Harvey v. Zell

• Decision Date: 10 November 1952
• Docket Number: No. 2,Nos. 34306-34310,s. 34306-34310,2
• Citation: 73 S.E.2d 605,87 Ga.App. 280
• Parties: HARVEY v. ZELL. MATHIS v. ZELL. BISHOP v. ZELL. NOLAN v. ZELL (two cases)
• Court: Georgia Court of Appeals

Page 605

73 S.E.2d 605

87 Ga.App. 280

HARVEY v. ZELL.

MATHIS v. ZELL.

BISHOP v. ZELL.

NOLAN v. ZELL (two cases).

Nos. 34306-34310.

Court of Appeals of Georgia, Division No. 2.

Nov. 10, 1952.

Rehearing Denied Nov. 25, 1952.

Syllabus by the Court.

Each of the petitions stated a cause of action for the alleged negligence of the defendant, as a distributor of butane gas, in filling a gas tank beyond the capacity fixed by the rules and regulations of the State Fire Marshal, and in filling the tank at all when it was in an unsafe condition--namely, within less than ten feet of the residence, contrary to the rules and regulations of the Fire Marshal and the trial court erred in sustaining the general demurrers to the petition.

R. M. Harvey brought an action for enumerated damages to his real and personal property against Carley Zell, doing business as Brunswick Gas & Fuel Company. The material allegations of his petition, as amended, are substantially as follows: The defendant sells and delivers to the plaintiff certain liquefied petroleum gas commonly known as butane gas. The gas is delivered into the plaintiff's underground tank by the defendant, his servants, agents, and employees, from a tank located on a truck of the defendant by means of a rubber hose connecting the two tanks and a pump located on the defendant's truck. Sometime prior to December 28, 1951, the plaintiff had installed and maintained at his home a certain '101-Lb.-W.-P.-Underground, 148-gallon, U-69 tank,' for the reception of butane gas. The tank was buried in the ground at or near the plaintiff's residence, except that a portion of the tank, through which the gas was received, and a portion of the tank, from which tubing was run to stoves and heaters inside the plaintiff's house, was above the ground. This tank was equipped with a 'pop valve' to permit the escape of gas from the tank if and when the tank should be filled beyond its normal capacity of 120 gallous on liquefied petroleum gas. The tank was buried about 21 inches beneath the surface of the ground and was located about 5 feet from the entrance of the plaintiff's house. The pop value is located in the dome of the tank and connected with the tank by a pipe extending from the top of the dome. When the tank is filled beyond its normal capacity, the pop value permits the flow of gas into the the dome from which it escapes into the air; and, in the present case, it escaped into the air and under the plaintiff's house and into the walls of the house. All the connections and piping, running from the tank to the heaters and stoves inside the plaintiff's house, were properly installed and free from leaks. On December 28, 1951, the defendant; through his agent and employee, V. W. Gordy, came to the plaintiff's house for the purpose of, and was engaged in, conveying gas from the defendant's tank truck to the plaintiff's tank. The gas had a specific gravity of .554 at 60 degrees Fahrenheit. Section B-11 of the rules of the office of the Fire Marshal of the State of Georgia requires that a tank such as the plaintiff's should not be filled beyond 48 percent of the water capacity of the tank with such gas, which would limit the tank to 120 gallons of liquefied petroleum gas. In the filling process the defendant's agent and servant filled the tank to 93 percent of its water capacity with gas, or until the tank contained 137 gallons of gas. When the capacity of 120 gallons was reached, the pop value on the tank opened and the gas from the tank spread beneath and into the walls of the plaintiff's house. One of the heaters in the house was burning, and the pilot lights on the cook stoves were burning. Soon after the opop valve began discharging gas into the air, the floating gas became ignited and there was a terrific explosion, which was due primarily to the negligence of the defendant's servant, agent, and employee in violating section B-11 of the rules and regulations of the Fire Marshal of the State of Georgia. This section of the rule provides in part: 'B-11 Filling densities. (a) The 'filling density' is defined as the per cent ratio of the weight of the gas in a continer to the weight to water the container will hold at 60 degrees F. The filling densities for storage containers used with systems embodied in Divisions III, IV, shall not exceed the ratios following: Maximum Permitted Filling density: Specific Gravity at 60 degrees: .553-560. * * * Underground containers: All capacities: 52% [of Total Water Capacity] (b) Any container including mobile cargo tanks regardless of size or construction, shipped under I. C. C. jurisdiction shall be filled according to I. C. C. requirement.' The said explosion resulted when the said gas came in contact with the lighted heater, the pilot light of the refrigerator, the pilot light of the two stoves, or from the exhaust from the defendant's truck. From which of these sources, the plaintiff, from lack of knowledge, is unable to say. The plaintiff's tank, into which the gas was being pumped, was at the time located within 5 feet of his house and was therefore in violation of section B-5 paragraph (a) of the State rules and regulations, with which rule the plaintiff was not familiar, as it had never been brought to his attention; but the defendant was familiar with this rule, and, notwithstanding this knowledge on the part of his servants, agents, and employees, they continued to service the improperly located tank; and the plaintiff charges such conduct on the part of the defendant's servants, agents, and employees as gross negligence. The material provisions of this rule are: 'B-5 Location of Containers and Regulating Equipment: (a) Containers and first stage regulating equipment shall be located outside of buildings other than those especially provided for this purpose. Except as herein provided, each individual container shall be located with respect to nearest building or group of buildings or line of adjoining property which may be built on in accordance with the following table.' The table referred to provide that tanks of a water capacity of from less than 125 gallons to 500 gallons, if underground, shall be at a minimum distance of 10 feet. The defendant was negligent, in that, by and through his servant, agent, and employee, V. W. Gordy, he did convey gas into the plaintiff's tank, knowing that it was located less than 10 feet from the plaintiff's house, and such action was in violation of section B-18 of the rules of the Fire Marshal, which reads as follows: 'Filling Unapproved Dispensing or Storage Tanks Prohibited. No person, firm, or corporation shall introduce liquified petroleum gas into a dispensing or storage tank in this State that such dispensing or storage tank or piping is known to be in an unsafe condition.'

The plaintiff charges that the destruction of his house was due to the gross negligence of the defendant, his servants, agents, and employees '(a) In continuing to service * * * the pliantiff's tank with L. P. gas having a gravity of .554 at 60 degrees Fahrenheit while said tank was located in close proximity to the building in violation of Section B-5, paragraph (a) of the State rules and regulations for the handling of said gas. (b) In pumping into said tank more than 48% (52%?) of the water capacity; that is to say, more than 120 gallons of L. P. gas, in violation of Section B-11 of...