Baxley v. Williams Const. Co., 37283

• Decision Date: 23 October 1958
• Docket Number: No. 37283,No. 1,37283,1
• Citation: 98 Ga.App. 662,106 S.E.2d 799
• Parties: C. T. BAXLEY v. WILLIAMS CONSTRUCTION COMPANY et al
• Court: Georgia Court of Appeals

Page 799

106 S.E.2d 799

98 Ga.App. 662

C. T. BAXLEY v. WILLIAMS CONSTRUCTION COMPANY et al.

No. 37283.

Court of Appeals of Georgia, Division No. 1.

Oct. 23, 1958.

Rehearing Denied Nov. 19, 1958.

Syllabus by the Court.

The court did not err in sustaining each defendant's general demurrer to the petition and in dismissing the action as to each defendant.

Charles T. Baxley sued Williams Construction Company, Moss Construction Company and Fred Carpenter Plumbing Company, all corporations, for damages for personal injuries. The petition as amended is, as to allegations necessary to a decision, as follows:

2. On or about the 22nd day of August, 1957, and for several weeks prior thereto the defendant Williams Construction Company, hereinafter referred to as Williams, was engaged as general contractor in the construction of a series of apartment buildings upon the Fort Benning Military reservation, now territory of the United States of America but which was formerly part of Muscogee County, Georgia. Said apartment buildings under construction are known as the Capehart Housing Project. As general contractor for said project the defendant Williams maintained and controlled the premises of said project and exercised complete control and the right to control all phases of construction being carried out upon said project.

3. On said date Moss Construction Company, hereinafter referred to as the defendant Moss, under the general supervision of the defendant Williams, and acting under the direction and control of the defendant Williams who at all times maintained the right to control and direct said Moss, was engaged in laying certain sewer lines in and between said apartment buildings at said project.

4. On said date Fred Carpenter Plumbing Company, hereinafter referred to as the defendant Carpenter, under the general supervision of defendant Moss and defendant Williams, and as the agent of defendant Williams, subject at all times to the control and direction of defendant Williams, was engaged in installing certain plumbing equipment and pipes in and around said apartment buildings of said project and in particular in installing pipes in building Number 98 of said project.

5. On or about August 22, 1957, there existed an excavation in said housing project which excavation was within ten feet of the building designated as Number 98.

6. Said excavation had been made by the defendant Moss through its agents, servants and employees acting in the course of their employment and within the scope of their authority for the purpose of installing a manhole or vent from a sewer line being put in place by the defendant Moss.

7. This excavation aforesaid had been dug about six or seven days prior to August 22, 1957, and was approximately eight feet deep and six feet in circumference.

8. After said excavation was dug the brick coping about the manhole was put in place but both the concrete ring that supports the manhole cover and the manhole itself were left off. The excavation was left in this unfinished condition for three or four days prior to the incident hereinafter related that occurred about 1:30 a. m. on August 22, 1957. Immediately after such incident and as soon as daylight on August 22, 1957, said concrete ring and cover were installed and the excavation filled in.

9 On August 22, 1957, there were no warning lights, flares, or other signals around the excavation to warn persons in the vicinity of the presence of the same.

10. On August 22, 1957, there was no artificial illumination of any kind such as electric street lights, arc-lamps or other lighting devices during the hours of darkness in or near building Number 98. This condition prevailed at the time of the event hereinafter related.

11. The said excavation, approximately eight feet in depth with an unfinished brick coping rising in the middle, within ten feet of a building under construction with broken concrete blocks, ripped boards, and other building debris lying about the opening, without any barricade to guard it and without any warning lights or flares set out around it constituted a mantrap or concealed peril to persons lawfully on the premises, particularly during the hours of darkness and in particular to the plaintiff herein.

12. On August 21, 1957, the defendant Carpenter through its agents, servants, and employees acting in the course of their employment and within the scope of their authority had 'roughed-in' the plumbing in approximately eight apartment buildings in that particular area, among them building Number 98. For a period of at least two months before this process was carried out at building Number 98, agents, servants and employees of the defendant Carpenter had been carrying out a similar process in other buildings under construction in the same area and as part of the same project. In such other buildings and in building Number 98 the defendant Williams had provided and installed an insulation board immediately next to the interior framing of the building which insulation or weatherboard came within one inch or less of the pipes, the joints of which were being 'sweated' by the agents of the defendant Carpenter. The particular insulation board used was of pulpy, fibrous material, the exact composition of which is unknown to the plaintiff but well known to the defendant Williams. On numerous occasions prior to August 22, 1957, the framing timbers and the aforesaid insulation board had burst into flames under the heat used in the 'sweating' process by the agents of the defendant Carpenter. Both the defendants, Williams and Carpenter knew of the flammable nature of the insulation board, which was the same weatherboard used in building Number 98. Agents of the defendant Carpenter and the defendant Williams had attempted to control the combustible condition of the insulation board by the use of fire extinguishers, a wetting down process and other measures. Notwithstanding that both Williams and Carpenter knew of this condition the defendant Williams continued to supply and install such weatherboard or insulation board and the defendant Carpenter continued to use open flame torches about the copper pipes and joints involved in the 'sweating' process. For the entire working day prior to the time of the fire hereinafter referred to in building Number 98 such agents and servants of Carpenter had used open flame torches in said building to melt the lead used to secure union about the joints of the pipes. They had used such torches close to the framing timbers and close to the insulation board aforesaid and the open flame from said torches had come in contact therewith, and at the close of working hours on August 21, 1957, the insulation board and the timbers aforesaid in building Number 98 were left smoldering and in combustible condition.

13. On August 21, 1957, at or about 7 p. m. a fire started in one of the buildings in the aforesaid project in the close proximity to building Number 98, which fire was extinguished by firemen from fire station No. 1 at Fort Benning. The identity of said building is not known to the plaintiff but is well known to the defendant Williams. At such time acting Fire Chief Fincher contacted the night watchmen for the defendant Williams to guard and check the area, namely William J. Blasingame and John H. McKenzie, and instructed them to make an inspection of all buildings in the area to determine whether there was any danger of fire in any buildings in addition to the one in which they had just extinguished the fire. One of the buildings which such watchmen were instructed to inspect was building Number 98 hereafter referred to. Following the fire at or about 7 p.m. in the building aforesaid which the plaintiff believes and therefore avers to be building Number 100, the general foreman of the defendant Williams, to wit, H. P. Perry, was called to the scene, examined building 100 and discovered that such fire had originated in the insulation or weatherboard used in such building, which was similar in composition and manufacture to that used in building Number 98, but thereafter failed and neglected to inform the defendant Carpenter of such occurrence, and failed and neglected to require the defendant Carpenter, its agents, servants and employees to take further precautions that night against further fires in the other buildings wherein the agents of the defendant Carpenter had used open flame torches and carried out a 'sweating' process on August 21, 1957, of which building Number 98 was one. Further such general foreman of the defendant Williams failed and neglected to inform Carpenter, its agents and servants, of such occurrence, and to have them place a fire guard in the area, and in the vicinity of building Number 98 or to take other precautions against the recurrence of such fire.

13(a). By reason of the earlier fire at or about 7 p. m. August 21, 1957, and the discovery of the cause of such fire by the general foreman of the defendant Williams, to wit, H. P. Perry, the defendant Williams knew of the presence of firemen in the area who were called to extinguish the fire which occurred at 7 p. m., further the defendant Williams knew of the warning of the possibility of a recurrence of fire in building Number 100, or other buildings in this particular area upon which employees of Carpenter had worked that day, of which building Number 98 was one, and the defendant Williams through its general foreman H. P. Perry knew of the existence of sewer manholes and open ditches in the area, and in particular of the one located about ten feet from building Number 98, which said sewer manhole is the one involved in the incident hereinafter described, and further knew of the presence of the danger from fire which the Fort Benning firemen, of whom the plaintiff herein was one, would be called upon to extinguish. Despite all this knowledge the defendant Williams, its agents, servants and employees took no steps...