putting air pressure to the gasoline line of the decedent's vehicle under the circumstances shown to exist. It is not a holding that Barnes' negligence was the sole proximate cause of his death. It was not error to deny the motions for summary judgment by the Boldens and by Standard Oil Company against the administratrix.

HALL, presiding Judge, concurring in part and dissenting in part.

I am of the opinion that this court was in error in Bolden v. Barnes, 117 Ga. App. 862 ( 162 S.E.2d 307) in holding as a matter of law that a jury could not find the hot stove to be a concurring cause of the injuries. For the removal of the cap by the plaintiff to be the sole proximate cause one would have to say that the incident would have happened regardless of any negligence on the part of Bolden as to the hot stove. Furthermore, I am also of the opinion that it is for a jury rather than a court to say which of several possible causes of an injury preponderates or whether or not they are concurring causes.

Nevertheless, I see no basis to say that a jury could find that Standard Oil Company had built and leased a defective garage. There is no evidence of anything defective in the building itself. I cannot see how Standard Oil can be held liable for the operation of the stove. Bolden, as an independent contractor, leased the building from Standard Oil in 1961. He borrowed the stove from Standard Oil in 1963. The stove was loaned without charge along with many other tools. The stove was installed, maintained, operated and serviced by Bolden and his employees. Standard Oil cannot be held liable for the manner in which the stove was operated.

I dissent from the judgment reversing the refusal to grant a summary judgment in behalf of the Boldens.

I am authorized to state that Judge Pannell concurs in this dissent.