Kuhr Bros., Inc. v. Spahos

• Decision Date: 09 March 1954
• Docket Number: No. 1,34811,34797,Nos. 34796,s. 34796,1
• Citation: 81 S.E.2d 491,89 Ga.App. 885
• Parties: KUHR BROS., Inc. v. SPAHOS. ALTMAN v. SPAHOS. SPAHOS v. KUHR BROS., Inc. et al
• Court: Georgia Court of Appeals

Page 491

81 S.E.2d 491

89 Ga.App. 885

KUHR BROS., Inc. v. SPAHOS.

ALTMAN v. SPAHOS.

SPAHOS v. KUHR BROS., Inc. et al.

Nos. 34796, 34797, 34811.

Court of Appeals of Georgia, Division No. 1.

March 9, 1954.

Rehearing Denied March 25, 1954.

Syllabus by the Court

The trial court did not err in overruling the general demurrers to the petition, nor in sustaining certain of the special demurrers to allegations of the petition respecting an element of damages claimed which was not recoverable.

Johnny S. Spahos brought a suit against George G. Altman and Kuhr Brothers, Incorporated, in Chatham Superior Court. His petition is in two counts, each of which is in substance the same, except that in one count he treats Kuhr Brothers, Incorporated, as the agent of Altman, and in the other he alleges it to be an independent contractor. The petition alleges in substance: that the plaintiff entered into a contract with Altman to purchase from Altman a house located in Savannah Beach, Georgia; that Altman agreed to furnish a furnace for the house, before conveying the house to the plaintiff; that in compliance with the contract Altman engaged Kuhr Brothers, Inc., to install the furnace; that the furnace was installed in the house with a furnace pipe resting against some of the wood work of the house, namely a door header; that the defendants violated the following ordinance by installing the pipe, a flue, so that it came within two inches of the wooden portion of the house: 'Be it ordained by the Mayor and Councilmen of Savannah Beach, Tybee Island, and it is hereby ordained by the authority of the same, as follows: * * * Sec. 5 * * * (g) All wooden and other combustible construction shall be kept at least two inches from chimneys and flues * * *'; that the pipe was covered only by a very thin layer of asbestos; that placing it against the wooden door header created an imminent danger of causing the house to catch fire and burn; that the defendants violated another part of the city ordinance by not having the work inspected by the authorities of the city, that part being as follows: Sec. 6(b) 'Flues not conforming to the requirements for chimneys shall be used only if of a type approved by the building official * * *'; that the flue installed did not conform to the requirements for chimneys; that the type of flue installed by the defendant Kuhr Brothers, Inc., was never approved by the building official; that the failure to obtain the approval of the building official for this type of flue was negligence; that such negligence was a proximate cause of the damages sued for by reason of the fact that, had the defendants not been guilty of such negligence, their plan to install this particular type of flue would have been detected by the building official and the danger of the house burning would have been discovered, revealed, and averted; that the defendants failed to obtain from the Building Inspector of the Town of Savannah Beach a building permit for the installation of the furnace; that section 4 of the Building Code of the Town of Savannah Beach, ordained by the Mayor and Councilmen of said town in council assembled on March 6, 1947 provides: 'Application for a building permit must be made by the owner or his agent accompanied by a set of plans or blueprints together with specifications of the work to be done. * * * A permit must be secured for * * * all alterations'; that the failure of the defendants to obtain a building permit for said alteration was a violation of the law and was negligence; that such negligence was a proximate cause of the damages sued for, by reason of the fact that, had the defendants not been guilty of such negligence, their negligent plan for construction or alteration as aforesaid would have been detected by the building inspector, and the plan would not have been allowed to be carried out; that the defendants 'knew, or from the fact of the proximity of the said smoke pipe or flue to the said wooden structure, should have realized that the furnace was or was likely to be dangerous for the use for which it had been intended; that the defendants had no reason to believe that the persons for whose use the furnace was installed would realize its dangerous condition; that the defendants failed to inform the plaintiff and failed to do anything to inform the plaintiff of the dangerous condition of the furnace or of the facts which made it likely to be dangerous; that the dangerous condition was unknown to the plaintiff; that the plaintiff, not knowing of the danger, moved his family and household effects into the house and began using the furnace; that by reason of the contact of the flue with the wooden header, the house caught fire and burned, causing the plaintiff enumerated damages.'

The defendants' general demurrers to the petition were overruled, and they except in separate bills of exceptions. Certain of the defendants' special demurrers to the petition were sustained, and the plaintiff excepts thereto by cross-bill of exceptions. Nos. 34796, 34811:

Lewis, Wylly & Javetz, Savannah, for plaintiff in error.

Sullivan & Maner, Savannah, Emanuel Kronstadt, for defendants in error.

On cross-bill, No. 34811:

Sullivan & Maner, Savannah, for plaintiff in error.

Lewis, Wylly & Javetz, Emanuel Kronstadt, Savannah, for defendants in error.

No. 34797:

Emanuel Kronstadt, Savannah, for plaintiff in error.

Sullivan & Maner, Lewis, Wylly & Javetz, Savannah, for defendant in error.

QUILLIAN, Judge.

1. The action is one ex delicto and not one ex contractu. While the plaintiff sets out in his petition a copy of the sales agreement between himself and the defendant Altman, which contained the agreement as to the installation of the furnace, he does not predicate his action on a breach of a contract provision or of an express duty undertaken by Altman under the contract. The contract was alleged to show that the plaintiff and Altman stood in the relationship of vendor and vendee, and to show that Altman owed to the plaintiff the peculiar duties owed by a vendor to a vendee, and it is for the violation of one of these peculiar duties which arose by reason of their relationship that the plaintiff sues. Rushin v. Central of Ga. Ry. Co., 128 Ga. 726, 58 S.E. 357. It is also for this reason that the question of the merger of warranties and covenants in deeds does not arise in this case. The duty sued on has its source in the law and not in the contracts. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696.

2. (a) Over and beyond the obligation in contracts, it is fundamental that every person owes a duty to exercise ordinary care not to supply by sale, lease, etc., a thing, instrumentality, or building which is so defectively constructed or conditioned as to be imminently dangerous to the person to whom supplied or subject to damages itself by reason of its condition. Moody v. Martin Motor Co., 76 Ga.App. 456, 46 S.E.2d 197; Restatement of the Law of Torts, p. 1039, § 388. The pleaded ordinances in this case were passed for the purpose of preventing such catastrophes as the one alleged in this case. The owner of the property and the contractor, it would seem, are the ones upon whom the primary duty of permits and inspections is placed. A purchaser of a house would have a right to assume that the permits had been granted and the proper inspections made. The basic premise is that the owner should procure experts to do the construction work and/or have the work inspected and checked and approved by official experts to render the property safe for use.

(b) While ordinarily an independent contractor is relieved of liability where the work contracted for is accepted by the owner, an...