Queen v. Craven

Full title: QUEEN v. CRAVEN

Court: Court of Appeals of Georgia

Date published: Feb 20, 1957

95 Ga. App. 178 (Ga. Ct. App. 1957)

97 S.E.2d 523

Opinion

36516.

DECIDED FEBRUARY 20, 1957.

Tort; sufficiency of pleadings. Before Judge Foster. Douglas Superior Court. September 18, 1956.

Paul Webb, Jr., Bertram S. Boley, Otis L. Davis, for plaintiff in error.

Shirley C. Boykin, D. S. Strickland, Boykin Boykin, contra.

1. Where a bill of exceptions in this court assigns error upon a ruling of the trial court upon the sufficiency of the pleadings, which, because of the allowance of time in which to amend, is not subject to exception and review, but also assigns error upon a ruling as to the sufficiency of the pleadings after the time allowed for amendment, such latter judgment is for the purposes of review final, and the writ of error will not be dismissed.

2. Under the provisions of Code (Ann.) § 81-1001, all rulings on demurrers to pleadings in which time is allowed for amendment are not final in character, are not reviewable, and, accordingly do not constitute the "law of the case" so as to prevent the trial court's ruling upon the sufficiency of the petition as finally amended.

3. For an alleged negligent act to be actionable, it must be shown that the negligence alleged constituted a breach of duty owed by the defendant to the plaintiff.

DECIDED FEBRUARY 20, 1957.

On February 23, 1955, the plaintiff, Thomas C. Queen, filed an action for damages against the defendant, A. B. Craven, for the defendant's alleged negligence. The defendant interposed his general and special demurrers and the trial court on July 27, 1955, overruled the defendant's general demurrers, some of his special demurrers, and sustained certain of the special demurrers with time allowed within which to amend. Within the time allowed for amendment, the plaintiff offered two amendments which were allowed subject to objections and demurrer. On September 3, 1955, the defendant renewed his original demurrers and added certain additional special demurrers. On September 18, 1956, the trial court entered the following order: "Within demurrer is hereby sustained, the previous order of this court dated July 27, 1955, not having been complied with, and additional grounds set forth herein."

On appeal to this court, the plaintiff assigns error on the trial court's judgment of July 27, 1955, and on its judgment of September 18, 1956.

In this court, the defendant moved to dismiss the writ of error upon the ground that the bill of exceptions was prematurely sued out in the lower court as no final judgment had been rendered in the case.

The material allegations of the petition as finally amended are substantially as follows. The defendant, a building contractor by trade, is engaged in the business of building, remodeling and repairing houses. On March 3, 1953, the plaintiff lived with his father in a house known as No. 835 Hall Street, N.W.., in the City of Atlanta. The house was owned by Mrs. L. H. Ham and rented by her to the plaintiff's father. On March 3, 1953, the defendant and Mrs. Ham entered into a contract under the terms of which the defendant was to perform certain remodeling and to make certain repairs on the house occupied by the plaintiff and his father. The exact details of the contract are not known to the plaintiff as he was not a party to it, but these details are peculiarly within the knowledge of the defendant as he was a party thereto. Prior to March 3, 1953, the house occupied by the plaintiff and his father was a 6-room house, having a porch across the entire back side. The plaintiff occupied one of the back rooms as his bedroom, and this room had a door opening directly onto the back porch. This porch was approximately 10 feet wide and stood approximately 7 feet from the ground. There was no running water in the house and the plaintiff and his family kept a shelf with water and basins on the back porch for use as a wash stand. When the plaintiff left for work at approximately 6:30 a. m. on the morning of March 3, 1953, the back porch was intact and in place and the plaintiff had no knowledge of any contemplated changes to be made to the porch. It was the practice and custom of the plaintiff, when he returned home from work each night, to go directly to the back porch to wash his face and hands, and in going to the porch, the plaintiff walked through his bedroom and through the door opening onto the porch. On March 3, 1953, pursuant to his contract with Mrs. Ham, the defendant and two of his employees began work on the remodeling job on the house. One of these employees was a carpenter by the name of Lawrence York. The names of the other employees are not known to the plaintiff, but are peculiarly within the knowledge of the defendant as they were in his employ, carried on the defendant's payroll, and subject to his orders and direction. At all times mentioned in the petition, these workmen were servants and employees of the defendant, acting for and on behalf of the defendant in the course of their employment. These workmen were employed by the defendant on his own account to assist him in making the repairs which he had undertaken to make for Mrs. Ham. Pursuant to his employment by Mrs. Ham, the defendant and these workmen removed the back porch from the house. When this porch was removed, there was a drop of 7 feet from the back door of the plaintiff's bedroom to the ground below. Neither the defendant nor anyone else replaced the porch on the back of the house on March 3, 1953, before they stopped work for the day. No barricade was placed in the door leading from the plaintiff's bedroom to the back porch to prevent the plaintiff or anyone else from walking out the door and falling to the ground. No steps or other means of going from the plaintiff's bedroom to the back yard were provided after the removal of the back porch. No sign or notice of any kind was provided to notify the plaintiff that the porch had been removed, or that it would be dangerous to go out the back door of his bedroom. No light was provided to show the dangerous condition which resulted from the removal of the porch steps. The plaintiff arrived home from work at approximately 7:45 p. m. on the evening of March 3, 1953, when it was already dark. He did not know that the porch had been removed, and, pursuant to his usual custom, the plaintiff went directly to his bedroom and started to go through the back door to the back porch. There was no barricade or light there or notice of any kind to indicate to the plaintiff that it was not safe to go through his back door. It was dark and the plaintiff could not see that the porch had been removed. As he stepped through his back door, the plaintiff fell violently and with great force to the ground and suffered enumerated injuries. It is alleged that these injuries and damages suffered by the plaintiff were directly and proximately caused by the following acts of negligence: (a) The defendant and his servants and employees removed the back porch from the house occupied by the plaintiff and did not replace it before stopping work for the night, and no barricades were placed in the plaintiff's back door to prevent him from falling from said door. This failure to provide a barricade was in violation of the requirements of ordinary care and diligence.

(b) No notice was given to the plaintiff by the defendant or his servants and employees of the dangerous condition created by the removal of the porch, this failure to give notice being in violation of the requirements of ordinary care and diligence. (c) No light was provided by the defendant or his servants and employees at the spot where the plaintiff's door opened on to the porch to illuminate the back of the house and to give notice of the dangerous condition created and left by the defendant and his servants and employees. This was in violation of the requirements of ordinary care and diligence. (d) No sign or notice of any kind was provided by the defendant or his servants and employees to indicate the dangerous condition created by the removal of the porch from the house occupied by the plaintiff. This failure to provide a sign or other notice was in violation of the requirements of ordinary care and diligence.

CARLISLE, J.

1. While it is true that where, in ruling upon demurrers, the trial court allows time for the filing of an amendment, the court must enter a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which latter judgment is final and supersedes the earlier judgment on the demurrers, and such earlier judgment shall not be subject to exception or review; and, while it is true that where the sole assignment of error contained in a bill of exceptions in this court is upon the judgment upon demurrers in which time was allowed for amendment, the writ of error must be dismissed ( Godwin v. Hudson, 93 Ga. App. 858, 93 S.E.2d 379, and citations); where, as here, the bill of exceptions contains an assignment of error on the superseding judgment as to the sufficiency of the pleadings, entered after the expiration of the time allowed for amendment in the earlier judgment, the writ of error is not subject to dismissal as error is assigned upon a judgment which is final for purposes of review. Girtman v. Girtman, 191 Ga. 173 ( 11 S.E.2d 782). The motion to dismiss the writ of error is denied.

2. Under the provisions of Code (Ann.) § 81-1001, all rulings on demurrers to pleadings in which time is allowed for amendment are not final in character, are not reviewable, and, accordingly, do not constitute the "law of the case" so as to prevent the court from considering the petition as finally amended on its merits. Adams v. Ricks, 91 Ga. App. 494, 497 ( 86 S.E.2d 329). Consequently, there is no merit in the plaintiff's contention that the trial court had established the law of the case by overruling the defendant's general demurrer in the order allowing time for amendment so as to prevent the court from considering the petition, as finally amended, on its merits and entering an order sustaining the general demurrer after the time had expired for amendment.

3. "While we are fully aware of the beneficent and salutary rule, to which this court scrupulously adheres in proper cases, that ordinarily questions of diligence and negligence, including proximate cause, are for the jury, we also recognize it to be the duty of the court to determine those questions in clear, palpable, and indisputable cases. Evans v. Georgia Northern R. Co., 78 Ga. App. 709, 712 ( 52 S.E.2d 37), and cit.; and this latter rule is frequently enforced as a result of the necessary application of the proper rules of construction to pleadings. `It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties.' Krueger v. MacDougald, 148 Ga. 429 (1) ( 96 S.E. 867); Slade v. Barber, 200 Ga. 405, 412 ( 37 S.E.2d 143); McEntire v. Pangle, 197 Ga. 414 ( 29 S.E.2d 503)." Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351 ( 94 S.E.2d 612).

A negligent act is not actionable unless negligent as to the plaintiff. Central of Ga. Ry. Co. v. Griffin, 35 Ga. App. 161 ( 132 S.E. 255); Haley Motor Co. v. Boynton, 40 Ga. App. 675 ( 150 S.E. 862).

While, as a general rule, an independent contractor is liable for injuries caused by his own negligence or that of his servants in the course of his performance of the work or in failing to leave the premises in as safe a condition as they were found (65 C. J. S., p. 611, § 95), it is a well established general rule that, where the work of an independent contractor is completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection. 65 C. J. S. 613, § 95; Young v. Smith Kelly Co., 124 Ga. 475 ( 52 S.E. 765, 110 Am. St. R. 186, 4 Ann. Cas. 226), and citations.

There are, of course, well recognized exceptions to this general rule. One such exception is that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous. Another is that the contractor is liable where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons. 65 C. J. S. 614, § 95; Higgins v. Otis Elevator Co., 69 Ga. App. 584 ( 26 S.E.2d 380).

If the work performed by the contractor is not shown to come within one of the exceptions to the general rule, when the work is finished by him and accepted by his employer, the liability of the former generally ceases and the employer becomes answerable for damages which may thereafter accrue from the defective conditions of the work. 27 Am. Jur. 514, § 37.

Under an application of the foregoing principles of law, the trial court did not err in sustaining the general demurrer to the petition as finally amended, as, construed most strongly against the pleader, the allegations of the petition fail to show any breach by the defendant of a duty owed the plaintiff. It is alleged that the work was performed by the defendant under a contract with the owner of the property and that the work was performed pursuant to the terms of the defendant's contract with such owner, but it is not alleged that the removal of the porch constituted a nuisance, that the work was inherently or intrinsically dangerous or that it was imminently dangerous to third persons. It was, therefore, necessary, in order to show a breach of duty owed by the defendant to the plaintiff, to allege that the work was still going on and under the control of the defendant contractor and that the work had not been completed and accepted by the owner. In the absence of such an allegation, it is reasonably inferable that the work had been completed, accepted by the employer, that the defendant's liability had ceased, and the employer-landlord had become answerable for damages which thereafter accrued from the defective condition of the work.

Judgment affirmed. Gardner. P. J., and Townsend, J., concur.