Howell Gas of Athens, Inc. v. Coile
| Decision Date | 27 September 1965 |
| Docket Number | Nos. 41457,41458,No. 2,s. 41457,2 |
| Parties | HOWELL GAS OF ATHENS, INC., et al. v. Curtis COILE. HOWELL GAS OF ATHENS, INC., et al. v. George B. BROOKS |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) The petition of a third party against the owner of realty, which was in the exclusive possession of a lessee, seeking to recover damages on account of an explosion resulting from gas flowing through two space heaters which the lessee's employee had lighted and left turned low, one of the heaters being manually controlled and the other being automatic with a defective cutoff, the defect having been discovered by an employee of the gas company when the lessee called it to fill the gas tank, sets out no cause of action against the owner, it not appearing that he had any knowledge or notice of the alleged defect.
(b) Installation of gas applicances by one who is not an employee of the gas company and without the company's permission, in violation of regulations issued under the Liquefied Petroleum Safety Act, is not negligence unless done in an improper manner.
2. Where no cause of action is set out against the only resident defendants the court has no jurisdiction and the petition should be dismissed on general demurrer of the nonresident defendant.
3. No determination is made as to rulings on special demurrers.
Allegations of these petitions are that J. V. and Burley Lowe owned a building in Crawford, Oglethorpe County, which was under lease to Clyde Pickler for the operation of a chicken hatchery. The building was heated by an L-P gas system, including the gas tank on the outside, the line from the tank to the heaters inside and three space heaters. One of the heaters was suspended from the ceiling, while the others were on the floor. The suspended heater and one of those on the floor were equipped with pilot lights and automatic cutoffs, so that in the event they should become extinguished the flow of gas through them would be stopped. The other floor heater was a manually controlled one, having no pilot light or automatic cutoff. It had been installed and connected to the gas line some time prior to November 14, 1962 by J. V. Lowe, with the knowledge and approval of his brother, Burley Lowe.
After Pickler leased and took possession of the premises an agent of Howell Gas Company of Athens, Inc., upon the request of Pickler, went to the building on November 14 and made an inspection of the heating system. His inspection revealed that the blower fan on the suspended heater did not operate, the cutoff on the automatically controlled floor heater did not function, while the other floor heater functioned satisfactorily as a manually controlled one, but had no pilot or automatic cutoff device. He lighted the pilot on the suspended heater and closed the valve controlling flow of gas to the automatic floor heater having the defective cutoff, and filled the gas tank. On November 23, an employee of Pickler lighted the two floor heaters, but not the suspended one. In order to light the automatic heater it was necessary that he open the valve which Howell's agent had closed to prevent the flow of gas to it. The two heaters were burning, but turned low, when Pickler's employee left the building about 4 a. m. For some reason the heaters became extinguished after he left, and gas continued to flow through both of them, bringing such a concentration of gas into the room that a violent explosion resulted either when it had reached the height of the pilot light on the suspended heater, or from an electrical spark from machinery in the room. That building was totally destroyed, as was the building of George B. Brooks located adjacent thereto, in which his tenant, Curtis Coile, operated a retail grocery and market. Coile's stock and fixtures were destroyed.
The manually controlled heater had been installed by J. V. Lowe in violation of the Liquefied Petroleum Safety Act (Code Ann. Ch. 73-3) and regulations of the State Fire Marshal issued pursuant thereto in that he was not in the employ of any gas distributing company and had no permission from any such company to make connection to the piping system.
Plaintiffs seek recovery against the Lowe brothers as owners of the building, alleging them to have been negligent in (a) 'maintaining within the Lowe Building an L-P gas system for the purpose of heating said building, which system was defective and dangerous, had not been installed in accordance with the provisions of the L-P gas law and which in its condition was inherently dangerous to use and operate,' (b) installing one of the heaters when the defendants were not in the employ of a gas distributing system and did not have permission therefrom to connect it to the building piping system, in violation of the Liquefied Petroleum Safety Act, (c) failing to anticipate that the use and operation of the defective gas system might result in a violent explosion and taking the necessary precautions to correct the defects in it, and (d) failing to warn plaintiffs of the defective and dangerous condition of the gas system in the Lowe Building and the likelihood of injury and damage that might result therefrom.
Recovery is sought against Howell Gas Company, alleging it to have been negligent in (a) introducing L-P gas into the tank when the system did not comply in all respects with the rules and regulations laid down by the Liquefied Petroleum Safety Act and/or the Insurance Commissioner of Georgia, who is charged with the duty and power of enforcing and administering the Act, (b) lighting the pilot of the heater suspended from the ceiling when the heater was defective and not in proper operating condition, (c) failing to take proper precautions to see that the heater with the defective cutoff could not be operated until repaired, (d) failing to take proper precaution to see that the manually controlled heater could not be operated until an automatic safety pilot and cutoff eas placed on it, (e) introducting L-P gas into the tank with knowledge that the gas fixtures in the building were defective and dangerous to operate, (f) failing to anticipate that use of the heating system might result in a violent explosion and taking the necessary precautions to correct the defects therein, and (g) failing to warn plaintiffs of the defective and dangerous condition of the gas heating system in the Lowe Building and of the attendant danger.
To the overruling of their general demurrers and certain of their special demurrers to the petitions, the Lowe brothers and Howell Gas Company except.
Woodruff, Savell, Land & Williams, Atlanta, Erwin, Birchmore & Epting, Eugene A. Epting, Denny C. Galis, Athens, for plaintiffs in error.
Hamilton Lokey, James R. Dollar, Atlanta, George Brooks, Crawford, for defendants in error.
1. The petitions are identical in their allegations of the facts, even to the numbering of the paragraphs, and the demurrers are the same, except infsofar as the allegations of negligence may vary.
(a) We deal first with the general demurrer of the Lowe brothers, owners of the building. Under the allegations of the petition Pickler was in possession of the premises, the Lowe brothers having relinquished it to him under a lease early in September, 1962. It is not alleged that the gas tank, piping and the two automatic heaters were installed in the building by the owners. It is alleged that the manually controlled heater was installed by them, though it is not alleged that either the heater itself was defective or that there was anything wrong with its connection to the gas line. It is not alleged that the owners had any knowledge or notice that there was any defect in the other heaters or in the gas system, or that it was in need of repair. It is not alleged that the owners had knowledge of any danger likely to attend the operation of the system.
It is alleged that the inspection of the system and the filling of the tank was done by Howell Gas Company at the instance of the lessee, Pickler, who was in possession under the lease.
It is not alleged that either Howell Gas Company or Pickler notified the owners of the defects found in the system upon the inspection by Howell's agent. It is not alleged that any request for repairs was made to the owners at any time.
It was not the servant or agent of the owners who turned the valve to the automatic floor heater so that gas would flow through it and who lighted the two floor heaters, leaving them turned low; it was the employee of Pickler, the lessee.
It was not the owner who lighted the pilot on the suspended heater, or who had it done. That was done by Howell Gas, at the instance of the tenant.
Pleadings must by construed in the light of their omissions as well as their averments (Houston v. Pollard, 217 Ga. 184, 187, 121 S.E.2d 629) and it is to be assumed that the pleaded has stated his case as strongly in its favor as the facts will justify. Strother v. Kennedy, 218 Ga. 180, 186, 127 S.E.2d 19.
Neither of these actions is brought by or against the lessee, any servant or invitee of his. They are brought against the owners of the property and the gas company by third parties who have suffered damage resulting from the explosion.
What then, is the measure of responsibility attaching to Lowe brothers, the owners? So long as they were in possession or control of the premises they owed to adjoining landowners the duty of ordinary care not to damage the adjoining property by blasts, explosions or vibrations emanating from their own property. See Ezzard v. Findley Gole Mining Co., 74 Ga. 520; Moross & Co. v. Burke, 99 Ga. 110, 24 S.E. 969; Wachstein v. Christopher, 128 Ga. 229, 57 S.E. 511; Spencer v. Mayor &c. of Gainesville, 140 Ga. 631(2a), 79 S.E. 543; Brooks v. Ready Mix Concrete Co., 94 Ga.App. 791, 96 S.E.2d 213; Ready-Mix Concrete Co. v. Rape, 98 Ga.App....
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