Reed Oil Co. v. Smith , 27 Ga. App. 470 ( 1921 )

Hill, J.

(After stating the foregoing facts.) 1. No error appears in the rulings of the trial court on the demurrers filed to the petition. The allegations of the petition clearly, fully, and distinctly set forth a cause of action against the Reed Oil Company, either severally or jointly with the other two defendants, and were entirely sufficient to withstand a general demurrer, and there was no merit in any of the special demurrers of that company.

2. The colloquy between the court and counsel, set out. in the motion for a new trial, was not cause for a new trial. Trial judges have the right to overrule motions without hearing argument, if they do not desire to hear argument. While the overruling of the motion to direct k verdict for the defendant, without hearing argument in support of the motion, may have tended to prejudice the case of the movant before the jury, such prejudicial consequence must be attributed to the conduct of the attorney in making the motion in the presence of the jury. Any prejudicial eifect from the ruling on a motion can be easily prevented by counsel, before he presents the motion to the court, by requesting that the jury be ordered to retire while the motion is being submitted or argued.

3. The charge of the court in eifect that the defendant oil company was not authorized to take possession of the car in question for any purpose without first having paid the draft or without having obtained the permission of the shipper, the shipment being what is ordinarily called an “ order notify ” shipment, was correct. Southern Ry. Co. v. Hodgson Brothers Co., 148 Ga. 851 (98 S. E. 541); Southern Ry. Co. v. Massee & Felton Lumber Co., 23 Ga. App. 309 (98 S. E. 106); Merchants & Miners Transportation Co. v. Moore, 124 Ga. 482 (52 S. E. 802).

4. The refusal to give the requested instructions was not erroneous for any of the reasons stated; the charge having fully and correctly applied the law to the facts of the ease.

5. This leaves in the case only the main question, as to whether there is evidence in the record sufficient to support the verdict. The negligence alleged against the Reed Oil Company, upon which the verdict is probably based, was, first, the act of the president instructing its employee to take possession of the tank-car and inspect the contents before it was delivered by the railroad company in accordance with the bill of lading, and the manner in which that unauthorized act was performed by the employee. The evidence is undisputed that in attempting .to enter the car and find out its contents this employee violated the express order of the interstate-commerce commission that “the dome cover should not be hammered and should not be unscrewed until the absence of vapor pressure in the tapk is verified by lifting the safety valve.” The employee himself testified that, being unable to lift the safety valve, he took a piece of iron and hammered and loosened the cap of the dome, permitting the vapor to escape. While this court is of the opinion, as before ruled, that the defendant had no right to take possession of this car at all, under the facts, or to make an inspection of its contents in any manner or for any purpose, in view of the fact that the car had not been delivered to the oil company in accordance with the bill of lading, yet it must be admitted that the method of entering the tank-car, in violation of the express rule of the interstate-commerce commission, constituted negligence which imposed upon the oil company responsibility for all of the reasonable, natural, usual, and ordinary consequences. From this evidence the jury were authorized to find that the vapor would not have escaped, with the resulting damage, except for this negligent act of the employee of the company. Even, therefore, conceding, as contended by the plaintiff in error, that the act of the shipper in loading this highly volatile and inflammable gas into the tank-car, in violation of the instructions of the consignee and without notifying either the railroad or the consignee of that fact,’ constituted negligence, yet the jury could have inferred that the intervening agency, which did in fact cause the death of the plaintiff’s son, and permitted the gas to escape from the tank-car, was due to the negligent conduct of this employee. However negligent the act of the shipper may have been, it would have been harmless but for the negligent act of the oil company through the conduct of its employee. Whether, if the tank-car had been loaded with ordinary gasoline, this negligent conduct would have itself caused the explosion is a matter of pure speculation. But the orders and rules of the interstate-commerce commission clearly indicate that gasoline of any sort is dangerous when in the proximity of an exposed flame. The tank-car was within about five feet of the vulcanizing plant, which contained an open furnace, itself only about ten feet from the car, and according to the testimony of the president of the defendant, as well as the employee in question, both had knowledge of the proximity of the fire to the car. The case having been fully and fairly submitted to the jury after an able and exhaustive charge, and. there being evidence to support the verdict against the defendant oil company, the judgment overruling the motion for a new trial is affirmed.

Judgment affirmed.

Stephens, J., concurs. Jenkins, P. J., disqualified.