Opinion
41041.
DECIDED FEBRUARY 2, 1965.
Action for damages. Brunswick City Court. Before Judge Little.
Bennet, Gilbert, Gilbert Whittle, Wallace E. Harrell, for plaintiff in error.
Conyers, Fendig, Dickey Harris, Reid W. Harris, contra.
The court erred in overruling the general demurrer in this case because: (a) It was not alleged that the owner interfered with the performance of the work by the contractor so as to create the relation of master and servant or so that an injury resulted which is traceable to the owner's interference, and (b) Because the allegations of the petition show that the death of plaintiff's husband was due to the intervening negligence of the decedent and the employees of their common employer since there are no allegations that the defendant owner should have anticipated the intervening negligence of the decedent and that of his fellow employee or employees.
DECIDED FEBRUARY 2, 1965.
Mrs. Loretta Dowling brought an action against Brunswick Pulp Paper Company to recover damages in the amount of $193,752 for the death of her husband, Willie Newton Dowling, as a result of the defendant's alleged negligence. The petition, as twice amended, alleged substantially as follows: That on March 20, 1963, the plaintiff's decedent was employed by Combustion Engineers, a subcontractor employed to make certain boiler repairs in the defendant's plant in Glynn County; that the plaintiff was an invitee in and upon the defendant's premises while performing his job there; that on said date the deceased was in the course of his employment using a blowtorch doing work on the sixth floor of the plant; that, when his oxygen supply became exhausted, he proceeded to the fifth floor to obtain another oxygen tank; that, after securing another tank, weighing approximately 125 pounds, and upon preparing to return to the sixth floor, he stepped into an unguarded hole on the fifth floor and fell approximately 8 feet to the fourth floor; that the flooring on the various floors of this building was constructed of iron grating, dark in color, with holes therein approximately 1-2 inches square; that the hole through which the deceased fell was approximately 4 feet wide and 6 feet long and was located 6-10 feet southerly from the elevator shaft; that the tank landed across his chest, causing injuries from which he died approximately 3 days later; that the floor area on the fifth floor was improperly lighted due to the fact that several light bulbs were not burning, the lighting being so poor that the deceased could not observe the unguarded hole in the floor prior to falling through it; that, at the time he fell, the windows in the building were shielded by solid metal awnings extending at an angle to the bottom of the windows; that, prior to his fall, the defendant, acting by and through its electricity employees, had removed certain lighting conduits on the fifth floor, thereby disconnecting the electric lights in the area adjacent to where the fall occurred and failed to erect supplemental or temporary lighting there; that, at the time of the fall, the weather was extremely dark due to a very hard rain at the time; that there was no electric lighting in the vicinity of the area of the deceased's fall, what lights were in the building being discolored and darkened by some chemical unknown to the plaintiff; that the only electric lights on the fifth or fourth floors, if any, were located on the opposite side of the boiler from the alleged hole, and did not cast any light on the hole; that the defendant knew of said improper lighting condition and, prior to said accident, had been requested to repair same and furnish sufficient light on the fifth floor; that the defendant was negligent (a) in failing to provide a safe place for the deceased to work, (b) in failing to provide ample lighting on the fifth floor of its plant, and (c) in failing to place a guardrail or other protection around the unlighted hole through which the deceased fell; that the aforesaid acts of negligence were the proximate cause of the deceased's death; that, at the time of his death, the deceased was an able-bodied man in good physical condition, 48 years of age, earning $4.05 per hour or $162 per week, with a life expectancy of over 22 years; that, at the time of said accident, the defendant had not surrendered complete control of said building to its contractor, Combustion Engineering, Inc., but the defendant maintained complete control of the electrical system and the electrical lights in the building.
To the petition the defendant filed general and special demurrers and an answer, which it renewed to the petition as amended. The court overruled the renewed demurrers and denied the defendant's timely motion for a directed verdict. The jury returned a verdict in favor of the plaintiff in the amount of $91,000, for which a judgment was entered by the court. To the judgment of the court denying its timely motion for judgment n.o.v. and, in the alternative, its motion for a new trial as amended, as well as the judgment overruling its renewed demurrers, the defendant excepts.
1. (a) The court erred in overruling the general demurrer to the petition. In the briefs of defendant in error and in oral argument her attorneys plant her right to recovery upon provision 5 of Code § 105-502 which provides: "If the employer retains the right to direct or control the time and manner of executing the work; or interferes and assumes control, so as to create the relation of master and servant, or so that an injury results which is traceable to his interference." There is no allegation in the petition that the employer retained the right to direct or control the time and manner of executing the work and the defendant in error does not base her case on this provision of the Code section. The right to recovery is planted on the provision and proposition that the employer interfered and assumed control — so that an injury resulted which is traceable to its interference. There are no allegations in the petition which support this theory and contention. Insofar as this basis of recovery is concerned the petition did not set forth a cause of action.
(b) In addition to the ruling in the preceding paragraph the petition did not set forth a cause of action because it set forth no facts showing actionable negligence of the defendant. If the defendant was guilty of negligence as alleged it was too remote to have been the proximate cause of the death of plaintiff's husband. The allegation that the defendant maintained complete control of the electrical system and the electric lights in the building is not an allegation of control of the territory of the contractor's operations and work on the gigantic furnace. The alleged negligence of the defendant in not sufficiently lighting the 5th floor of the furnace was not the proximate and efficient cause of the decedent's death. The deceased, with full notice of the darkened condition of the 5th floor undertook to go to it from the 6th floor. While there he fell into a hole not alleged to have been made by the defendant in the grate floor of the 5th floor. In the absence of an allegation that the defendant made the hole it must be assumed that the contractor made it with knowledge that employees working on the furnace would use the 5th floor and be endangered by an unlighted and unguarded open hole in the floor. Since it is not alleged that the defendant made the hole or knew of its existence it follows that the acts of negligence of the deceased and his employer through one or more fellow employees were the efficient proximate causes of the death of the deceased employee. There is no allegation that the defendant should have anticipated the negligence of the fellow employees of the deceased and the negligence of the deceased employee. "While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended or foreseen by the original wrongdoer, the causal connection is not broken, and the original wrongdoer is responsible for all of the consequences resulting from the intervening act." Southern R. Co. v. Webb, 116 Ga. 152 ( 42 S.E. 395, 59 LRA 109); Blunt v. Spears, 93 Ga. App. 623 ( 92 S.E.2d 573), reversed on another ground, 212 Ga. 537 ( 93 S.E.2d 659). The principle stated in Braun v. Wright, 100 Ga. App. 295 (3) ( 111 S.E.2d 100) applies here. Kreiss v. Allatoona Landing, Inc., 108 Ga. App. 427 ( 133 S.E.2d 602) is patently distinguishable, but cases cited in the dissent in that case are authority for the ruling in this case as the facts in this case make them applicable here.
The court erred in overruling the general demurrer to the petition. This error rendered further proceedings nugatory. Inasmuch as the case cannot be tried again on the same petition and answer as before, it is useless to pass upon the exceptions to the overruling of the motions for a judgment n.o.v. and a new trial.
Judgment reversed. Jordan and Russell, JJ., concur.