Opinion
39542.
DECIDED SEPTEMBER 7, 1962. REHEARING DENIED SEPTEMBER 24, 1962.
Action for damages. Fulton Superior Court. Before Judge Moore.
Heyman, Abram, Young, Hicks Maloof, Robert G. Young, for plaintiff in error.
Smith, Swift, Currie, McGhee Hancock, Charles Weltner, Hansell, Post, Gardner, Brandon Dorsey, Hugh E. Wright, contra.
Under the allegations of the plaintiff's petition, the defendant hauling company was under no duty before or during the delivery of gasoline to the defendant oil company to inspect the premises of the oil company's service station to determine if the gasoline storage facilities located thereon were so constructed, installed, maintained and located as to receive the gasoline without danger; and in the absence of actual knowledge that a dangerous condition existed, the defendant hauling company in such instance was not liable for injuries to the plaintiff resulting from an explosion allegedly caused by the dangerous condition of the oil company's storage facilities.
DECIDED SEPTEMBER 7, 1962 — REHEARING DENIED SEPTEMBER 24, 1962.
This was a suit to recover damages for injuries sustained by the plaintiff, an 8-year-old boy, when a quantity of gasoline vapor emanating from the vent pipes of an underground storage tank at a filling station, while said tank was being refilled, settled near the ground of adjoining residential premises, where the plaintiff was playing, and exploded. The defendants in the suit as amended were Lyon Oil Inc., which operated and maintained the filling station and as lessee constructed the improvements and facilities on the premises, and Blalock Hauling Company, whose agent was delivering gasoline to the station at the time of the explosion.
The allegations of the petition disclosed that immediately behind the premises of the station was a multiple unit apartment dwelling, the front yard of which was immediately adjacent to the service station, said yard being at a higher level than the service station premises, with a retaining wall between the two properties; that behind the retaining wall and adjacent to the premises occupied by the apartment dwelling were two vent pipes which extended 7 1/2 feet above the level of the ground in front of the apartment premises, said vent pipes extending from the underground gasoline storage tanks located on the service station premises; that the portion of the retaining wall which said vent pipes were directly behind constituted the rear wall of the service station office and the tops and openings of the vent pipes were several feet below the level of the uppermost point of the eaves of the roof of the service station building; that the vent pipes had openings at the end which directed the vapors which were discharged in a downward direction rather than in an upward or a horizontal direction; that the retaining wall was 4 feet high and 18 feet from the front wall of the apartment building, and the space between the two walls, extending for a length of 100 feet, constituted the front of the apartment property; and that prior to the time in question the plaintiff and other children customarily played in the yard thus situated.
The petition further alleged that on October 13, 1960, the date of the explosion, while the plaintiff and two friends were playing in the apartment yard, the defendant Blalock Hauling Company by its agent was discharging gasoline from a large truck into the underground storage tanks located on the service station premises; that due to the force of the liquid into the storage tanks a large quantity of flammable vapors was being forced out of the tanks through the vent pipes; that the vapors were heavier than air and accumulated in a substantial volume in the area where the children were playing due to the short distance of the vent pipes above the ground and their location between the two walls where it was difficult for the vapors to disperse; that notwithstanding the accumulation of the flammable vapors in the apartment yard, the plaintiff and his friends continued to play as they had not been warned of the danger by the defendants; and that one of the plaintiff's friends found a book of matches and lit one, causing a flash fire and explosion, completely covering the apartment yard in flames, and causing serious injury to the plaintiff and his friends.
The petition charged that the defendant Lyon Oil Incorporated was negligent in the maintenance of the vent pipes in a confined area, of insufficient height above the ground, and in a location where flammable vapors would accumulate instead of disperse, being a location devoted to dwelling purposes where the defendant Lyon Oil Inc. could not control or prevent possible sources of ignition.
The defendant Blalock Hauling Company was charged with negligence in discharging a large volume of gasoline, being a dangerous substance, onto the premises to which an apartment dwelling and yard was immediately adjacent, without determining whether or not the flammable vapors from said gasoline were being dispersed in the air so that the same would not constitute a hazard and danger; in discharging flammable vapors upon residential premises in a space where the same could not be readily dispersed in the air; in failing to warn all persons, including the plaintiff, in the vicinity of said vent pipes of the danger of explosion or fire from the flammable vapors being discharged therefrom; in discharging flammable vapors in concentrated quantities in an area where the defendant was unable to control or prevent possible sources of ignition; in discharging large quantities of gasoline under pressure with such force and speed as to cause a concentration of flammable vapors to accumulate in an area devoted to dwelling purposes and not disperse; in failing to inspect the facilities of the aforesaid described service station to determine whether or not they were safe for the discharge of gasoline, being a dangerous commodity, in large quantities; and in failing to determine during said unloading operation whether or not the flammable vapors which were being forced from the storage tanks of said service station were being readily dispersed in the air and were not concentrating in dangerous quantities so as to constitute a hazard to persons within the vicinity of said vapors.
The trial court sustained the general demurrer of the defendant Blalock Hauling Company and the exception is to that judgment.
While it is alleged in the petition that the defendant was negligent in discharging a large quantity of gasoline into the storage facilities of the filling station and thereby creating an alleged dangerous condition by the accumulation of gasoline vapors on the adjoining premises where the plaintiff was injured when said vapors were ignited and exploded, the instant cause of action must be construed as one predicated upon the defendant's failure to act to determine that said facilities could safely receive the gasoline. This is true for the reason that the facts alleged in the petition do not disclose any improper or negligent conduct in the mode and method of the delivery of the gasoline by the defendant but show that the dangerous condition which resulted in the plaintiff's injuries was caused by alleged defects in the construction and situation of the vent pipes of the gasoline storage tanks and by the general proximity and relationship of the filling station to the adjoining residential area.
It is alleged in the petition that the condition and location of said vent pipes could have readily been observed by the defendant's agent, but it is not alleged that the defendant's agent actually knew of the location of the vent pipes and of the construction of said pipes, nor that said agent had knowledge that their location and construction created a hazardous condition. Furthermore, under the alleged facts which disclosed that the tops of the vent pipes were several feet below the eaves of the roof of the filling station building, and construing the petition most strongly against the pleader, the allegation that the condition and location of the vent pipes could have been readily observed by the defendant's agent, can only be construed as an allegation to the effect that he could have observed said pipes by making an inspection of the premises.
Accordingly, as suggested in the brief of counsel for the defendant, the controlling issue presented by this petition is whether one delivering gasoline to a filling station has a duty, before and during such delivery, affirmatively to inspect the gasoline storage facilities of the service station and the surrounding premises in order to determine whether such facilities were constructed, operated and maintained in a safe condition and located in a safe area to receive the gasoline.
While we have been unable to find any Georgia cases directly in point on this question, a search of the general authorities and cases from other jurisdictions (see Ann. 151 ALR 1261, 1269) discloses that there is no such general duty of inspection of the storage facilities and surrounding premises upon one delivering gasoline to a filling station or other consumer; and accordingly, no liability for damages caused by defects in the same in the absence of actual knowledge that a dangerous condition exists in the receiving facilities. See Allegretti v. Murphy-Miles Oil Co., 363 Ill. 137 ( 1 N.E.2d 389); Doyle v. Atlantic Refining Co., 357 Pa. 92 ( 53 A.2d 68); Peterson v. Betts, 24 Wn.2d 376 ( 165 P.2d 95); Samuel v. White Fuel Corp., 332 Mass. 264 ( 124 N.E.2d 270); Fritsch v. Atlantic Refin. Co., 307 Pa. 71 ( 160 A 699).
That the law of this State is in accord with the general rule enunciated and followed in the above cases, is indicated by the decision of this court in Milligan v. Georgia Power Co., 68 Ga. App. 269 (1) ( 22 S.E.2d 662), wherein the court stated as follows: "It is the general rule, deduced from the authorities, that where wiring, or other electrical or gas appliances on private property, is owned or controlled by the owner or occupant of the premises, a company which merely furnishes electricity or gas for such respective appliances is not responsible for the insulation of the electrical appliances or the condition of the wiring or electrical or gas appliances, and is not liable to the owner or occupant or to third persons on the premises for injuries caused by such defective condition. The rule is subject to the exception that whenever such electrical current or gas is supplied with actual knowledge on the part of the one supplying it of the defective and dangerous condition of the customer's appliances, he is liable for injuries caused by the electricity or the gas thus supplied for use on such defective and dangerous appliances, but no duty of inspection rests on the one supplying the electricity or the gas from the mere fact of rendering such service to the customer owning or controlling the equipment . . ."
Likewise in Metz v. Georgia Public Utilities Corp., 52 Ga. App. 771 (1) ( 184 S.E. 629), it was held as follows: "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 which 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 also Cornett v. Georgia Public Utilities Co., 63 Ga. App. 305 ( 11 S.E.2d 68).
While the facts of the cases quoted from are materially different from those of the case under consideration, it is our opinion that the principle of law stated therein is applicable here. Accordingly, we hold that under the allegations of the plaintiff's petition the defendant Blalock Hauling Company was under no duty before or during the delivery of the gasoline to determine if the service station facilities were so constructed, installed, maintained and located as to receive the gasoline without danger and that in the absence of actual knowledge (or allegations showing the equivalent of the same) that a dangerous condition existed, the defendant in such instance was not liable for damages resulting from the alleged dangerous condition of the facilities.
The trial court did not err, therefore, in sustaining the general demurrer of the defendant Blalock Hauling Company.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.