GULF OIL CORPORATION v. STANFIELD., 213 Ga. 436, 99 S.E.2.d 209 (1957)

Status: SUBMITTED

Docket Number: 19729

Parts: HEAD, Justice.

Linked as:

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W. T. Roberts, Martin, Snow & Grant, Hollis Fort, Jr., A. C. Felton, III, W. F. Blanks, contra.Harris, Russell, Weaver & Watkins, for plaintiff in error.

The trial court properly sustained the general demurrers of the defendant Gulf Oil Corporation, and the Court of Appeals erred in reversing this judgment.

Certiorari to Court of Appeals -- 95 Ga. App. 349.

Charles H. Stanfield filed an action for damages for the homicide of his minor daughter against C. B. Johnson, Sr., Wilbur Rodgers, and Gulf Oil Corporation. The general demurrers of Gulf Oil Corporation were sustained by the trial judge. The Court of Appeals reversed this judgment. Stanfield v. Johnson, 95 Ga. App. 349 (98 S. E. 2d 106). This defendant's application for certiorari was granted by this court.

From the petition it appears: At the time of the injuries complained of, the plaintiff's daughter was a guest in the car of C. B. Johnson, Sr., which was being used and operated by his son, C. B. Johnson, Jr. The car of the defendant Johnson was parked on the unpaved portion of intersecting highways 49 and 26, when it was struck by a pick-up truck which was being operated at an unlawful rate of speed by Grady Rodgers, the minor son of the defendant Wilbur Rodgers. The car of the defendant Johnson was forced into a steel pole erected by Gulf Oil Corporation, which steel pole stopped the forward movement of the pick-up truck and the car, causing the plaintiff's daughter to be thrown through the door of the car, receiving the injuries from which she died. "This illegal erection of the sign on the steel pole by the defendant Gulf Oil Corporation acted as an invitation to the defendant Johnson to illegally park his car on the right of way at the point in question."

The petition specifies the alleged negligence of Gulf Oil Corporation as follows: "Gulf Oil Corporation was negligent in the erection and maintenance of the sign suspended from a steel pole on the right-of-way at the point of intersection of State Routes numbers 49 and 26, which is negligence per se. In illegally erecting and maintaining a sign on the steel pole solidly embedded in the earth, constituting a hazard to the traveling public and a dangerous obstruction at the point involved in this controversy."

A breach of duty to the State does not necessarily involve a breach of duty to others. Hence the violation of a penal statute can not be relied upon as actionable negligence, unless such violation is the proximate cause of the injury.

"The mere fact that the plaintiff on the one hand, or the defendant on the other, was engaged in violating the law in a given particular, at the time of the happening of the accident, will not bar the right of action of the former, nor make the latter liable to pay damages, unless such violation of law was the efficient cause of the injury." Central of Ga. Ry. Co. v. Moore, 89 Ga. App. 116, 118 (78 S. E. 2d 871).

In Atlanta, B. & C. R. Co. v. Smith, 80 Ga. App. 723 (57 S. E. 2d 338), it was said that the absence of a license to practice medicine will not of itself authorize an inference of negligence where one attempts to operate upon another and injures him. In Hudgens v. Douglas, 84 Ga. App. 665 (67 S. E. 2d 151); Peggy Ann of Georgia, Inc. v. Scoggins, 86 Ga. App. 109, 115 (71 S. E. 2d 89).

"In a suit for damages, where it appears upon the face of the plaintiff's petition that there intervened between the alleged negligence of the defendant and the damage sustained by the plaintiff the independent criminal act of a third person, which was the direct and proximate cause of the damage, the petition should be dismissed on general demurrer." Andrews & Co. v. Kinsel, 208 Ga. 783, 784 (69 S. E. 2d 756); Bowers v. Southern Ry. Co., 10 Ga. App. 367 (3) (73 S. E. 677); Gallovitch v. Ellis, 55 Ga. App. 780 (191 S. E. 384); Pinnell v. Yellow Cab Co., 77 Ga. App. 73 (47 S. E. 2d 774).

In the present case it appears that the criminal act of a third person, which was the direct and proximate cause of the plaintiff's damage, to wit, the operation of a motor vehicle at an excessive and unlawful rate of speed, intervened between the alleged negligence of the defendant Gulf Oil Corporation and the damages sustained by the plaintiff, and the petition was properly dismissed as to this defendant on general demurrer.

1957