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HOWELL GAS OF ATHENS, INC. et al. v. COILE.
HOWELL GAS OF ATHENS, INC. et al. v. BROOKS.
41457.
41458.
Actions for damages. Oglethorpe Superior Court. Before Judge Williford.
EBERHARDT, Judge.
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 appliances 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 electric 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. Cone'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, have 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 plaintiff of the defective and dangerous condition of the gas system in the Love 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 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 was placed on it, (e) introducing 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.
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 insofar as the allegations of negligence may vary.
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 be construed in the light of their omissions as well as their averments ( Houston v. Pollard, 217 Ga. 184, 187 (121 SE2d 629)), and it is to be assumed that the pleader has stated his case as strongly in his favor as the facts will justify. Strother v. Kennedy, 218 Ga. 180, 186 (127 SE2d 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 the 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 Gold Mining Co., 74 Ga. 520; Moross & Co. v. Burke, 99 Ga. 110 (24 SE 969); Wachstein v. Christopher, 128 Ga. 229 (57 SE 511); Spencer v. Mayor &c. of Gainesville, 140 Ga. 632 (2a) (79 SE 543); Brooks v. Ready-Mix Concrete Co., 94 Ga. App. 791 (96 SE2d 213); Ready-Mix Concrete Co. v. Rape, 98 Ga. App. 503 (106 SE2d 429); City of Griffin v. McKneely, 101 Ga. App. 811 (3) (115 SE2d 463), Richmond County v. Williams, 109 Ga. App. 670 (137 SE2d 343); City of Atlanta v. Donald, 111 Ga. App. 339 (141 SE2d 560), reversed on grounds in 221 Ga. 135 (143 SE2d 737) "A landowner who, himself or by others under his direction or permission, negligently or unskillfully performs an act on his premises which may and does inflict injury on an adjoining owner is liable for the damage so caused." 2 CJS 38, Adjoining Landowners, 45 (a).
In Code Ch. 85-12 are statutory provisions affecting the responsibility of an adjoining owner to afford lateral support and for liability in the event of failure to do so, but we find little help from these in dealing with the problem now before us. By Code 105-401 the owner or occupier of land is made liable to one who, by express or implied invitation, goes upon the land and suffers injury from an unsafe condition existing on it. This, too, is of little help. The word "owner" as used in 105-401 is not synonymous with "landlord" as used in 61-112, and where the owner has fully parted with possession by rental or lease his liabilities are measured by 61-112, 105-401 having on application. Dobbs v. Noble, 55 Ga. App. 201, 202 (2) (189 SE 694).
In some jurisdictions it is held that where the premises are, at the time of the letting, in a defective and dangerous condition by reason of faulty construction or want of repair or by reason of the maintenance on the premises of a condition endangering the health or safety of strangers, the lessor may be held liable to third parties who suffer injury thereby. 32 Am.Jur. 643, Landlord & Tenant, 757. But the rule in Georgia is found in Code 61-111 and 61-112.
Under this rule the landlord may be held if injury results from a defect in construction and it appears that the improvement was built or installed by him or under his direction ( Dobbs v. Noble, 55 Ga. App. 201, at 203 (3), supra), for in that event he is conclusively presumed to know of the defect ( Fuller v. Louis Steyerman & Sons, 46 Ga. App. 830 (169 SE 508); Stack v. Harris, 111 Ga. 149 (36 SE 615)), or from failure to repair.
In some circumstances a landlord who leases premises to another, knowing at the time that a defective and dangerous condition exists from which the tenant, his invitee or even a stranger, may suffer harm, will be held liable. "A landlord who has leased premises to a tenant is not liable for a nuisance maintained upon the premises, by the tenant, during the lease. If the nuisance existed upon the premises which the lease was made, the landlord is liable. But if the tenant continues the nuisance after he obtains exclusive possession and control, he alone is liable for its continuance." Vason v. Augusta, 38 Ga. 542. And see Gardner v. Rhodes, 114 Ga. 929 (41 SE 63, 57 LRA 749). (It is to be noted that even in that situation if the tenant continues the nuisance after taking over, the landlord is relieved, for it becomes the duty of the tenant to abate it.) "The landlord, having fully parted with possession and right of possession, is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; but he is responsible to others for damages arising from defective construction or for damages from failure to keep the premises in repair." Code 61-112. Does the last clause, "or for damages from failure to keep the premises in repair," afford a remedy to third parties if the landlord had no notice of the defect giving rise to a need for repair? It seems to have been settled by the decisions of both this court and the Supreme Court that it does not. Scienter or notice is essential. "A landlord is not liable for personal injuries to a servant of his tenant, arising from a defect in the rented premises of which the landlord had no knowledge and which he had not been notified to repair." Ocean Steamship Co. v. Hamilton, 112 Ga. 901 (1) (38 SE 204). "[T]he landlord's duty to keep the premises in repair does not, under any theory, result in making the landlord liable for a latent defect in the premises, simply because it existed at the time of the lease." Elijah A. Brown Co. v. Wilson, 191 Ga. 750, 751 (13 SE2d 779). The reason being, of course, that unless it is a defect in construction or installation the landlord is entitled to have notice and opportunity to make repairs. There is an exception if it appears that the landlord had actual knowledge of a latent defect at the time of leasing, for in that event the duty to repair had already arisen. Actual knowledge on the part of the Lowe brothers of the defective cutoff is not alleged.
"There is no duty of inspection resting upon the landlord to discover defects arising subsequent to the time of the lease, and his duty to repair arises only on notice by the tenant of the existence of such defects, or by virtue of actual knowledge by the landlord of their existence." Godard v. Peavy, 32 Ga. App. 121 (1) (122 SE 634). "The landlord is under no duty to inspect the premises while the tenant is in possession . . ." Ross v. Jackson, 123 Ga. 657, 658 (51 SE 578). "[A]n inspection by the landlord is not required for the purpose of anticipating and discovering defects arising from an abnormal and improper use or misuse of [heating] equipment." Kleinberg v. Lyons, 39 Ga. App. 774 (2) (148 SE 535). This is because "the use of the tenements really belongs to the tenant during the lease; they are his property to use for the term for which they are rented; and the landlord has no right to enter upon them, except by permission of the tenant, during the term for which they are rented." White & Co. v. Montgomery, 58 Ga. 204, 207. Accord, Freidenburg & Co. v. Jones, 63 Ga. 612, 615.
Dealing with the last clause of 61-112 in Birdsey v. Greene, 176 Ga. 688, 690 (168 SE 564) the Supreme Court asserted: "As we understand it, the section now under consideration was designed simply to embody a rule of law which was well settled and well understood at the time of its codification, and not to enlarge the duty devolving upon landlords with respect to the making of repairs, nor to impose upon them a harsher rule of responsibility than that to which they were already subject," and proceeded to hold that the duty to make repairs arises only when the landlord has notice of the defect. There is, then, no duty to third parties in this respect unless it appears that the defect was one about which the owner knew or of which he had notice.
There is no allegation that the floor heater having an automatic cutoff was installed by the owner, nor is it alleged that he was ever notified of any defect in the cutoff. As we have already determined, the defect was discovered when the agent of Howell Gas made the inspection at Pickler's instance. If Pickler was not informed of the defect by Howell's agent, he ought to have been on notice that something was wrong when the valve on that heater was closed so that gas could not flow through it. When he proceeded after that, by his employee, to reopen the valve and place the heater in use, the negligence was that of the tenant--not the landlord. "As a general rule, the landlord is not liable to third persons for any injuries they sustain, occasioned by the wrongful act of his tenant, since the tenant is not the agent of the landlord, and he is not responsible as such for the tenant's misconduct." Kleinberg v. Lyons, 39 Ga. App. 774 (4), supra; accord, Edgar v. Walker, 106 Ga. 454, 458 (32 SE 582). Cf. Bixby v. Sinclair Refining Co., 74 Ga. App. 626 (40 SE2d 677).
[W]here a landlord . . . applies for gas, and a workman of the gas company reports to him for the purpose of making the connection, it is incumbent upon the landlord to protect his own interest and that of the tenants by seeing that such pipes are in a proper and safe condition . . . The rule is similar where a tenant applies for gas. It is his duty to protect his own interest and that of those occupying the premises under his control by seeing that the pipes within such premises are in a safe and proper condition." Atlanta Gas Light Co. v. Sams, 29 Ga. App. 446 (116 SE 21).
While it is alleged that the blower fan on the suspended heater was not in operating condition, it neither appears that this was any part of the cause of the explosion nor that this defect was brought to the owner's attention.
It may have been negligence on the part of Pickler's employee to turn the heaters low--so low that they became extinguished from a draft, from a variation of pressure in the gas line, or from some other cause, and filled the room with gas that exploded from the pilot of the suspended heater, but that was not Lowe's negligence; it was Pickler's.
It is contended that the mere installing of the manually controlled heater in the same room with others having pilot lights and automatic cutoffs was negligence, but we can not agree. There is nothing wrong with a manually controlled heater itself. No matter where it may be installed it is incumbent upon one who uses it to do so in a safe and proper manner. Neither the Liquefied Petroleum Gas Act nor regulations issued thereunder prohibit its installation and use. It does not appear that the other heaters were not in proper operating condition when the manual heater was installed. Any heater or appliance, whether manual or automatic, may at some time after installation become inoperable. Whether it occurred before or after the tenant took possession under the lease does not appear. But it does appear that the tenant knew or should have known of the condition before the heaters were placed in use. Thus, if it was negligence to place the manually controlled heater in use along with another having a defective cutoff, that was the tenant's negligence, for it was the tenant, not the landlord, who did it.
Although gas is a highly explosive and dangerous substance ( Community Gas Co. v. Williams, 87 Ga. App. 68, 78 (73 SE2d 119)), and a greater degree of care is to be exercised by those who deal with it than is required in the affairs of ordinary life ( Harvey v. Zell, 87 Ga. App. 280, 285 (73 SE2d 605)), we can see no basis for holding the owners of the building negligent under the allegations of these petitions. Their general demurrers should have been sustained.
2. It is unnecessary to determine whether the allegations are sufficient to set out a cause of action against Howell Gas Company, for it appears that the court in which suit was filed has jurisdiction only if there is a cause of action against the Lowe brothers, who are residents of that county. Howell Gas Company is alleged to be a corporation having its office, place of business and agents in another county. Thus, for that reason, its general demurrers should have been sustained. Richards & Associates v. Studstill, 212 Ga. 375 (93 SE2d 3); Lewis v. Wilson, 111 Ga. App. 666 (142 SE2d 852). Cf. Warren v. Rushing, 144 Ga. 612 (1) (87 SE 775); Jordan v. Charles S. Martin Distr. Co. . 90 Ga. App. 186 (82 SE2d 263); Charles S. Martin Distr. Co. v. Roberts, 111 Ga. App. 653 (143 SE2d 11); Ryder Automobile Leasing Co. v. Tates, 112 Ga. App. 18 (143 SE2d 411).
3. This renders unnecessary any determination of whether there was error in rulings on the special demurrers.
Judgments reversed. Nichols, P. J., and Pannell, J., concur.
Hamilton Lokey, James P. Dollar, George Brooks, contra.
Woodruff, Savell, Lane & Williams, Erwin, Birchmore & Epting, Eugene A. Epting, Denny C. Galis, for plaintiffs in error.
ARGUED SEPTEMBER 10, 1965 -- DECIDED NOVEMBER 24, 1965.
Friday May 22 20:59 EDT


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