Bishop v. Act-O-Lane Gas Service Co.

Full title: BISHOP et al. v. ACT-O-LANE GAS SERVICE COMPANY

Court: Court of Appeals of Georgia

Date published: Dec 2, 1954

85 S.E.2d 169 (Ga. Ct. App. 1954)

85 S.E.2d 169

Opinion

35291.

DECIDED DECEMBER 2, 1954.

Action for damages. Before Judge McClure. Walker Superior Court. May 18, 1954.

Shaw Shaw, for plaintiff in error.

Fariss Fariss, contra.

The acts of 1949 (Ga. L. 1949, pp. 1057 and 1128) were passed for the public benefit and are statutes of public policy. A liquefied-petroleum distributor is without authority of law to release himself from liability by a contract or otherwise because of damage resulting from the negligence of such distributor.

DECIDED DECEMBER 2, 1954.

W. R. Bishop et al. (hereinafter called the plaintiffs) brought suit against Act-O-Lane Gas Service Company (hereinafter called the defendant). The petition as amended reads: "`1. That the Act-O-Lane Gas Service Company is a foreign corporation not domesticated under the laws of Georgia, with its principal office and place of business on East Forty-First Street in the City of Chattanooga, Tennessee, and was engaged in business in the State of Georgia at the time of the injuries and damages suffered by petitioners because of the negligence of said Act-O-Lane Gas Service Company as hereinafter set out. Said Act-O-Lane Gas Service Company has designated F. P. Ryan of Wendy Trail, Lookout Mountain, Georgia, as its agent in said county upon whom service may be perfected, and service on said Act-O-Lane Gas Service Company can be had by service on said agent.

"2. That petitioners are now and were on June 19, 1952 the owners of a two story frame and stucco, composition roof building located on Lots 187, 88 and 89 of Fairyland Estates in Walker County, Georgia, said residence being then and there occupied by the petitioners as a home and being of the reasonable market value of $28,000.

"3. That said Act-O-Lane Gas Service Company was on and prior to the 19th day of June, 1952 engaged in the furnishing of propane gas to purchasers and particularly was engaged in the business of furnishing liquid gas for use in residences. As a part of its business, the said Act-O-Lane Gas Service Company installed tanks on the premises of customers for the purpose of storing therein propane gas to be supplied to the residence of the customer, the tank being the property of said Act-O-Lane Gas Service Company. Prior to the 19th day of June, 1952, and about August 8, 1951, the said Act-O-Lane Gas Service Company had installed on the premises of petitioners, directly under the kitchen window of the residence, as hereinbefore set out, a tank for the purpose of storing therein gas for the use of petitioners in their said residence. The installation of this gasoline storage tank and the undertaking on the part of said Act-O-Lane Gas Service Company to furnish gas for use of petitioners in said residence was on the written request of petitioner, W. R. Bishop. A copy of this request being hereunto attached, marked `Exhibit A', and made a part of this amendment. The said Act-O-Lane Gas Service Company, after the installation of said tank, from time to time, as needed, filled said tank with propane gas for the use of petitioners in their said residence."

Exhibit "A", mentioned in this paragraph, reads: "The undersigned requests the Act-O-Lane Gas Service Company, Incorporated, to supply gas for domestic purposes at the above address or any subsequent address desired by the undersigned and agrees to pay for all the gas supplied from August 8, 1951, until three days after written notice is given the company at its office to discontinue the supply, and agrees to the following terms and regulations of the company: The company will supply gas only through its own meters. These meters shall be installed by the company and shall forever remain the property of the company and at the termination of this contract the company shall have the right to enter upon the premises and take the meter into its own possession. The company shall be under no obligations to make any refund to the customer or payment of any nature whatsoever, as it is expressly understood between these parties that the customer has no right, title or interest in the meter, as it belongs solely to the company. If a meter fails to register correctly, the amount shall be estimated by the amount registered by another meter set in lieu thereof or by the amount registered during the corresponding period of a previous year, as the company may elect.

"The undersigned shall insure the company against loss of meter, regulators, cylinders, and/or tanks or injury thereto. It is understood that the regulators, cylinders and/or tanks are the sole property of the company, and that the company may enter upon the premises of the customer and remove the meters, regulators, cylinders and/or tanks at any time upon the termination of this contract, and the customer shall not be entitled to any refund or remuneration whatsoever. It is understood and agreed between the parties to this contract that the customer has no interest, title or claim whatever to the meters, regulators, cylinders and/or tanks. In case of a gas leak the undersigned will immediately notify the company, will see that no light is taken near the escaping gas, and that gas is shut off at service or meter cock, as the company will not be responsible for damage or loss caused directly or indirectly by escaping gas. The company's agents are to have access to meters, regulators, cylinders, and/or tanks and pipes at all times to inspect them, to read meters, to stop supply of gas, for non-payment of any account due the company which should be thirty days in arrears from applicant, for the purpose of removing meter, regulators, cylinders and/or tanks or any other property belonging to company or for any purpose whatsoever. The meter regulators, cylinders, and/or tanks, and meter connections placed in said premises by the company or its predecessors or successors shall be removed only by said company or its successors. The undersigned also agrees to pay a minimum charge of one dollar for each month when no gas is used, or the gas used amounts to less than one dollar."

Paragraph 4 reads: "That on June 19, 1952, an agent and employee of said Act-O-Lane Gas Service Company, whose name is unknown to petitioners, refilled said gas tank located on petitioners' premises with butane gas. This gas, when placed in a storage tank such as the tank installed on the premises of petitioners, being of a gaseous form, builds up a pressure and the tank was supplied with a safety valve for the purpose of preventing the tank from exploding in the event of excessive pressure. The care, custody and control of this storage tank and the safety valve placed thereon was entirely the responsibility of said Act-O-Lane Gas Service Company and petitioners had nothing whatever to do therewith. On June 19, 1952, said agent and employee of said Act-O-Lane Gas Service Company filled said tank in excess of 52% of its total water capacity, the exact excess being unknown to petitioners, thus causing the gas placed in said tank to build up an excessive and unsafe pressure, causing the safety valve on said tank to give way, permitting gas to escape from the tank, which was directly under the kitchen window and within 10 feet of the dwelling, and the gas which escaped from the tank entered the kitchen through the window and was ignited by the gas stove pilot light, which was at all times lighted, causing an explosion which set fire to petitioners' said residence causing serious damage thereto, as hereinafter more particularly set out. The igniting of the gas and the damage to petitioners' said residence occurred about 4 o'clock p. m. on the 19th day of June, 1952, and the gas tank had been filled by an agent and employee of said. Act-O-Lane Gas Service Company on June 19, 1952, several hours prior to the time of the explosion, the exact time being unknown to petitioners. The filling of said tank by the agent and employee of said Act-O-Lane Gas Service Company in excess of 52% of the total water capacity was in violation of the rules and regulations of the Fire Marshal of the State of Georgia, which provides that underground containers of all capacities shall not exceed 52% of the total water capacity, was gross negligence upon the part of said defendant. Said defendant was negligent in locating said tank within 10 feet of said residence and the placing of said tank within 10 feet of the residence was in violation of Section B-5, paragraph (a) of the State Rules and Regulations which provides that containers shall be located outside of buildings and each individual container shall be located a minimum distance of 10 feet from the building. The defendant was negligent in that, by and through its servant, agent and employee, it did convey gas into said tank, knowing that it was located less than 10 feet from the plaintiff's house, and such action was in violation of Section B-18 of the rules of the Fire Marshal which provide that no person, firm, or corporation shall introduce liquefied petroleum gas into a dispensing or storage tank in this State where the dispensing or storage tank is known to be in an unsafe condition. Plaintiffs charge that the damage suffered by them as herein set out was due to the gross negligence of the defendant, its servants, agents and employees in continuing to service said tank while said tank was located in close proximity to the residence in violation of Section B-5, paragraph (a) of the State Rules and Regulations for the handling of said gas. (b) In pumping into said tank more than 52% of the water capacity in violation of Section B-11 of the State Rules and Regulations of the handling of butane gas."

Paragraph 5 and 6 itemize the resulting damages as caused by this negligence.

The defendant demurred to the petition as amended as follows: Paragraph 1 of the demurrer alleges that the allegations of the petition show no cause of action.

Paragraph 2 reads: "Defendant demurs to the petition as amended and moves its dismissal upon the ground that it affirmatively appears from the petition and the amendment thereto that there could be no recovery against defendant; that defendant is not liable for the alleged loss by fire caused by escaping gas; and that the petitioners seek relief to which they are not entitled under the express terms of their order or contract copy of which is annexed to the amendment filed to the plaintiffs' petition. In this connection defendant calls attention to the following allegation as the same appears in the second paragraph of the amendment to the plaintiffs' petition: `On June 19, 1952, from the overloading of the tank and because of a defective safety valve, the safety valve on said tank gave way, permitting gas to escape from the tank which was directly under the kitchen window; and the gas which escaped from the tank entered the kitchen through the window and was ignited by the gas stove pilot light which was at all times lighted and burning by petitioners, causing an explosion which set fire to petitioners' said residence causing serious damage thereto.'

"And in this connection defendant calls attention to the following provision contained in the order or contract under which, according to the allegations of the amendment, the gas was placed into the tank: "The undersigned requests the Act-O-Lane Gas Service Company, Inc., to supply gas for domestic purposes at the above address or any subsequent address desired by the undersigned and agrees to pay for all the gas supplied from August 8, 1951, until three days after written notice is given the company at its office to discontinue the supply, and agrees to the following terms and regulations of the company: In case of a gas tank leakage the undersigned will immediately notify the company, will see that no light is taken near the escaping gas, and that gas is shut off at service or meter cock, as the company will not be responsible for damage or loss caused directly or indirectly by escaping gas."

Paragraph 3 reads: "Defendant demurs to the petition as amended upon the ground that it appears from the exhibit annexed to the amendment that the plaintiffs were bound or obligated under their order or contract, in case of a gas leak, to immediately notify defendant and to see that no light was taken near the escaping gas, and that the gas was shut off at the service or meter cock. Yet it appears from the amendment that the plaintiffs kept a pilot light on a gas stove lighted at all times which ignited the escaping gas; and it is not alleged that the plaintiffs immediately notified the company as they were bound to do in case of a gas leak, or that they shut off the gas at the service or meter cock. These violations of the terms and provisions of the order or contract, and the failure of the plaintiffs to comply or abide by their obligations under the same preclude a recovery on their part."

In paragraph 4 the defendant renewed its demurrer to the fourth paragraph of the original petition. That paragraph of the demurrer reads: "Defendant demurs to the averments of the fourth paragraph of the petition and moves to strike the same upon the grounds said allegations are vague, uncertain, equivocal and utterly lacking in the definiteness required by law to put defendant on the notice to which it is entitled in reference to the claim against it, in that, (a) It is not alleged what a normal load for the tank is, or how much gas it took to overload the same; it is not alleged that the employee of defendant knew or should have known how much gas to put into the tank in order to fill it without overloading it, or that he was warned by the petitioners or given any direction or instruction in reference to placing the gas into the tank.

"(b) It is not alleged who placed the tank directly under the window of the house referred to, or whether the window of the house was open at the time referred to in said paragraph, and if so, who opened it. It is not alleged how the gas referred to got into the house referred to.

"(c) It is not alleged who left the stove referred to burning, or when the explosion and fire referred to occurred in reference to the time it is alleged the gas was placed in the tank."

After hearing argument the court passed the following order dismissing the petition: "Upon argument of counsel, upon hearing of demurrers of defendant to the petition of plaintiffs, as amended, and it being stipulated and agreed between the parties through their counsel that the meter order, copy of which is attached as `Exhibit A' to the amendment of plaintiff filed Apr. 21, 1954, although signed only by W. R. Bishop one of plaintiffs and husband of the other plaintiff, Mary S. Bishop, was signed by W. R. Bishop for himself and as authorized agent of his wife, Mary S. Bishop, therefore: The renewed demurrers, 1st, 2nd 3rd of defendant to the petition of plaintiff as amended are hereby sustained and said petition is dismissed. The plaintiffs having filed a second amendment to their petition on this date, May 18, 1954, the fourth demurrer of defendant attacking paragraph 4 of the petition of plaintiffs as amended is hereby overruled." On this judgment the plaintiff assigns error.

GARDNER, P. J.

In considering the questions presented to this court for decision, it must be kept in mind that the General Assembly, following the unfortunate and disastrous Winecoff Hotel fire set about enacting legislation for the protection of the public against fires destructive to life and property. The first of these acts will be found in Ga. Laws 1949, p. 1057. The caption of that act is as follows: "An Act to enact a law having for its purpose the prevention of the destruction of life and property by fire, explosion or related hazards; to create, for such purpose, the office of Georgia Safety Fire Commissioner, and to designate the Insurance Commissioner, as such officer, vesting him with the power and duty to enforce this law; to provide for a Board of Appeals to advise with the Commissioner; to provide for the appointment of a State Fire Marshal, Deputy Fire Marshal, State Fire Inspectors, local fire marshals and to prescribe their duties; to provide for the payment of salaries and the other expenses of said office in carrying out this law; to provide for the inspection of buildings, their facilities and appurtenances for ascertaining the existence of fire hazards, causing their correction and ascertaining compliance with required safety standards for the prevention of fires and explosions; to authorize the Commissioner to promulgate rules and regulations for the prevention of fires; to promulgate rules and regulations governing certain fire hazards in hotels, apartment houses, warehouses, storage places, department stores and places of public assembly, and for the enforcement of this law; to provide for the investigation by the Commissioner and his officers of the causes of fires and the arrest of persons criminally responsible therefor; to provide penalties for violating the provisions of this law; to provide other methods for carrying out the purposes of this law; to repeal an Act approved March 28, 1947 (Georgia Laws 1947, pp. 1452 et seq.) styled the Georgia Building Safety Law; to repeal certain sections of the Code of 1933 to wit: 56-111, 56-112, 56-113, 56-114 (excepting that part relating to a tax on fire insurance premiums) and 52-205, which are superseded by this Act, and all other laws in conflict herewith; and for other purposes."

This act provided for the office of "Georgia Safety Fire Commissioner" and that "The Insurance Commissioner, ex officio, shall be the Georgia Safety Fire Commissioner." This act provided that the said Commissioner shall appoint a State Fire Marshal. There are many provisions in that act to carry out the purposes thereof, which we will not now set forth, except we would like to call particular attention to section 30, p. 1068 of the act, which reads in part as follows: "It is declared that this Act is necessary for the public safety, health, peace, and welfare, is remedial in nature, and shall be construed liberally."

The act above referred to was approved February 25, 1949. There was another act approved on the same date known as the "Liquefied Petroleum Safety Act," the caption of which (Ga. Laws 1949, p. 1128) reads: "An Act to prescribe uniform regulations for the distribution, sale, and use of liquefied petroleum gases; to designate the Insurance Commissioner as the enforcing officer; to prescribe his duties; to empower and authorize the Insurance Commissioner to adopt, promulgate, and enforce rules and regulations; to provide for licenses and permits; to appropriate funds for the purpose of carrying out this Act; to provide for penalties; to repeal conflicting laws; and for other purposes."

To give effect to the acts of the General Assembly, the two acts should be construed together, as both sought to remedy the evil which then existed, and the acts prescribed a remedy for the public good. The General Assembly defines liquefied petroleum gas to mean and include "any material which is composed predominately of any of the following hydrocarbons, or mixtures of the same; propane, propylene, butanes (normal butane or isobutane) and butylenes." The Liquefied Petroleum Safety Act provided that the Insurance Commissioner, ex officio, shall be designated as the officer charged with the duty and authority of enforcing the act. Section IV of the Liquefied Petroleum Act provides: "The Commissioner shall make, promulgate, adopt and enforce rules and regulations setting forth minimum general standards covering the design, construction, location, installation and operation of equipment for storing, handling, transporting by tank truck, tank trailer, and utilizing liquefied petroleum gases and specifying the odorization of said gases and the degree thereof. Said rules and regulations shall be such as are reasonably necessary for the protection of the health, welfare, and safety of the public and persons using such materials, and shall be based upon reasonable substantial conformity with the generally accepted standards of safety concerning the same subject matter. [Italics ours.] The said Commissioner is hereby authorized and empowered as a prerequisite to a license or permit to require the applicant for such license or permit to furnish insurance, surety bond or a personal bond with security in such amounts and terms as the said Commissioner may deem advisable and expedient for the protection of the general public and to indemnify for losses and damages which approximately result from any act of negligence of the principal, his agents or employees while he or they may be engaged in the performance of duties with reference to the liquefied petroleum business; also to adopt and enforce reasonable rules and regulations governing such insurance and bonds. Such regulations shall be adopted by the Commissioner only after such a public hearing thereon.

"The Commissioner shall promulgate rules and regulations based upon reasonable substantial conformity with the published standards of the National Board of Fire Underwriters for the design, installation and construction of containers and pertinent equipment for the storage and handling of liquefied petroleum gases as recommended by the National Fire Protection Association shall be deemed to be in substantial conformity with the generally accepted standards of safety concerning the subject matter."

Section VIII of the act reads: "It shall be unlawful for any person, firm, association or corporation, on and after the effective date of this Act, to violate any of the provisions hereof or of the rules and regulations of the Commissioner made pursuant hereto."

Section IX reads: "No municipality or other political subdivision of this State shall adopt or enforce any ordinance, rule or regulation in conflict with the provisions of this Act, or with the rules and regulations adopted and promulgated by the Commissioner under the terms and authority of this Act."

Section X reads: "The General Assembly of Georgia hereby finds, determines and declares that this Act is necessary for the immediate preservation of the public peace, health and safety."

The gist of the defendant's contention is that the court correctly sustained the general demurrer to the petition and dismissed it because the release from the contract which the defendant procured from the plaintiff relieved the defendant of any resulting damage caused by the negligence of the defendant in installing the equipment and servicing the premises with butane gas. We cannot agree with the defendant gas distributor. The whole scheme and purpose of the two acts of the General Assembly to which reference has been made hereinbefore was to protect the public, and the General Assembly made all the provisions of the two acts a matter of public policy. Here we have a situation where the defendant makes application to the Fire Commissioner for a license to distribute butane gas, and receives a license to do so from the Fire Commissioner on the condition that the defendant would comply with the rules and regulations of the Fire Commissioner and would comply with the act of the General Assembly, and, on the other hand, obtains a release from a member of the general public, to the effect that the defendant would not have to comply with such rules and regulations. If this defendant can do this with reference to the distribution of such a dangerous instrumentality as butane gas and other like gases, why can not this defendant or someone else rent or purchase a hotel, inn, or a boarding house, and when a guest registers, have such person sign and waive any claim for damages caused by the negligence of such owner or renter of a hotel, inn, or boarding house, and then, when called to account for violating the law of the State and rules and regulations of the Fire Commissioner, rely on the theory and ground that an unsuspecting layman and member of the public can, by a release or contract, nullify the laws of Georgia and the rules and regulations of the Fire Commissioner? Such an attitude, according to our way of thinking, is untenable.

In Bray v. Atlanta Gas Light Co., 46 Ga. App. 629 ( 168 S.E. 96), the Court of Appeals said: "Inflammable gas, when coming in contact with fire . . . is a highly dangerous substance, and a duty rests upon one having it under control to exercise due care to prevent its escape where it might become ignited and explode and cause injury and damage. Chisholm v. Atlanta Gas-Light Co., 57 Ga. 29; 28 C. J. 589, 591; Christo v. Macon Gas Co., 18 Ga. App. 454 ( 89 S.E. 532); Mayor c. of Unadilla v. Felder, 145 Ga. 440 ( 89 S.E. 423)." Harvey v. Zell, 87 Ga. App. 280 ( 73 S.E.2d 605) held: "The petitions stated a cause of action for the alleged negligence of the defendant, as a distributor of butane gas, in filling a gas tank beyond the capacity fixed by the rules and regulations of the State Fire Marshal, and in filling the tank at all when it was in an unsafe condition — namely, within less than ten feet of the residence, contrary to the rules and regulations of the Fire Marshal — and the trial court erred in sustaining the general demurrers to the petitions."

Code § 102-106 provides: "Laws made for the preservation of public order or good morals cannot be done away with or abrogated by any agreement; but a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest."

Our attention is called to Code § 20-704 (5), as follows: "If the construction is doubtful, that which goes most strongly against the party executing the instrument, or undertaking the obligation, is generally to be preferred." Under our construction, this section as applied to the facts of the instant case has no such application as is invoked by the defendant.

Our attention is called also in this connection to Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (2, 3) ( 72 S.E. 295) as follows: "2. A person may lawfully waive the benefit of a statutory provision, where the rights of third persons are not involved, unless such waiver violates public policy. 3. The only authentic and admissible evidence of public policy of a State, is its constitution, laws, and judicial decisions. Courts should guard with jealous care the rights of private contracts, and give to them full effect when possible so to do. The provisions of the Civil Code (1910) Sec. 4253 et seq. should not be enlarged without convincing and conclusive reasons." (Italics ours.)

The following cases do not aid the defendant, under the facts of the instant case: Zachry v. Industrial Loan c. Co., 182 Ga. 738, 748 ( 186 S.E. 832); Guptill v. Macon Stone Supply Co., 140 Ga. 696 ( 79 S.E. 854, Ann. Cas. 1915A, 1249); Barfield v. City of Atlanta, 53 Ga. App. 861, 868 ( 187 S.E. 407); Russell v. Smith, 77 Ga. App. 70 ( 47 S.E.2d 772); Southern Ry. Co. v. Turner, 75 Ga. App. 219 ( 42 S.E.2d 790); Holden v. Royal Mfg. Co., 79 Ga. App. 767, 770 ( 54 S.E.2d 317).

Regarding the principle of public policy, we call attention to the many decisions which will be found in Ga. Digest, sections 101 (2), 123 (1), 138 (2), and 342. We are quite sure that, where counsel for the defendant and the court went wrong is in overlooking the fact that the acts of the General Assembly in question prohibited liquefied-gas distributors from doing certain things. These acts do not confer any benefit or privilege or right on any member of the public which could be waived. The provisions of the Liquefied Petroleum Safety Act (Ga. L. 1949, p. 1057) were for the purpose, as stated in section 10 of the act, of preserving public peace, health, and safety, and the regulation of explosive substances covered under the act would have such effect. Accordingly, it would be contrary to public policy to allow the provisions of the act to be abrogated by agreement. Section 4 provides that the Insurance Commissioner, as ex officio Georgia Safety Fire Commissioner, shall adopt rules and regulations "for the health, welfare, and safety of the public and persons using such materials" regarding the construction, location, installation, and operation of equipment here involved. The petition alleges that the fire which injured the plaintiff's property directly and proximately resulted from negligence on the part of the defendant in violating two of the rules and regulations of the Commissioner, promulgated under authority of the act, as follows: (a) in filling the tank in excess of 52% of its total water capacity, and (b) in locating the tank within 10 feet of a residence. Violations of valid rules and regulations of the Commissioner would constitute negligence per se ( Maner v. Dykes, 55 Ga. App. 436, 190 S.E. 189), whether alleged as negligence per se or merely as negligence ( Whitley Construction Co. v. Price, 89 Ga. App. 352 (1b), 79 S.E.2d 416), and although a violation of such regulations could not be made the basis of criminal prosecution ( Glustrom v. State, 206 Ga. 734, 58 S.E.2d 534; Long v. State, 202 Ga. 235, 42 S.E.2d 729).

Where, as here, the defendant made the installation on the plaintiff's property, it would be contrary to the regulations, and accordingly contrary to law, for the parties to agree that it be made in violation thereof. Such agreement would be against public policy and therefore void. The exception in Code § 102-106, that "a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest," has no application to such a situation. Since that construction should be placed upon a contract which will uphold rather than avoid it, it follows that the clause in the contract between the plaintiff and the defendant, that "the company will not be responsible for damage or loss caused directly or indirectly by escaping gas," should not be construed to include escaping gas which results from the violation by the defendant of the rules imposed upon it under authority of law for the protection of the public safety and welfare, because, if it were so construed, it would be void as in contravention of public policy. If, on the other hand, it was not the intention of the parties to protect the defendant from violations of the rules promulgated under the act, then the contract terms would not defeat an action based upon negligence and injury proximately resulting from such violations.

The petition sets forth a question of fact for the jury to determine. The court erred in dismissing the petition on demurrer.

Judgment reversed. Townsend and Carlisle, JJ., concur.