Chatham v. Texaco, Inc., 40572
| Decision Date | 20 March 1964 |
| Docket Number | No. 1,No. 40572,40572,1 |
| Citation | 109 Ga.App. 419,136 S.E.2d 489 |
| Parties | Lucy P. CHATHAM v. TEXACO, INC |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The petition, as against a general demurrer, did not sufficiently allege that the tortious acts complained of therein were committed by agents of the defendant, and the trial court did not err in sustaining the general demurrer and in dismissing the petition.
James A. Bagwell, Atlanta, for plaintiff in error.
Greene, Neely, Buckley & DeRieux, James H. Moore, Atlanta, for defendant in error.
The exception here is to the order of the trial court sustaining the defendant's general demurrer to the plaintiff's petition. Plaintiff alleged that she was the owner of certain premises located in Chamblee, Georgia, which had thereon improvements consisting of a service station erected and maintained for the dispensing of gasoline, oil and services incidental to the operation of a gasoline service station; that the defendant occupied the premises from October, 1955, until February 26, 1961, through a written lease, a copy of which was attached as an exhibit to the petition; that the defendant had subleased the premises to one Larry B. Berrong, who was operating the service station; that on February 26, 1961, 'defendant through its sublessee' was in the process of draining gasoline from several automobiles into an open container in an enclosed area on the premises; that the fumes from the gasoline permeated the enclosed area and were carried by drafts of air to a gas furnace which was suspended overhead and in operation and which ignited the fumes causing an explosion and resulting fire which depreciated the market value of the plaintiff's building in the amount of $10,000. In addition to the foregoing allegations the plaintiff alleged that 'the draining operation herein * * * described was under the sole and exclusive control, management and direction of defendant, [its] servants, agents, employees and sublessees,' and that 'defendant, through its servants, agents, employees, and sublessees, [was] negligent in the manner of draining the gasoline' with the result that it exploded and enveloped the premises in flames; and that the negligent acts of the defendant's servants, agents, employees, and sublessees were 'attributable' to the defendant.
Petitioner alleged that there was in existence at the time in question regulations promulgated by the Georgia Safety Fire Commissioner pursuant to the provisions of Ga.Laws 1949, pp. 1057, 1063, which regulations have the force and effect of law; that these regulations were applicable to the defendant in its operation of draining the gasoline in question; that the defendant failed to abide by them and such failure amounted to negligence per se, and the negligence of the defendant was the proximate cause of the damage to plaintiff's property. The court sustained the general demurrer on the theory that the only way the defendant would be liable in this case would be if the plaintiff could show that it was negligent in entering into the sublease or that the sublessee was an agent of the defendant, and that neither was alleged.
While one way in which agency may be pleaded is to allege by a direct simple statement that the defendant, by its agent, committed the alleged wrongful act, and as against a general or special demurrer such allegation would be sufficient, Gilmer v. Allen, 9 Ga. 208(4); Lewis v. Amorous, 3 Ga.App. 50, 53(1), 59 S.E. 338; Conney v. Atlantic Greyhound Corp., 81 Ga.App. 324, 327(1), 58 S.E.2d 559, and while general allegations of negligence are sufficient as against a mere general demurrer (Pullman Palace Car Co. v. Martin, 92 Ga. 161, 162, 18 S.E. 364), yet, these rules must be considered in connection with the basic rules as to the construction of pleadings on demurrer in order to determine what is alleged.
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...doctrine of respondeat superior, and in this respect the pleadings here are clearly distinguishable from those in Chatham v. Texaco, Inc., 109 Ga.App. 419, 136 S.E.2d 489, cited by counsel. In that case the pleadings referred to a sublessee, a term which does not show as a matter of law the......
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