Carter v. Callaway, 34411

• Citation: 87 Ga.App. 754,75 S.E.2d 187
• Decision Date: 28 February 1953
• Docket Number: No. 2,No. 34411,34411,2
• Parties: CARTER v. CALLAWAY et al
• Court: United States Court of Appeals (Georgia)

Page 187

75 S.E.2d 187

87 Ga.App. 754

CARTER v. CALLAWAY et al.

No. 34411.

Court of Appeals of Georgia, Division No. 2.

Feb. 28, 1953.

Rehearing Denfied March 12, 1953.

Syllabus by the Court.

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.

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, consistiang 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 into 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 damages. 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 these advices 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 damages. 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 expect 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 coudl 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 attemapting to repair, fix, adjust, and correct the defects in said pipes, stoves, or heaters from which the gas escaped that there would and...