Orkin Exterminating Co. v. Wingate

• Decision Date: 18 October 1951
• Docket Number: No. 2,No. 33789,33789,2
• Parties: ORKIN EXTERMINATING CO. v. WINGATE et al
• Court: Georgia Court of Appeals

Page 250

67 S.E.2d 250

84 Ga.App. 750

ORKIN EXTERMINATING CO. v. WINGATE et al.

No. 33789.

Court of Appeals of Georgia, Division No. 2.

Oct. 18, 1951.

Syllabus by the Court.

1. The conduct of the defendant's agent alleged in this petition to constitute negligence proximately resulting in the loss of plaintiff's property presents a jury question because reasonable minds might disagree as to whether or not such conduct amounts to the required degree of negligence to support a cause of action and as to whether or not such conduct was the proximate cause of the loss. Accordingly it was not error for the trial court to overrule the general demurrer.

2. Certain paragraphs of the petition specified in division two hereof are subject to the special demurrers interposed thereto because they constitute conclusions of the pleader and no facts are set forth in the petition in support thereof.

3. Special demurrers not insisted upon are treated as abandoned.

Mr. and Mrs. Carl L. Wingate, plaintiffs in the trial court and defendants in error here, filed suit against the Orkin Exterminating Company alleging in substance that they owned a described house and personal property of the value of $10,000; that on February 17, 1950, at about 3:45 p. m. this house and property were completely destroyed by a fire which originated in the attic; that an agent of the defendant pest exterminating company, acting in the scope of his employment came to the house and was in the attic between 12:30 and 1:30 p. m. and sprayed a large quantity of some substance about the chimney in the attic of said house; that there was a fire in the circulating heater in the house located in the kitchen, with a flue leading into the chimney, and that the chimney was hot; that no one else was in the attic except defendant's agent, nor did any one else go there after he left and until the house was destroyed by fire. Other pertinent paragraphs of the petition as amended are as follows: '11. The defendant's agent was in the attic in and about the chimney, observed the chimney and knew, or in the exercise of ordinary care, should have known that the same was hot 13. Although the plaintiff does not know the name of said substance, which fact is within the knowledge of the defendant, plaintiffs believe and allege that it was gaseous in form and of a highly inflammable nature. 14. The defendant's agent sprayed said inflammable material about the brick and generally about the attic, without taking any pracautionary measures to see that the same would not cause a fire or was not placed in a position likely to cause a fire. 17. The fire and destruction were caused by the following acts of negligence on the part of the defendant by its agent acting within the scope of his employment, towit: (a) Negligently spraying an inflammable material around the hot chimney. (b) Spraying an unnecessarily large amount of inflammable material around the hot chimney. (c) Failing to take the proper precautions before spraying an inflammable material around the hot chimney. (d) Spraying inflammable material about the attic without proper precaution.'

General and special demurrers to the petition as amended were overruled. The exception is to this judgment.

Martin, Snow & Grant, Macon, for plaintiff in error.

Bell & Bell, Hall & Bloch and Denmark Groover, Jr., Macon, for defendant in error.

TOWNSEND, Judge (after stating the the foregoing facts.)

1. It is contended by the plaintiff in error that since the courts are required to take notice of primary physical laws, Rome Railway & Light Co. v. Keel, 3 Ga.App. 769(2), 60 S.E. 468 and since reference to the Encyclopoedia would reveal that the combustion point of hydrogen and air is 1,058 degrees, a temperature which could not be supposed to be present on the outside surface of a chimney, this court should hold as a matter of law that under the facts alleged in the petition it would have been impossible for a fire to have been started in the attic of the plaintiff's house, and that therefore the petition fails to set out a cause of action. Without deciding whether under...