Community Gas Co. v. Williams
| Decision Date | 26 September 1952 |
| Docket Number | Nos. 34256,34257,No. 2,s. 34256,2 |
| Citation | 87 Ga.App. 68,73 S.E.2d 119 |
| Parties | COMMUNITY GAS CO. v. WILLIAMS et al. HAMILTON GAS CO., Inc. v. WILLIAMS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The amendment to the petition here contains additional matter descriptive of the same wrong pleaded in the original petition; it does not plead any other or different wrong, but in connection with the original petition sets forth a ground of facts the result of which is to conclusively evince the existence of a legal wrong; it is germane to the petition in that it further elucidates the legal wrong intended to be declared upon. Therefore, the original petition was enough to amend by and the amendment did not set out a new cause of action.
2. Where as here the employer of an independent contractor procures the latter to perform an act which, according to previous knowledge and experience, is in its nature dangerous to others, however carefully performed, the negligence of the independent contractor proximately resulting in the injuries and occurring in the course of the prosecution of the execution of the act which he was employed to perform is imputable to the contractor. The duty on the part of such contractor to exercise ordinary care to prevent injury to others is nondelegable where, as here, the allegations of the petition are sufficient to show that according to previous knowledge and experience the work to be done is in its nature dangerous to others however carefully performed.
3. Error, to be reversible, must be harmful. It was not reversible error to overrule a special demurrer attacking the allegation of a jurisdictional fact as a conclusion of the pleader, the petition affirmatively showing that the court had jurisdiction of the defendant as a joint tort feasor.
4. (a) Where an agreement between parties in a tort action is set out merely to show the relationship of the parties and in explanation of subsequent conduct, such agreement not being the basis of the action, need not be alleged with absolute particularity.
(b) Facts peculiarly within the knowledge of the opposite party need not be alleged with the same definiteness as those peculiarly within the knowledge of the pleader. However, a corporation acts only by and through its officers and agents, and is ordinarily entitled to know the name of the agent allegedly acting in its behalf. The petition here failing to allege the names of such agents or that they are unknown to the plaintiff, is subject to special demurrer on this ground.
(c) The act of the employer in identifying the work or pointing out to the contractor where it is to be performed is not an interference with or a direction or control of the manner of its execution. Accordingly, the paragraphs of the petition alleging that the employer pointed out the place for the work to be done were insufficient to sharge him with directing or taking control of the operation.
(d) Reasonable definiteness and certainty is all that may be required in pleadings, and factitious demands by special demurrer should not be encouraged.
5. (a) While allegations must specify the quantity, quality and value of items at issue, the items alleged in the petition here are not subject to the special demurrers interposed thereto, as they are alleged in substantial compliance with this rule.
(d) The special demurrers calling for particularization of the expense of $900 allegedly incurred for doctor and hospital bills in connection with the injuries of the plaintiff's wife should have been sustained, as the defendant is entitled to this information when called for on special demurrer.
6. That part of the plaintiff's petition which seeks recovery for physical injuries with attendant pain and suffering and nervous impairment of the wife of the plaintiff is subject to special demurrer, as the plaintiff husband has no cause of action for these items of injury to his wife. If the petition, which is somewhat vague on this subject, seeks recovery for consequental mental anxiety on the part of the husband because of these injuries to his wife, the petition is likewise subject to demurrer as this is also an item for which the husband is not entitled to recover.
7. The demurrers to an amended paragraph of the petition were properly overruled since such paragraph contained well-pleaded facts and not mere conclusions as contended.
J. Thornton Williams sued the Hamilton Gas Co., Inc. and Community Gas Co. jointly in the City Court of Gwinnett County for damages to personal property and injuries to his wife depriving him of her services, the damage and injury resulting from fire caused by the explosion of a propane gas tank. The petition alleged that Hamilton Gas Co. 'has an office, agent and place of doing business in said county * * * with an agent upon whom service may be had' and that Community Gas Co. 'has an agent in the County of Gwinnett and State of Georgia.' It appears from the allegations of the petition that the plaintiff, who was a minister, resided in a parsonage belonging to the trustees of a named church; that said trustees contracted with Truman Hamilton, agent of Hamilton Gas Co., to install propane gas in the parsonage; that this gas was delivered by Community Gas Co. and that one of the employees of the latter company allowed it to fall in process of unloading, resulting in the escape and explosion of the gas, destruction of the parsonage and the plaintiff's personal property by fire, and described injuries to the plaintiff's wife. Paragraphs 6, 7, and 16 of the original petition were as follows:
'The trustees of said church had arranged with the defendants through Truman H. Hamilton, the president and agent of Hamilton Gas Co., Inc. to install at said parsonage a metal tank or drum of what is known as propane gas to be used for domestic purposes, such as heating, cooking, and heating water in and about the premises. 7. Hamilton Gas Co., Inc. buys its gas from Community Gas Co. and this is delivered to customers by Community Gas Co. when it is purchased in bulk. Orders are first placed with Hamilton Gas Co., Inc. and it then makes out a document containing the customer's name and address and a ticket is furnished Community Gas Co., which it turns over in a memorandum to one of its drivers, and has the gas, when purchased in bulk, delivered in behalf of itself and Hamilton Gas Co., Inc. 16. Petitioner's loss and damage were caused by the negligence of the defendants. The defendants were negligent: (a) In undertaking to remove said metal tank of explosive gas from a motor truck without sufficient help and adequate protection so as to avoid breaking the valve thereon, and allowing said highly explosive gas to escape under pressure and become ignited in the proximity to petitioner's home and thereby causing the damage hereinbefore set out. (b) In not securely fastening said tank by means of chains, wire cables or some other means of lifting and controlling the same so that with a boom it could have been removed from said motor truck, and deposited on the ground without being permitted to fall from said motor truck and strike the ground with such violence as to break the valve on said tank and permit the escaping of gas therefrom. (c) In not placing around said drum cables of sufficient strength to lift the weight thereof, and in not attaching said cables to some boom lever or other instrument so as to lift the weight of said drum, and instead of securely fastening either cables or chains around said drum in undertaking to fasten a metal chain to a leg attached to said drum and causing the same to break and be torn loose from said drum and permitting the same to fall. (d) In failing to attach securely even the means at their command, namely the chains to said tank in a secure manner so as to prevent it from slipping and falling, but instead so fastened the same as to permit them to slip, allowing said tank to fall.
The above paragraphs were stricken and the following added by amendment: ...
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