Opinion
34411.
DECIDED FEBRUARY 28, 1953. REHEARING DENIED MARCH 12, 1953.
Action for damages; from Fulton Superior Court — Judge Pharr. October 13, 1952.
J. C. Bowden, A. G. Smith, for plaintiff in error.
Scott Hogg, George Carroll, Dunaway, Howard Embry, contra.
1, 2. When the petition is construed most strongly against the pleader (as it must be on demurrer), the plaintiff failed to state a cause of action against any of the defendants, and the trial court did not err in sustaining their general demurrers.
DECIDED FEBRUARY 28, 1953 — REHEARING DENIED MARCH 12, 1953.
Jeff Carter brought an action for damages against Tom. J. Callaway, Joe Whittle, and Gas Incorporated. The material allegations of the petition are substantially as follows: The defendant Callaway, an individual, owns and operates a tourist court, consisting of a group of small houses or cabins, located in Fulton County, and rents them to guests for profit. The defendant Whittle is the manager of the tourist court and acts as vice-principal and alter ego of the defendant Callaway, and Whittle has full charge and control of the tourist court, looks after its upkeep, repair, and protection, and gives the directions and instructions for the safety and comfort of the guests. The defendant Gas Incorporated is the vendor of the fuel with which the tourist court is heated. The plaintiff has been a servant and employee of the defendant Callaway, working as janitor and clean-up man, keeping the houses or cabins in order, cleaned and prepared for rental to guests, and in doing so the plaintiff was under the control and direction of the defendant Whittle in the performance of his duties in and about the premises. It was the duty of the plaintiff to report to Whittle the condition of the houses and cabins such as the need for repair of the houses or cabins and the fixtures. Prior to March 10, 1952, the houses or cabins were supplied and equipped with gas heaters and stoves for the comfort of the guests. The gas was supplied to the heaters and stoves through pipes connected to a main gas tank. The defendant Whittle, in his capacity as manager and acting as aforesaid, purchased propane or butane gas from the defendant Gas Incorporated and used the same for heating and cooking in the tourist court. At infrequent intervals, that is to say, several times during the winter prior to March 10, 1952, one of the two named gases escaped from the pipes, heaters, or stoves. The particular points of escape are unknown to the plaintiff. The gas, on those occasions, would escape and accumulate in certain of the houses or cabins, and the plaintiff, at such times, would notify the defendant Whittle thereof. Whittle would have the pipes, heaters, and stoves inspected and examined, and assure the plaintiff that all defects were corrected and that it would be safe for the plaintiff to work in the houses and cabins. Relying upon Whittle's assurances and believing that the defendants, Callaway and Whittle, would furnish him a safe place in which to work and believing that the instrumentalities were safe from latent or patent danger, the plaintiff continued to perform his duties as an employee. The defendant Gas Incorporated, having knowledge and notice that it was furnishing said gas to the defendants, Callaway and Whittle, and knowing that the said pipes, stoves, and heaters were defective and not properly fitted to prevent the leaking of gas into the houses and cabins, knew that to furnish gas as alleged was dangerous to persons coming in contact with the gas after it had escaped from the instrumentalities as alleged, and knowing that the gas is extremely inflammable in contact with a lighted match or flame, and knowing that the said pipes, heaters, and stoves had been leaking into said houses and cabins, the defendant Gas Incorporated furnished the said gas to the defendants, Callaway and Whittle, when it knew that they would continue to use the gas for heating and cooking, and the defendant corporation thereby contributed to the plaintiff's injuries and damage. The defendant corporation also instructed and advised the other defendants how and in what manner to use the gas, knowing at the time the dangers therein, and the advice and instructions were followed by those defendants. It is further alleged that the defendant corporation knew that the gas is odorless, invisible, and noiseless and cannot be detected by any of the human senses when escaping until it comes in contact with a flame, in the event of which the defendant corporation knew that it was deadly dangerous; and, with knowledge that said pipes, stoves, and/or heaters were leaking, or that gas was escaping therefrom, the defendant corporation continued to furnish the defendants, Callaway and Whittle, the said gas and thereby furnished the principal cause of the plaintiff's injuries and damage. On March 10, 1952, at about 4:30 p. m., the plaintiff went into house or cabin number 21, owned and operated by the defendants, Callaway and Whittle, to prepare it for the use of guests. He entered by way of the back door, closed the door behind him, and then and there the wind blew the door open, whereupon an explosion occurred as hereinafter related. At the time the plaintiff entered the house or cabin, he did not detect the gas that had formerly escaped as hereinbefore related and indicated, and he could not detect the same by smell, sight, feeling, or hearing, and the plaintiff had no other means of detecting that gas had escaped in the said house or cabin. A pilot light was burning on the stove or heater located in the house or cabin, indicating that there was no danger lurking therein, as the plaintiff assumed that had there been gas escaping the pilot light would have burned such gas as it escaped. The plaintiff had no reason to think or to except that there was a hidden danger in the said house or cabin, as the defendant Whittle had previously known that gas had been leaking or escaping as hereinbefore related and had had the pipes, stoves, or heaters checked, repaired, and inspected, and at all times assured the plaintiff that all defective conditions in the pipes, stoves, and heaters had been corrected, and that there would be no danger in going into the houses or cabins, and the plaintiff relied upon those assurances, believing that there was no danger, patent or latent, of escaping gas in the houses or cabins. The plaintiff is a common laborer and had no knowledge of the nature of the gas and had had no experience with it prior to March 10, 1952, except for knowing that the gas had been escaping and repairs had been made as aforesaid. Prior to the plaintiff's employment by the defendants, Callaway and Whittle, he had been a farm laborer for twenty-five years. At the time the plaintiff entered the house and closed the door behind him, the wind blew the door open, and before he could close it again the wind stirred the gas in the cabin and in some way brought the gas in contact with the pilot light burning on the stove or heater, causing the ensuing explosion which blew the window panes of the cabin out and hurled the personal effects therein and the plaintiff about, as a result of which he suffered enumerated personal injuries. At the time the plaintiff entered the said house or cabin, he was exercising due care and caution as an employee; he could not and did not detect the presence of the gas which had escaped; he had no reason to think or believe that the gas had escaped because of the assurance of the defendant Whittle that all the pipes, joints, and connections, and the stoves and heaters were repaired and safe from danger. It is further alleged that the plaintiff did not have equal knowledge with the defendants, Callaway and Whittle, of the dangers of the escaping gas; he did not know equally with the defendants that the gas might escape, and did not know by his past experience that such explosion would or could take place. The defendants are alleged to have been negligent in the following ways: All the defendants were equally, concurrently, jointly and severally negligent in contributing to the plaintiff's injuries. The defendant Callaway was negligent in keeping, using, and maintaining said houses or cabins equipped with pipes, stoves, or heaters having connections that would and did cause gas to escape, and so using the same after having knowledge of the same, or could and should have had such knowledge by and through his vice-principal Whittle. He was negligent in continuing to purchase and use said gas after knowing that the same would and did escape into said houses, or cabins, as alleged in the foregoing. He was negligent in failing to repair, adjust, fix, and securely tighten said pipes, stoves, or heaters, and the joints thereof and therein in a way that said gas would not so escape therefrom into said houses or cabins, making it highly dangerous for any person to go therein without notice thereof. He was negligent as aforesaid, knowing that the plaintiff was ignorant of the nature of said gas. The defendant Whittle was negligent in failing to adjust, fix, repair, and correct said pipes, stoves, or heaters, and the joints or connections therein, in a way that said gas would not escape. He was negligent also in keeping and using said pipes, stoves, or heaters after having knowledge that the same were leaking or that gas was escaping therefrom into said houses or cabins. He was negligent in assuring the plaintiff, after attempting to repair, fix, adjust, and correct the defects in said pipes, stoves, or heaters from which the gas escaped, that there would and could not be any danger because of said leaking or escaping of gas. He was negligent in permitting, requiring, allowing, and directing the plaintiff to go into said houses or cabins to do his duties and perform his work in cleaning and preparing said houses or cabins for the use of guests; and he was negligent in failing to warn the plaintiff of the danger of escaping gas, knowing that the plaintiff was ignorant of the nature and danger of said gas and knowing of his lack of experience therewith. He was negligent in continuing to purchase and use said gas after knowing that the same would and did escape into said houses or cabins as alleged, and knowing that the same was difficult to sense after so escaping, and further knowing that said gas was in the nature of a hidden danger, after escaping into a closed house, to any person going therein. Both the defendants, Callaway and Whittle, were negligent in failing to furnish the plaintiff a safe place to do his work. The defendant Gas Incorporated was negligent in selling and furnishing said gas to the other defendants after knowing that said gas had been escaping into said houses or cabins from said pipes, stoves, and/or heaters, and from the connections therein. It was also negligent in furnishing said gas, knowing that the same was highly penetrating and dangerous after escaping into the houses or cabins; and it was also negligent in furnishing said gas without giving the plaintiff notice of the danger of the gas after escape into houses or cabins, and that such gas would cause a dangerous explosion after escaping into a closed room.
The general demurrer of each of the three defendants was sustained, and the plaintiff excepted.
1. "`A company which produces and furnishes gas is bound to use such skill and diligence in its operations as is proportionate to the delicacy, difficulty and nature of that particular business.' Chisholm v. Atlanta Gas Light Co., 57 Ga. 29 (1)." Atlanta Gas Light Co. v. Johnson, 76 Ga. App. 413 (1) ( 46 S.E.2d 191).
"Where an appliance for heating water by gas, on private premises, is owned and controlled by the owner or occupant of the premises, a company which did not sell or install the appliance, but merely furnished gas to it, is not responsible for the condition of the appliance, and is not liable to the owner or occupant for injuries caused by its defective condition, unless the gas is supplied by the company, with actual knowledge on its part of the defective and dangerous condition of the appliance. See Hatcher v. Georgia Power Co., 40 Ga. App. 830 ( 151 S.E. 696); 12 R. C. L. 909, § 49; 25 A.L.R. 272; Bell v. Huntington Development Gas Co., 106 W. Va. 155 ( 145 S.E. 165)." Metz v. Georgia Public Utilities Corp., 52 Ga. App. 771 ( 184 S.E. 629).
Under an application of the foregoing principles of law and under a construction of the petition most unfavorable to the pleader, the plaintiff did not state a cause of action against the defendant Gas Inc., and the trial court did not err in sustaining that defendant's general demurrer. The plaintiff does not allege that Gas Inc. sold the appliances to the defendant Callaway, or that it installed them, or that Gas Inc. was under any duty, contractual or otherwise, to inspect the appliance. While it is alleged that, some time prior to the date of the alleged explosion, the plaintiff had discovered that gas had escaped in certain of the houses or cabins of the tourist court, from leaks in the pipes, heaters, and stoves, and while it is alleged that the defendant Gas Inc., "knowing that the said pipes, stoves, and heaters were defective and not properly fitted to prevent the leaking of gas into the houses and cabins, continued to furnish gas to the defendant Callaway," it is nowhere alleged that the pipes, heaters, and stoves in the cabin or house in which the explosion occurred were defective or had ever leaked; and the defendant Gas Inc.'s knowledge that the pipes, stoves, and heaters were defective and had been leaking does not constitute knowledge that the appliances in the particular cabin or house in which the explosion occurred were also defective and leaking, and the plaintiff shows no obligation on the part of Gas Inc. to have inspected the pipes, heater, and stove in that particular house or cabin before furnishing the defendant Callaway gas.
2. A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. In suits for injuries arising from the negligence of the master in failing to comply with the duties imposed by Code § 66-301, in order that the servant may recover it must appear that the master knew or ought to have known of the defects or danger in the machinery supplied, and it must also appear that the servant injured did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof.
The employer is not an insurer of the safety of his employees, and is bound only to the exercise of reasonable care in this connection ( Connell v. Fisher Body Corp., 56 Ga. App. 203, 208, 192 S.E. 484); and, while the employer is bound to exercise ordinary care in furnishing the employee a safe place in which to work, the servant must exercise like care in discovering any defects therein. Chenall v. Palmer Brick Co., 117 Ga. 106 (4) ( 43 S.E. 443); Norris v. American Express Co., 156 Ga. 150, 153 ( 118 S.E. 686).
It is the general rule that the allegations of a petition, when attacked by appropriate demurrer, be construed most strongly against the pleader. So, where general allegations setting up negligence are followed or preceded by specific detailed averments, the general ordinarily must yield to the specific averments. Baggett v. Edwards, 126 Ga. 463 ( 55 S.E. 250); Palmer Brick Co. v. Chenall, 119 Ga. 837, 844 ( 47 S.E. 329); McClure Ten Cent Co. v. Humphries, 29 Ga. App. 524 (1) ( 116 S.E. 54); Doyal v. Russell, 183 Ga. 518 ( 189 S.E. 32); Green v. Perryman, 186 Ga. 239 ( 197 S.E. 880); Wood v. Pynetree Paper Co., 29 Ga. App. 81 ( 114 S.E. 83).
Defective pleadings cannot be aided by the maxim "res ipsa loquitur." Weems v. Albert Pick Co., 33 Ga. App. 579 ( 127 S.E. 819).
Under an application of the foregoing principles of law to the allegations of the petition, the plaintiff failed to state a cause of action against the defendants, Callaway and Whittle, and the trial court did not err in sustaining their general demurrers.
The exact wording of the general allegations of negligence charged against the defendant Callaway follows: "The defendant Callaway was negligent in keeping, using, and maintaining said houses or cabins equipped with pipes, stoves, or heaters having connections that would and did cause said gas to escape, and so using the same after having knowledge of the same, or could and should have had such knowledge by and through his vice-principal Whittle. Was negligent in continuing to purchase and use said gas after knowing that the same would and did escape into said houses or cabins as alleged in the foregoing. Was negligent in failing to repair, adjust, fix, and securely tighten said pipes, stoves, or heaters, and the joints thereof and therein, in a way that said gas would not so escape therefrom into said houses or cabins and by doing so was highly dangerous for any person to go therein without notice thereof. Was negligent as aforesaid, knowing that plaintiff was ignorant of the nature of said gas, the dangerous effect of the same after escaping into said houses or cabins, both dangerous to breathe and more dangerous on coming in contact with blazing fire, as is related in this petition."
The exact wording of the general allegations of negligence charged against the defendant Whittle is: "The defendant Whittle was negligent in failing to adjust, fix, repair and correct said pipes, stoves, or heaters, and the joints or connections therein in a way that said gas would not escape. In keeping and using said pipes, stoves, or heaters after having knowledge that the same was leaking or that gas was escaping therefrom into said houses or cabins. In assuring plaintiff, after attempting to repair, fix, adjust and correct the defects in said pipes, stoves, or heaters, wherefrom said gas escaped, that there would and could not be any danger because of said leaking or escaping gas. In permitting, requiring, allowing, and directing plaintiff to go into said houses or cabins to do his duties and perform his work in cleaning and preparing said houses or cabins for use by guests, patrons, or customers, and in failing to warn plaintiff of the danger of said escaping gas, knowing that plaintiff was ignorant of the nature and danger of said gas, and knowing of his lack of experience therewith. In continuing to purchase and use said gas after knowing the same would and did escape into said houses or cabins as alleged in the foregoing petition, and knowing the same was difficult to sense after so escaping and further knowing that said gas was in the nature of a hidden danger, after escaping into a closed house, to any person going therein. Both these defendants, Callaway and Whittle, were negligent in failing to furnish plaintiff a safe place to do his work, labor, and duties required of him as alleged in this petition."
While it is alleged that the plaintiff had not equal means with the defendants Callaway and Whittle to know that the gas would escape, to know of the dangers of escaping gas, or to know that the explosion would take place, and while it is alleged that the plaintiff had no means of detecting the escaping gas, it is also alleged that, on several occasions prior to the date of the explosion, gas had escaped and accumulated in certain of the cabins or houses and that the plaintiff had notified the defendant Whittle thereof. These allegations are inconsistent and contradictory, and properly construed, the petition must be taken as having alleged that the plaintiff could detect escaping gas. His own petition shows that he had done so on several occasions.
While it is alleged that the defendants were negligent in failing to repair, adjust, fix, and securely tighten the pipes, stoves, or heaters, and negligent in continuing to use the gas after knowing that it would and did escape, it is also alleged that the defendant Whittle, upon being notified of the escape of the gas, had the pipes, heaters, and stoves inspected and repaired. These allegations are inconsistent and contradictory, and properly construed, the petition must be taken as having alleged that the pipes, stoves, and heaters were inspected and repaired. It is not alleged that the inspection or the repair was negligently performed. The plaintiff's own petition shows that the inspection and repair were made.
While it is alleged that there had been leaks and accumulation of gas in certain of the houses or cabins, it is not alleged that there had been any leakage in the particular cabin or house in which the explosion occurred, nor is it alleged that there had been leaks and accumulation of gas in all of the houses or cabins, or that the entire gas system was defective; and, if it be contended that the leaks and accumulation of gas in certain of the houses was sufficient to have put the defendants on notice of leaks in other houses or cabins or leaks throughout the system, it is not alleged that the defendants failed to have all the houses or the entire gas system inspected and repaired at the times the plaintiff had notified them of the leaks and accumulation of gas in certain of the houses or cabins, nor is it alleged that the condition of the gas leakage and accumulation of it in the cabins or houses continued after the several times at which the plaintiff reported the condition to the defendants. It is not alleged in particular how the gas came to be in the house or cabin in which the explosion occurred; and, so far as the petition shows, the gas could have been there as the result of the negligence of a transient guest's having failed to shut off one of the heaters or stoves properly.
It is also alleged in the petition that the duty of inspecting the cabins and reporting defects therein rested upon the plaintiff himself, and while this agreement between the plaintiff and the defendants could not change the defendants' duty and liability to the general public, the plaintiff servant cannot assume the duty of inspection and at the same time charge the master with a failure to inspect. Southern Bell Telephone c. Co. v. Covington, 139 Ga. 566 (3) ( 77 S.E. 382); Stewart v. Savannah Electric Co., 133 Ga. 10 ( 65 S.E. 110, 17 Ann. Cas. 1085).
Properly construed, the petition failed to state a cause of action, and the trial court did not err in sustaining the general demurrers of the defendants Callaway and Whittle.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.