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FLOYD v. MORGAN.
39555.
Action for damages. Cobb Superior Court. Before Judge Henderson.
BELL, Judge.
2. The remaining specifications of negligence in the petition were sufficient to state a cause of action.
Plaintiff's action for damages arose from the explosion in a furnace which had been installed by the defendant and later repaired by him. The petition charged that after the defendant inspected the furnace and installed a new transformer, he advised the plaintiff that the furnace was in good condition and would give another ten years of service; that in replacing the transformer defendant failed to complete the installation and failed to connect securely the wires which provided electrical contact from the transformer to the electrodes which fire the furnace; that the vibration while the furnace was in operation because of the loosely inserted wires caused it to lose electrical contact, causing the furnace to cease operating; that the defendant was advised on several occasions that the furnace was not operating properly and was requested to repair it; that he sent two of his employees to make the repairs, and on each occasion they told the plaintiff's wife "the trouble was fixed"; that the furnace was cut off during the summer; that with the onset of cool weather in 1959, plaintiff started the furnace and discovered that the wires had never been properly connected by the defendant or his employees; and the defendant was again requested to make the repairs; these requests were repeated over a period of some five weeks, the defendant promising but failing to make the repairs; that during this period plaintiff's wife advised the defendant on several occasions that the furnace was pumping oil without burning, and she was fearful that an explosion would result if he did not repair the furnace; that the defendant advised the plaintiff there was no cause for alarm and that if her husband would cut the thermostat down the furnace could not possibly explode; that the plaintiff was able to resume the electrical contact by pushing the loose wires into the hole in which they were inserted at the end of the electrode; and that before re-inserting the wires plaintiff on each occasion cut off tide electrical supply to the firing unit of the furnace by cutting the thermostat down and off; that on October 21, 1959, the plaintiff cut down the thermostat according to the defendant's instructions, went down into the basement to adjust the loose wires, and when he did so, the furnace exploded without any warning whatsoever, producing the injuries for which this action is brought.
The petition charged the defendant with the following acts of negligence which directly and proximately caused plaintiff's injuries and damages: (a) in failing to complete the installation of the wires to the electrodes in March of 1959; (b) in failing to discover and correct the faulty installation in the spring of 1959; (c) in failing to come by the plaintiff's residence, under the circumstances, to properly connect the wires during September and October of 1959, after repeatedly promising the plaintiff's wife he would do so; (d) in failing to warn the plaintiff or his wife of the danger of re-inserting the wires in the electrodes; and that an explosion might result; and (e) in assuring the plaintiff's wife that there was no danger of the furnace exploding, under such circumstances that the defendant knew said assurances would be communicated to the plaintiff.
Defendant demurred generally to the petition and to the petition after amendment. The trial judge overruled the general demurrer to the amended petition. The exception to this order brings the case to this court.
1. The allegation in the petition that the defendant was negligent in failing to warn the plaintiff or his wife of the danger that an explosion might result if the wires were re-inserted in the electrodes does not charge actionable negligence since there are no allegations in the petition that the defendant knew or should have known that the plaintiff was reinserting the wires. It is obvious that if the defendant had no knowledge of the plaintiff's action, the defendant would have no duty to warn him of the hazards involved.
2. The petition charges that the damages and injuries the plaintiff sustained were directly and proximately caused by acts of negligence of the defendant in failing to complete the installation of the wires to the electrodes; in failing to discover and correct the faulty installation later on; and in failing subsequently to connect properly the wires after repeated promises to do so; and in assuring the plaintiff's wife that there was no danger of the furnace exploding, which assurance the defendant knew would be communicated to the plaintiff.
Under the facts alleged in the petition, these charges of negligence could be found by the jury to be actionable. "Representations imply knowledge, and if a tradesman sells or furnishes an article representing it to be safe for the uses for which it was designed . . . and if it turns out that the article was defective, then, in a suit against him for injuries occasioned thereby, an allegation that he either knew or ought to have known of the defects will be sufficient as a charge of negligence in his failure to know." King Hardware v. Ennis, 39 Ga. App. 355, 363 (147 SE 119). See also Chitty v. Horne-Wilson, Inc., 92 Ga. App. 716 (89 SE2d 816).
"One so supplying a chattel is subject to liability if by word or deed he leads those who are to use the chattel to believe it to be of a character or in a condition safer for use than he knows it to be or to be likely to be." Moody v. Martin Motor Co., 76 Ga. App. 456, 459 (46 SE2d 197).
We feel that the duty to warn persons of dangers of chattels supplied or repaired extends to a faulty component part of a furnace and its wiring. The same liability which adheres to the manufacturer attaches also to an independent contractor who repairs an article or machine. Moody v. Martin Motor Co., 76 Ga. App. 456, 461, supra. See also 2 Restatement, Torts, 395-398 and 404.
The defendant urges that since the petition shows the plaintiff was an electronics serviceman and that he started the furnace by inserting the loose wires into the electrodes, it would be assumed that the plaintiff had knowledge of what he was doing and assumed the risks incidental thereto. We feel the plaintiff has well answered in his brief this contention that the plaintiff could no more the charged with knowledge of the mechanism of an oil furnace than the defendant could be charged with knowledge of the mechanism of an electronic brain.
Questions of the plaintiff's contributory negligence or assumption of risk under the facts alleged would be for the jury to determine.
Each of the allegations of the petition initially recited in this division of the opinion charged actionable negligence. The trial court properly overruled the general demurrer to the amended petition.
Judgment affirmed. Felton, C. J., and Hall, J., concur.
Woodruff, Latimer, Savell, Lane & Williams, Edward L. Savell, contra.
Ben F. Smith, for plaintiff in error.
DECIDED JULY 16, 1962.
Friday May 22 22:50 EDT


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