Douglas v. Smith, 76-2537
| Decision Date | 28 August 1978 |
| Docket Number | No. 76-2537,76-2537 |
| Citation | 578 F.2d 1169 |
| Parties | Harold Dwight DOUGLAS et al., Plaintiffs-Appellees, v. Hubert W. SMITH, Defendant, Amoco Oil Company and Tri-County Gas Company of Pearson, Inc., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wilson G. Pedrick, Waycross, Ga., for Amoco.
Seymour S. Owens, Ken R. Hilyer, Tifton, Ga., for Tri-County.
Lee R. Williams, Douglas, Ga., Dubignion Douglas, Dublin, Ga., for plaintiffs-appellees.
Appeals from the United States District Court for the Southern District of Georgia.
Before GOLDBERG, GODBOLD and SIMPSON, Circuit Judges.
These are Georgia diversity cases consolidated for trial.
Plaintiff sued for himself and his minor child for injuries suffered by the two of them in an LP gas explosion in Georgia. The defendants are Smith, owner of the premises, and Amoco and Tri-County, suppliers of LP gas. A jury returned general verdicts against all defendants, for $25,000 in the father's case, $90,000 in the child's case. Motions of Amoco and Tri-County for directed verdicts and judgments n. o. v. were overruled and they appeal. Smith has not appealed.
We conclude that Amoco's motion for directed verdict should have been granted on all claims, so it is entitled to a reversal with direction that judgment be entered in its favor. Tri-County's motion for directed verdict should have been granted on several claims against it but was properly denied as to other claims. However, because the verdict was general we cannot determine the basis for it as against Tri-County, so we must reverse and remand for further proceedings on the claims against Tri-County that survived its motion for directed verdict.
Smith owned a duplex apartment building located outside the small town of Douglas, Georgia. The apartments were heated by gas space heaters, each of which, until shortly before the explosion, was supplied with LP gas from a 500-gallon underground tank located some distance from the building. Amoco and Tri-County delivered to the tank LP gas purchased by Smith. A line or lines led from the tank to a meter at each apartment. There was evidence from which the jury could find that Smith rented to his tenants under an arrangement by which each tenant paid Smith for the amount of gas actually consumed in the tenant's apartment, as shown by the meter for the apartment.
In late December 1971 or early January 1972 Smith and his son disconnected a space heater in one of the apartments, moved it across the room, and by means of a separate line run through a window connected it to an LP gas cylinder located just outside the building. There was evidence from which the jury could infer that the tenant of this apartment had not paid Smith for gas which she had consumed from Smith's tank, and that Smith moved the heater to deny her access to his gas and to force her to make her own arrangements for gas to be supplied from the gas cylinder.
There was adequate evidence to support a conclusion that when the Smiths moved the heater they failed to plug the line that had been supplying it. After moving the heater the Smiths turned off the gas supply at the tank and gas ceased to flow from the tank to the duplex.
After the heater was moved the tenant in that apartment vacated, and around January 31 Smith rented the apartment to the plaintiff with the usual arrangement that the tenant would pay Smith for gas consumed. Douglas began to move into the apartment on February 6. He asked Smith to have the gas turned on, and Smith's son activated the 500-gallon tank supply system around midday. Douglas and other adults came to the apartment during the afternoon to bring in furniture and departed. In the early evening Douglas, his 8-year-old son, and others arrived at the apartment, and the child went ahead of the others and turned on the television set. An explosion and fire occurred. Firefighting personnel disengaged the storage tank. Later the unplugged line was discovered. When the tank was turned on again gas flowed through the open line and was emitted into the room.
Before late 1971 Amoco supplied Smith with gas. Amoco made its last delivery, 200 gallons, on November 14. Tri-County delivered 400 gallons on November 30 and 300 gallons December 27. The 500-gallon tank had an effective capacity of 450 gallons.
Plaintiff charged negligence by the two gas suppliers as follows: (1) They failed to inspect Smith's premises before delivering gas. (2) They delivered gas to Smith when they knew or should have known he was maintaining unvented appliances. (3) They delivered gas to Smith when they knew or should have known he was engaged in the physical installation of an LP gas system without a license, or was servicing, repairing, adjusting, connecting or disconnecting appliances, piping, tubing or fittings without a license. (4) They delivered gas to Smith when they knew or should have known he was an unlicensed dealer. (5) They delivered gas to Smith when they knew or should have known that he was an uninsured dealer.
Amoco should have been granted a directed verdict on all claims because there was insufficient evidence that the gas it delivered was the gas that exploded. For other reasons discussed below both Amoco and Tri-County were entitled to directed verdicts on claims numbered (1), (2) and (3) above. This leaves for consideration on remand, against only Tri-County, claims numbered (4) and (5).
Claim (1), based upon an alleged duty to inspect the premises before making a delivery, is a common law claim. It fails because under Georgia law the supplier has no duty to inspect the premises before making a delivery unless it has control of the appliances or actual knowledge of the defective condition of the premises. Milligan v. Georgia Power Co., 68 Ga.App. 269, 22 S.E.2d 662 (1942); Davis v. General Gas Corp., 106 Ga.App. 317, 321, 126 S.E.2d 820, 823 (1962). There was not substantial evidence that either appellant had such control or knowledge.
The remaining claims were rooted in alleged per se violations of the state fire marshal's regulations relating to LP gas. Georgia controls liquefied petroleum gas through the Liquefied Petroleum Safety Act of Georgia, enacted in 1948. Ga.Stat.Ann. § 73-301 et seq. Section 73-304 authorizes and directs the state fire marshal to promulgate and enforce rules and regulations:
73-304 Rules, regulations, etc.; duty to promulgate; contents
The State Fire Marshal shall make, promulgate, adopt and enforce rules and regulations setting forth minimum general standards covering the design, construction, location, installation and operation of equipment for storing, handling, transporting by tank truck, tank trailer, and utilizing liquefied petroleum gases and (specifying the odorization) of said gases and the degree thereof. Said rules and regulations shall be such as are reasonably necessary for the protection of the health, welfare, and safety of the public and persons using such materials, and shall be based upon reasonable substantial conformity with the generally accepted standards of safety concerning the same subject-matter. (Acts 1949, pp. 1128, 1129.)
The trial court instructed the jury from the Rules and Regulations for Liquefied Petroleum Gases of the Safety Fire Commissioner of Georgia, dated April 1, 1968. 1
The trial court read to the jury various parts of these regulations and instructed that they were in force at the time of the accident. With respect to violations of the regulations the court charged:
I charge you that for one to violate a valid regulation of the State of Georgia pertaining to LP gas constitutes negligence as a matter of law, that is negligence in and of itself; so that in determining whether any of these Defendants committed an act of negligence per se, you would merely determine whether or not such Defendant violated any one of these applicable regulations of the State of Georgia dealing with the handling of LP gas.
There was no objection to this instruction and on appeal it is not claimed to be erroneous.
The purpose of the regulations is described in § 120-3-16-.01(2) 2 thereof:
to prevent the loss of life, injury of persons, and loss or damage to property in storage, handling, use and transportation of liquefied petroleum gases.
Smith had no license of any kind relating to LP gas. The licensing requirements of the regulations appear in § .02:
120-3-16-.02 Administration.
(1) General. It is prohibited for any person to manufacture, distribute, sell, store for sale or transportation, transport by tank truck or tank trailer, Liquefied Petroleum gas or to engage in the Physical Installation of LP Gas Systems or to service, repair, adjust, connect or disconnect appliances, piping, tubing or fittings thereto, in this State, except by the authority of a written License or Permit issued by the State Fire Marshal therefor in conformance with these Rules and Regulations.
(2) License Fees and Information Concerning Licensing.
(a) An annual fee for each calendar year or fraction thereof shall be paid to the State Fire Marshal for a license to engage in one or more of the activities prescribed above, as follows:
1. For each location where Liquefied
Petroleum Gas is stored for sale or transportation with
an aggregate storage capacity at any time of:
(i) 1000 water gallons capacity or
less $ 25.00
(ii) More than 1000 water gallons
capacity but not more than 5000 water gallons capacity $ 50.00
(iii) More than 5000 water gallons
capacity $100.00
2. For activities prescribed in paragraph (1)
above where storage of Liquefied Petroleum Gas is not
required or maintained, as follows:
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