King Hardware Co v. Ennis, (Nos. 19064, 19065.)

• Decision Date: 22 February 1929
• Docket Number: (Nos. 19064, 19065.)
• Citation: 147 S.E. 119,39 Ga.App. 355
• Court: Georgia Court of Appeals
• Parties: KING HARDWARE CO. v. ENNIS. PURCHASE & SALE CO. v. SAME.

39 Ga.App. 355

147 S.E. 119

KING HARDWARE CO.

v.ENNIS.

PURCHASE & SALE CO.

v.SAME.

(Nos. 19064, 19065.)

Court of Appeals of Georgia,

Division No. 2.

Feb. 22, 1929.

Rehearing Denied March 2, 1929.

(Syllabus by the Court.)

Error from Superior Court, Baldwin County; Jas. B. Park, Judge.

Suit by Mrs. T. Hines Ennis against the King Hardware Company and others. Judgment for plaintiff, and defendant named and the Purchase & Sale Company severally bring error. Affirmed.

Sibley & Sibley, of Milledgeville, and Little, Powell, Smith & Goldstein, of Atlanta, for plaintiffs in error.

Allen & Pottle, of Milledgeville, for defendant in error.

BELL, J. Mrs. T. Hines Ennis brought suit against American Gas Machine Company, King Hardware Company, and Purchase & Sale Company, to recover damages for personal injuries which she sustained as the result of the explosion of a gasoline cooking stove, alleged to have been manufactured by the first-named defendant, sold to the plaintiff's husband by or through the other defendants, and thereafter placed in the plaintiff's home, where she was injured while attempting to use it. King Hardware Company and Purchase & Sale Company filed general and special demurrers, which the court overruled, and they severally excepted. American Gas Machine Company is not a party in this court, because, as stated in one of the briefs, that defendant made an issue as to service, which issue is still pending in the court below. However, as certain allegations with respect to that company must be considered in passing upon the case as to the other defendants, it becomes necessary to state the case substantially as though all the parties sued were now before the court. The defendants in the court below, as named above respectively, will be referred to herein as the gas company, the hardware company, and the sale company.

The petition, with the amendments thereto, made the following case:

On or about June 1, 1927, the gas company, a corporation of New York, was engaged in the business of manufacturing, selling, and distributing in the state of Georgia and other states a certain gasoline cooking stove known as "Kitchenkook, " and through its agents was selling and distributing stoves of this type in the county of Baldwin, wherein the plaintiff resided. The hardware company, a corporation, was the agent and representative of the gas company in the state of Georgia, having its agency and place of business in Fulton county. The sale company was the agent and representative of both the other companies, having its agency and place of business in the county of Baldwin, in this state.

On or about the date above mentioned, the plaintiff's husband was solicited by the sale company, "the agent and distributor of said stoves in said county, to purchase one of said stoves, and said stove was delivered to the said T. Hines Ennis at his home in the city of Milledgeville, occupied by himself and his wife, your petitioner." The stove contained three burners, to which gasoline was distributed from a tank, and, after being lighted, the gasoline vaporized and produced flames necessary for its operation. On July 13, 1927, the stove being in the plaintiff's kitchen, she lighted the burners thereof and returned to her room. A little later, on being informed by a servant that the lights had gone out, she immediately returned to the kitchen for the purpose of relighting the stove, and on striking a match applied it to one of the burners, when the stove suddenly exploded, seriously and permanently injuring her.

All three of the defendants were negligent and liable to the plaintiff because of having manufactured, furnished, and sold to her husband for her use a defective appliance. The stove was defective, in that the gasoline [pipe?] from the tank which supplied the burners was so defective that the gasoline leaked into the stove, and that, as a result, when the burner was ignited, the gasoline which had leaked in immediately caught fire and caused the explosion." The plaintiff had had no experience with stoves of such character, and, in using the particular stove, followed directions "given her by the agents and representatives of said manufacturer and distributors, and * * * she could not have avoided the injuries sustained by her by the exercise of ordinary care and diligence."

Being entirely unfamiliar with the construction and operation of the stove referred to, the plaintiff "is unable to set out specially and in detail the particulars in which said stove was defectively constructed. She avers that said stove was constructed with three gas burners on the top, and one gas burner in the oven. At the right of said stove and at the top was a tank or receptacle wherein the gasoline, fed into the pipes leading to the burners, was stored. When the burners were lighted, the heat caused the gasoline to vaporize and generate a gas. When the burners were not lighted, the flow of gasoline should automatically have stopped, if said stove was properly constructed. Plaintiff avers that said stove was defectively constructed, in that, when the burners were not lighted, the flow of gasoline, instead of being stopped, as ordinary diligence in construction required, seeped into the oven and accumulated there, and when she undertook to relight the burner after it was extinguished the flame came in contact with said accumulated gas, and caused the explosion hereinbefore described. Plaintiff charges that, when she undertook to relight the extinguished burner, she was wholly unaware that said gasoline had escaped and seeped into the oven, and, being unacquainted with the mechanism of the stove, had no means of knowing that fact. She relied, and had the right to rely, on the representations, both express and implied, ofthe manufacturer and the distributors that said stove was properly and skillfully constructed."

At the time the plaintiff acquired the stove, and before she undertook to use it, "an agent and representative of the manufacturer, and of the jobber, King Hardware Company, and the retailer, Purchase & Sale Company, came to her home and superintended the installation thereof. She avers that she is unable to give the name of said agent, not knowing the same, but she does aver that said agent gave her specific instructions as to the operation of said stove, and assured her that it was impossible for said stove to explode. She avers that she followed the instructions of said agent to the letter on every occasion upon which she used said stove." The plaintiff "brings her action against the three defendants named as joint trespassers * * * disclaiming all right of action on account of any contractual relationship."

The stove at the time of the explosion was in the same condition as when it was furnished to her, and its condition had remained unchanged from the time it was delivered by the gas company to the hardware company, from which it passed to the sale company and thence into the home of the plaintiff. "The dangerous character of said stove was known to all three of said defendants, or could have been known by the exercise of ordinary care and diligence." The stove was manufactured by the gas company for the purpose of being sold generally to the trade, and the hardware company, "as the distributor of said stove and other stoves of a similar character manufactured by the manufacturer, intended the distribution thereof among its various patrons, and knew that said stove would likely be purchased and used by some purchaser thereafter, and that said Purchase & Sale Company, the retailer, procured said stove, and other stoves of similar character, with the full intent and purpose to sell the same to the retail trade, well knowing that they would probably be purchased by consumers."

With the exception of certain grounds of the demurrer filed by the hardware company, relating to misjoinder and want of jurisdiction, none of which have been argued or insisted upon in the briefs, and are therefore considered as abandoned, the demurrers of each of the defendants were substantially the same, and their several grounds, while not presented in the order named below, were in brief as follows:

(1) No cause of action set forth.

(2) Allegations of negligence too vague, indefinite, and uncertain.

(3) Allegations insufficient to show any defect, or whether defect was latent or patent.

(4) The allegations that, "when the burners were not lighted, the flow of gasoline should automatically have stopped, if said stove was properly constructed, " and that "said stove was defectively constructed, in that, when the burners were not lighted, the flow of gasoline, instead of being stopped, as ordinary diligence in construction required, * * * seeped into the oven and accumulated there, " are mere conclusions of the pleader, being unsupported by any specific allegation of fact.

(5) It is not shown what acts of care or diligence the plaintiff did.

(6) From the petition as a whole it affirmatively appears that the plaintiff's injuries were not caused by any negligence of the defendants, but were the result of her own negligence and failure to exercise ordinary care.

Whether the petition sets forth a cause of action as against the gas company, the manufacturer, is a question with which we are, of course, not concerned in this case. As to the other two defendants we think the petition good. The petition seems to be duplicitous, in that in some places it refers to the hardware company and the sale company as the manufacturer's agents, while in other places it refers to them, respectively, as wholesaler or jobber and local dealer. However, there was no demurrer upon the ground of duplicity; and since, in our opinion, the petition sufficiently states a cause of action against the defendants as sellers, it is unnecessary to determine whether the same would be true, should they be considered as mere agents of the manufacturers. Citizens' & Southern Bank v. Union Warehouse &...