Yarbrough v. Cantex Mfg. Co., 37028
| Court | United States Court of Appeals (Georgia) |
| Citation | 103 S.E.2d 138,97 Ga.App. 438 |
| Docket Number | No. 37028,No. 1,37028,1 |
| Parties | Howard YARBROUGH et al. v. CANTEX MANUFACTURING COMPANY |
| Decision Date | 25 February 1958 |
Page 138
v.
CANTEX MANUFACTURING COMPANY.
Rehearing Denied April 4, 1958.
Page 139
Syllabus by the Court
The trial court did not err in rendering the judgments complained of.
Howard Yarbrough, Herald Yarbrough and Mrs. A. M. Yarbrough, doing business as Yarbrough Brothers, brought an action against Cantex Manufacturing Company, a corporation, to recover for certain alleged acts of negligence on the part of the defendant that allegedly resulted in the destruction of the plaintiffs' store building and its contents by fire. A special demurrer to one of the allegations of negligence contained in the petition as finally amended was sustained, evidence proffered by the plaintiffs was excluded on the defendant's objection, and at the close of the plaintiffs' evidence the defendant's motion for nonsuit was granted. The plaintiffs, in their bill of exceptions, except to the foregoing judgments adverse to them.
Pittman, Kinney & Pope, Dalton, A. Mims Wilkinson, Jr., Atlanta, for plaintiff in error.
Page 140
Hugh M. Dorsey, Jr., Jones, Williams, Dorsey & Kane, Atlanta, A. J. Henderson, Canton, for defendant in error.
NICHOLS, Judge.
1. The plaintiffs were seeking to recover from the defendant corporation damages resulting from loss by fire of their store building and its contents resulting from a fire [97 Ga.App. 439] which spread from the defendant's place of business to their place of business which was located next door. The plaintiffs' action was not based on the negligence of the defendant corporation in permitting the fire to start, but on the contrary, was based on the alleged negligence of the defendant which resulted in the fire spreading to the plaintiffs' store, since it was positively alleged that the origin of the fire was not known.
It was alleged that the fire started on the defendant's premises and spread to the plaintiffs' premises, that such fire started under a loading platform at the rear of the defendant's place of business, that above the ramp, or loading platform under which the fire started there was located an intake ventilation fan, which was in operation at the time the fire started and which forced fresh air into the defendant's building and at the front of the building, on the same floor, there was an exhaust fan exhausting air out of the defendant's building, so that a forced draft was created throughout the first or street floor of said building. 'By reason of the said forced draft completely through said mill, when the flames from the fire, and the intense heat therefrom, ignited the wooden structure under which they originated, consisting of the loading platform and ramp, the said flames and the intense heat therefrom were carried by said intake fan into the interior of said mill and the entire interior of the first or street floor thereof was enveloped in flames as a result of said forced draft throughout said floor. Said fan did not have automatic cut-offs in case of fire, but continued to operate until the fire had engulfed the entire main floor and had involved the entire mill building.' In connection with the above allegations the following allegations of negligence were contained in the plaintiffs' petition: 'o, In failing to have automatic cutoffs on said ventilation fans described * * * and the other ventilation fans in said building, which would stop said fans in the event of a fire in said building.' The defendant demurred to such allegation of negligence as follows: 'The defendant demurs specially to subparagraph 'o' * * * on the ground that the allegation that this defendant was negligent in failing to have automatic cut-offs on the ventilating fans referred to therein, is a mere conclusion of the pleader contrary to law and to fact for the reason that the defendant was under no legal duty to equip such [97 Ga.App. 440] fans with any such automatic cut-offs, and for the further reason...
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