Elrod v. Ogles

• Court: Georgia Court of Appeals
• Citation: Elrod v. Ogles, 78 Ga.App. 376, 50 S.E.2d 791 (Ga. App. 1948)
• Decision Date: 04 December 1948
• Docket Number: 32181.
• Parties: ELROD v. OGLES.

50 S.E.2d 791

78 Ga.App. 376

ELROD v. OGLES.

No. 32181.

Court of Appeals of Georgia, Division No. 2.

December 4, 1948

Rehearing Denied Dec. 15, 1948.

Syllabus by the Court.

1. The judgment of the trial court overruling the general demurrers is without error for the reasons assigned in division 1 of this decision.

2. The judgment of the trial court overruling a part of the special demurrers is without error for the reasons set out in division 1 of the decision herein and the remainder of said special demurrers show no cause for reversal for the reasons set out in division 2 hereof.

Plaintiff in error, Mary N. Ogles, hereinafter referred to as plaintiff, brought an action for damages in the Superior Court of Whitfield County against the plaintiff in error Clabe Elrod, hereinafter referred to as defendant.

The petition of the plaintiff alleges facts substantially as follows: that the defendant has injured and damaged her in the sum of $25,000; that the defendant employed her husband James Ralph Ogles, to dig a well on his building lot about 4 miles east of Dalton; that plaintiff's husband was employed as a laborer, the exact terms of his employment being unknown to plaintiff but that her said husband was an employee of the defendant; that the location of the well was about 20 feet from a tank containing butane gas which had been installed on said premises by the defendant; that a pipe conveying butane gas ran within about 4 feet of the well; that the butane gas tank and pipe had been installed by employees of the defendant about two weeks before plaintiff's husband was employed to dig the well that said tank and pipe were second-hand equipment and the pipe was defective in that through rust or decay it had become weakened and was unfit for transmission of butane gas, which is a deadly gas, destructive of human life when inhaled and likely to explode under conditions such as existed in the employment of plaintiff's husband; that a hole developed in said pipe because of its defective condition at a point where it ran within 4 feet of the well; that plaintiff's husband had no knowledge of the location of the pipe because it was buried in the ground; that he had no knowledge of the defective condition of the pipe; that he had no knowledge of the presence of such gas in the well nor did he know how to detect it there; that the defendant, having installed the butane gas tank on his premises, knew, or ought to have known, of its defective condition in the exercise of ordinary care; that the digging of the well had been started by an employee of the defendant, other than plaintiff's husband who had dug the well to a depth of some 7 or 8 feet; that on June 18, 1947, plaintiff's husband after having been employed by and worked for the defendant at the digging of the well for approximately 1 1/2 days, had dug it to a depth of approximately 17 feet; that at this time a hole or leak existed in the pipe containing the butane gas at a point approximately 4 feet from the well, and the gas had leaked into the well where plaintiff's husband was working; that on this date the butane gas that had accumulated in the well without the knowledge of plaintiff's husband, exploded, the cause of the explosion being unknown to plaintiff; that in said explosion plaintiff's husband sustained injuries on account of which he died the next day; that at the time of his death plaintiff's husband was in the exercise of ordinary care for his own safety; that he could not have by the exercise of care avoided his injury and death; that his death occurred as the result of acts of negligence of the defendant as alleged in paragraph 7 of plaintiff's petition as follows: 'A--In failing to exercise ordinary care in the selection of his employees who installed said butane gas and pipe and in selecting employees for this purpose who had had no experience in the installation of such equipment. B--In failing to have said equipment inspected by a competent person to determine its suitability for the uses intended prior to its installation. C--In purchasing and installing used and defective equipment unsuited to the uses for which it was intended and in utilizing such equipment for the storage and transmission of a deadly gas dangerous to human life. D--In failing to warn petitioner's husband of the location of said gas line within 4-feet of said well and of its defective condition. E--in failing to provide your petitioner's husband with a safe place in which to work and in employing him to work in a place which was unsafe either within the defendant's knowledge or within knowledge that he could have acquired by the exercise of ordinary care. F--Through his said employees, Pink Woods and his son-in-law who were not co-employees of petitioner's husband nor engaged with him about the same business in the installation of said butane gas tank and pipe and who were inexperienced in such work and negligently and carelessly installed the defective pipe from which the deadly butane gas could leak as hereinbefore alleged.'

By amendment the petition also alleged that plaintiff's husband came onto the premises of the defendant by his express invitation for a lawful purpose, i.e. the digging of the defendant's well. The amendment goes on to allege the duty of the defendant under these circumstances to warn the plaintiff's husband of secret or concealed dangers of which he knew or ought to have known in the exercise of ordinary care, the amendment alleging that the defendant did know or ought to have known in the exercise of ordinary care the danger here because he installed the tank and pipe line in the negligent and defective manner previously alleged.

The petition of the plaintiff also alleges that her husband was 28 years of age with a reasonable expectancy of 35.69 years and that he was capable of earning during this expectancy the sum of $3000 per year.

The defendant interposed general and special demurrers to the petition of the plaintiff. The grounds of the general demurrer and that the petition sets forth no cause of action against the defendant; because the petition does not allege that the plaintiff's husband did not have equal means with the defendant of knowing of the gas being in the well; and that the petition fails to allege that plaintiff's husband could not have discovered the existence of the gas prior to the explosion by the exercise of ordinary care.

The allegations of paragraph 6 of plaintiff's petition are specially demurred to upon the ground that they are vague and indefinite. It is contended in this ground that the petition fails to allege how long plaintiff's husband had been working before reaching the depth of 17 feet and at the time of the explosion. However the petition does allege that he had been working for one and one-half days and had dug the well from a depth of 7 or 8 feet to a depth of approximately 17 feet. This ground of the special demurrer also contends that no facts are alleged to show why plaintiff's husband did not have equal means, if not better means, of knowing of the presence of the gas in said well prior to the explosion than did the defendant.

Subsection A of paragraph 7 of the petition is specially demurred to because it charges the defendant with negligence in his selection of employees with no experience to install the butane gas tank and pipe, contending that the defendant owed plaintiff's husband no duty to select competent employees to perform this work, it being wholly disconnected from the work being performed by plaintiff's husband at the time of his death.

Subsection B of paragraph 7 is specially demurred to, it being contended that the defendant owed no duty to plaintiff's husband to have the butane gas equipment inspected to determine its suitability for the use intended, said equipment being wholly disconnected from the purposes of the employment of plaintiff's husband.

Subsection C of paragraph 7 is specially demurred to upon the same grounds as were both subsection A and B thereof.

Subsection D of paragraph 7 is specially demurred to because it is contended the defendant owed the plaintiff's husband no duty to warn him of the location of the gas line and its defective condition; that no facts are alleged to show any connection between the location and condition of the gas line with the purpose of the employment of plaintiff's husband; and that no facts are alleged to show that plaintiff's husband did not have equal means with the defendant of knowing of the alleged defective condition of the line.

Subsection E of paragraph 7 of plaintiff's petition is specially demurred to because it is contended that under the allegations of the petition there is no duty on the part of the defendant to furnish plaintiff's husband with a safe place to work; because no facts are alleged to show that plaintiff's husband did not have equal means with the defendant of knowing of the alleged unsafe place in which he was to work; and because no facts are alleged to show whether plaintiff's deceased husband could not have acquired knowledge of the presence of the gas in the well prior to the explosion by the exercise of ordinary care.

The allegation of the plaintiff that 'her husband was in the exercise of ordinary care for his own safety and could not have by the exercise of ordinary care avoided his injury and death, and that his death occurred as the result of acts of negligence of the defendant' as hereinbefore detailed, is specially demurred to as being mere conclusions of the pleader without stating any facts upon which said conclusions are based; that it is not alleged what the plaintiff's husband did in the exercise of ordinary care for his own safety to discover the presence of gas in the well; that no facts...