The court did not err in sustaining each defendant's general demurrer to the petition and in dismissing the action as to each defendant.
Charles T. Baxley sued Williams Construction Company, Moss Construction Company and Fred Carpenter Plumbing Company, all corporations, for damages for personal injuries. The petition as amended is, as to allegations necessary to a decision, as follows: 2. On or about the 22nd day of August, 1957, and for several weeks prior thereto the defendant Williams Construction Company, hereinafter referred to as Williams, was engaged as general contractor in the construction of a series of apartment buildings upon the Fort Benning Military reservation, now territory of the United States of America but which was formerly part of Muscogee County, Georgia. Said apartment buildings under construction are known as the Capehart Housing Project. As general contractor for said project defendant Williams maintained and controlled the premises of said project and exercised complete control and the right to control all phases of construction being carried out upon said project. 3. On said date Moss Construction Company, hereinafter referred to as the defendant Moss, under the general supervision of the defendant Williams, and acting under the direction and control of the defendant Williams, who at all times maintained the right to control and direct said Moss, was engaged in laying certain sewer lines in and between said apartment buildings at said project. 4. On said date Fred Carpenter Plumbing Company, herein after referred to as the defendant Carpenter, under the general supervision of defendant Moss and defendant Williams, and as the agent of defendant Williams, subject at all times to the control and direction of defendant Williams, was engaged in installing certain plumbing equipment and pipes in and around said apartment buildings of said project and in particular in installing pipes in building Number 98 of said project. 5. On or about August 22, 1957, there existed an excavation in said housing project which excavation was within ten feet of the building designated as Number 98. 6. Said excavation had been made by the defendant Moss through its agents, servants and employees acting in the course of their employment and within the scope of their authority for the purpose of installing a manhole or vent from a sewer line being put in place by the defendant Moss. 7. This excavation aforesaid had been dug about six or seven days prior to August 22, 1957, and was approximately eight feet deep and six feet in circumference. 8. After said excavation was dug the brick coping about the manhole was put in place but both the concrete ring that supports the manhole cover and the manhole itself were left off. The excavation was left in this unfinished condition for three or four days prior to the incident hereinafter related that occurred about 1:30 a.m. on August 22, 1957. Immediately after such incident and as soon as daylight
on August 22, 1957, said concrete ring and cover were installed and the excavation filled in. 9. On August 22, 1957, there were no warning lights, flares, or other signals around the excavation to warn persons in the vicinity of the presence of the same. 10. On August 22, 1957, there was no artificial illumination of any kind such as electric street lights, arc lamps or other lighting devices during the hours of darkness in or near building Number 98. This condition prevailed at the time of the event hereinafter related. 11. The said excavation, approximately eight feet in depth with an unfinished brick coping rising in the middle, within ten feet of a building under construction with broken concrete blocks, ripped boards, and other building debris lying about the opening, without any barricade to guard it and without any warning lights or flares set out around it constituted a mantrap or concealed peril to persons lawfully on the premises, particularly during the hours of darkness and in particular to the plaintiff herein. 12. On August 21; 1957, the defendant Carpenter through its agents, servants, and employees acting in the course of their employment and within the scope of their authority had "roughed-in" the plumbing in approximately eight apartment buildings in that particular area, among them Building Number 98. For a period of at least two months before this process was carried out at building Number 98, agents, servants and employees of the defendant Carpenter had been carrying out a similar process in other buildings under construction in the same area and as part of the same project. In such other buildings and in building Number 98 the defendant Williams had provided and installed an insulation board immediately next to the interior framing of the building which insulation or weatherboard came within one inch or less of the pipes, the joints of which were being "sweated" by the agents of the defendant Carpenter. The particular insulation board used was of pulpy, fibrous material, the exact composition of which is unknown to the plaintiff but well known to the defendant Williams. On numerous occasions prior to August 22, 1957, the framing timbers and the aforesaid insulation board had burst into flames under the heat used in the "sweating" process by the agents of the defendant Carpenter. Both the defendants, Williams and Carpenter knew of the flammable nature of the insulation board, which was the same weatherboard used in building Number 98. Agents of the defendant Carpenter and the defendant Williams had attempted to control the combustible condition of the insulation board by the use of fire extinguishers, a wetting down process and other measures. Notwithstanding that both Williams and Carpenter knew of this condition the defendant Williams continued to supply and install such weatherboard or insulation board and the defendant Carpenter continued to use open flame torches about the copper pipes and joints involved in the "sweating" process. For the entire working day prior to the time of the fire hereinafter referred to in building Number 98 such agents and servants of Carpenter had used open flame torches in said buildings to melt the lead used to secure union about the joints of the pipes. They had used such torches close to the framing timbers and close to the insulation board aforesaid and the open flame from said torches had come in contact therewith, and at the close of working hours on August 21, 1957, the insulation board and the timbers aforesaid in building Number 98 were left smoldering and in combustible condition. 13. On August 21, 1957, at or about 7 p.m. a fire started in one of the buildings in the aforesaid project in the close proximity to Building Number 98, which fire was extinguished by firemen from fire station No. 1 at Fort Benning. The identity of said building is not known to the plaintiff but is well known to the defendant Williams. At such time acting Fire Chief Fincher contacted the night watchmen for the defendant Williams to guard and check the area, namely William J. Blasingame and John H. McKenzie, and instructed them to make an inspection of all buildings in the area to determine whether there was any danger of fire in any buildings in addition to the one in which they had just extinguished the fire. One of the buildings which such watchmen were instructed to inspect was building Number 98 hereafter referred to. Following the fire at or about 7 p.m. in the building aforesaid which the plaintiff believes and therefore avers to be building Number 100, the general foreman of the defendant Williams, to wit, H. P. Perry, was called to the scene, examined Building 100 and dis-
covered that such fire had originated in the insulation or weather board used in such building, which was similar in composition and manufacture to that used in building Number 98, but thereafter failed and neglected to inform the defendant Carpenter of such occurrence, and failed and neglected to require the defendant Carpenter, its agents, servants and employees to take further precautions that night against further fires in the other buildings wherein the agents of the defendant Carpenter had used open flame torches and carried out a "sweating" process on August 21, 1957, of which building Number 98 was one. Further such general foreman of the defendant Williams failed and neglected to inform Carpenter, its agents and servants of such occurrence, and to have them place a fire-guard in the area, and in the vicinity of building Number 98 or to take other precautions against the recurrence of such fire. 13(a). By reason of the earlier fire at or about 7 p.m. August 21, 1957, and the discovery of the cause of such fire by the general foreman of the defendant Williams, to wit, H. P. Perry, the defendant Williams knew of the presence of firemen in the area who were called to extinguish the fire which occurred at 7 p.m. Further, the defendant Williams knew of the warning of the possibility of a recurrence of fire in building Number 100, or other buildings in this particular area upon which employees of Carpenter had worked that day, of which building Number 98 was one, and the defendant Williams through its general foreman H. P. Perry knew of the existence of sewer manholes and open ditches in the area, and in particular of the one located about ten feet from building Number 98, which said sewer manhole is the one involved in the incident hereinafter described, and further knew of the presence of the danger from fire which the Fort Benning firemen, of whom the plaintiff herein was one, would be called upon to extinguish. Despite all this knowledge the defendant Williams, its agents, servants and employees took no steps to protect firemen subsequently called to the scene, and in particular the plaintiff. 14. On August 22, 1957, the plaintiff Baxley was employed as a fireman by the U. S. Government, and was stationed at Fire Station Number One, at Fort Benning, for the performance of his duties in connection with his employment as a fireman. 15. At or about 1:30 p.m. on said date plaintiff Baxley with other firemen on duty was called to the aforesaid Capehart Housing Project, and in particular to the area occupied by Building 98 for the purpose of extinguishing a fire which had broken out in Building Number 98. At the time the plaintiff along with other firemen arrived at building Number 98 the roof of the same had fallen into the interior of the dwelling, and the greatest portion of the flames was confined within the structure. Portions of the walls were still standing and because of this there were alternate patches of light and shadow surrounding the burning building. One such shadow covered the excavation aforesaid and this opening in the earth blended with the surrounding area in shadow so that the entire area appeared to be of solid earth. Further, the plaintiff prior to the order given him hereafter referred to, had been looking toward the fire and flame existing in building Number 98, and his nighttime vision had been affected thereby in such manner that he could not distinguish between the earth and an opening therein in the shadows aforesaid. 16. While the blaze in building Number 98 was still going on the plaintiff was ordered by his superior, acting Fire Chief Fincher, to inspect the building Number 99 which was approximately 50 or 60 feet northwest of building Number 98 for the possibility of sparks firing such building. At the time the plaintiff was given this order he and his superior, Fincher, were standing in front of Building Number 98 and the excavation aforesaid was to his left and between him and building Number 99. The plaintiff had to traverse the area aforesaid in the shadow in which the excavation was located to reach building Number 99 and carry out the order given him by his superior. He had no knowledge that the excavation referred to existed in this area, not being personally familiar with the construction of large housing projects, sewer manholes or similar types of construction. As he turned away from the blaze of building Number 98 and stepped into the shadow aforesaid, the ground adjacent to the excavation deprived of lateral support because of the excavation gave way under his weight and he was thrown into the excavation aforesaid. At such time plaintiff took such route
to building Number 99 because it was the shortest, and he was under a duty to comply with the order of his superior immediately in an emergency. 17. At the time that he was thrown into the excavation the plaintiff landed with his back across the brick coping and sustained a fracture of the sacrum, or a broken back . . . 18. During military service in World War II the plaintiff sustained injuries to his back as the result of which he underwent a fusion of three vertebrae of the spine in the sacral area. 19. As the result of the injury on August 22, 1957, to the sacrum and the nerves and muscles to his back in that area, and the muscles and nerves of his back and in the presence of the existing spinal fusion the plaintiff was completely disabled from performing his duties as a fireman, and has had to give up such employment. His injuries are permanent in nature and he will be completely disabled from carrying out any gainful occupation. 21. The plaintiff's injuries were proximately caused by the negligence of the defendant Williams, its agents and servants acting in the course of their employment and within the scope of their authority. 24. That the negligence of each of the defendants herein complained of concurred and jointly cooperated to cause and did cause directly and proximately the injuries and damage to petitioner herein complained of. 25. At the time of the injury to the plaintiff he was acting in an emergency, in an effort to protect the property of all the defendants from destruction by fire, and under said circumstances was exercising due care for his own safety.
Williams Construction Company is charged with negligence in the leaving of the manhole in a dangerous condition, in causing the first fire, in causing the second fire, and in not preventing the second fire. Such charges are made on the theory of respondeat superior. Moss Construction Company is charged only with leaving the excavation in the dangerous condition and not covering it and in not giving warning of it. No negligence as to the first or second fire is charged to Moss. The Carpenter Plumbing Company is charged with negligence in starting both fires, etc.
The court did not err in sustaining the general demurrers of each of the defendants.
1. The plaintiff occupied the status of a licensee. Todd v. Armour & Co., 44 Ga. App. 609
(162 S. E. 394). We are requested to overrule this case as being outmoded and the enunciation of an inhumane rule. We think the Todd decision is right. The rule is not based on the idea that a fireman is an inferior person who is not entitled to the same protection as other citizens invited upon premises by owners or others having control thereof. The rule is based on sound public policy. In the first place the right of a fireman to go upon premises to extinguish a fire is based on the permission of the law and not an invitation of the owner or occupier even if the owner or occupier turns in the alarm. Such a permission is one which the occupier or owner may not deny. The basic reason for the rule is that it is impossible to forecast the precise place where or time when the fireman's duties may call him, and to require an owner or occupier of premises to exercise at all times the high degree of care owed to an invitee in order to guard against so remote and unpredictable an injury would be an intolerable burden which it is not in the best interest of society to impose. Anderson v. Cinnamon, 365 Missouri 304 (282 S. W. 2d 445, 55 A.L.R. 2d 516). See 13 A.L.R. 638; 141 A.L.R. 580; Prosser on Torts, p. 629; 38 Am. Jur. 785, 125. The factual situation in the case of Cooper v. Anderson, 96 Ga. App. 800
(101 S. E. 2d 770) and 214 Ga. 164
(104 S. E. 2d 90) is in no way analagous to that in this case.
2. There was no duty on the defendants to keep the premises up to any given standard of safety except that they must not contain pitfalls, mantraps and things of that kind. Georgia Power Co. v. Deese, 78 Ga. App. 704, 709 (51 S. E. 2d 724); Central of Georgia Ry. Co. v. Ledbetter, 46 Ga. App. 500, 504 (168 S. E. 81); Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 153, 155 (178 S. E. 451); McCall v. McCallie, 48 Ga. App. 99 (9) (171 S. E. 843); Cook v. Southern Ry. Co., 53 Ga. App. 723, 726 (187 S. E. 274); Cobb v. First Nat. Bank of Atlanta, 58 Ga. App. 160, 164 (198 S. E. 111); Bowers v. Texas Co., 65 Ga. App. 874 (16 S. E. 2d 765); Leach v. Inman, 63 Ga. App. 790 (1) (12 S. E. 2d 103); Greenfield v. Watson, 54 Ga. App. 9 (187 S. E. 183). No mantrap or concealed peril is alleged except by unfounded conclusion. There were no roads, streets, avenues, sidewalks or trails in the vicinity of the alleged excavation. The opening in the manhole was not alleged to have been concealed by the concrete blocks, ripped boards and other building debris lying about it. The petition shows that the excavation and manhole was concealed from sight solely by the darkness of the night. This is not wanton conduct nor a mantrap. Todd v. Armour & Co., 44 Ga. App. 609, supra; Reardon v. Thompson, 149 Mass. 267 (21 N. E. 369); 38 Am. Jur. 768, 105, n. 15; Sherman v. Maine C. R. Co., 110 Me. 228 (85 Atl. 755, 43 L.R.A. (NS) 1134); Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240 (97 N. E. 497, 38 L.R.A. (NS) 395 (2)). In addition the defendants would not be liable for anything but affirmative acts amounting to wilfulness. Leach v. Inman, 63 Ga. App. 790 (2, 4), supra; Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 153, supra; 49 A.L.R. 795; 156 A.L.R. 1236; Atlantic Steel Co. v. Cleaton, 52 Ga. App. 502, 506 (183 S. E. 827).
3. The Williams and Moss companies had a right to act as they did on the premises. There was a multiple building project, unfinished, in process of construction. Sewer ditches were dug from building to building, obvious and generally known to exist. No duty was owed to the public who were not invited upon the premises. It was not normally to be anticipated that any warnings or safeguards as to the ditches and unfinished construction would be required to protect anyone at night. There was no negligence alleged as to Williams and Moss Construction Companies in so far as the manhole excavation is concerned.
4. If Williams was negligent in not preventing the second fire which was the occasion for plaintiff's presence on the premises at the time he was injured such negligence was not the proximate cause of the injuries even if leaving the excavation was negligence. It was held in Georgia R. & Bkg. Co. v. Konkle, 36 Ga. App. 569 (137 S. E. 113) that the negligence of the railroad in causing a fire was not the proximate cause of a fireman's death due to a defective condition of the floor of the burning building. The same reasoning applies to the negligence charged to the Fred Carpenter Plumbing Company. The digging and leaving the excavation unguarded was not negligence or wantonness. Moss Construction Company is not charged with any other negligence. Since it is not charged with actionable misconduct the demurrer as to it was properly sustained.
5. The petition alleged that there were alternate patches of light and shadow surrounding the burning building and that the plaintiff had been looking toward the fire and flame in building Number 98 and that his nighttime vision had been affected thereby in such a manner that he could not distinguish between the earth and an opening therein in the shadows. Bridger v. Gresham, 111 Ga. 814
(35 S. E. 677); Mattox v. Atlanta Enterprises, 91 Ga. App. 847
(87 S. E. 2d 432). It follows that the plaintiff's injuries were due to accident or his own negligence.
Moss Construction Company was not shown by the allegations of the petition to be negligent as to the plaintiff. The petition stated no cause of action against it. There was no negligence or wanton misconduct alleged against Williams Construction Company or Fred Carpenter Plumbing Company which was the proximate cause of plaintiff's injuries. The court correctly sustained the defendants' demurrers.
QUILLIAN, Judge, concurring specially. Though the majority opinion follows the earlier case of Todd v. Armour & Co., 44 Ga. App. 609 (162 S. E. 394) and the view that a fireman is a licensee when he enters upon the owner's premises to extinguish a fire is also supported by the weight of foreign authority, I cannot agree that under Georgia law that it is correct.
In the case of Anderson v. Cooper, 214 Ga. 164
, 167 (104 S. E. 2d 90) the Supreme Court held: "Therefore, since it is agreed that we are dealing with a plain and unambiguous statute, it is not necessary to search for any intention the legislature might have had in adopting it. It is only necessary to follow the words of the Code section. The applicants contend that it is clear that the injured child in this case is neither a 'customer nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises', and that, therefore, he is a licensee under Code 105-402. This argument completely overlooks the last half of the definition of a licensee, which is just as much a part of the definition as the first half, and the portion to which the courts have attached the greater significance. Even if it is admitted, for the purpose of discussion, that the child in question was in none of those classes listed in the above Code section, he is also not one who is permitted expressly or impliedly to go thereon merely for his own interest, convenience, or gratification.' Obviously this can not be ignored, and just as obviously, when it is considered, the injured child in this case is not included in the definition because the child did not go on the premises in question merely for his own 'interest, convenience, or gratification.' He did go on the premises for the benefit of the occupant and his father. It must be remembered that the section in question does not attempt to define an invitee, but simply says that one who fits the description contained therein, is a licensee -- and he must fit the entire description. Otherwise, he is something other than a licensee, and the court must look elsewhere to determine the status of such a person."
However, in deciding what constitutes ordinary care consideration must be given to the lawful use to which the premises are put and their normal condition at the time in question. Where an apartment house is being constructed it is necessary and usual during the progress of the construction that excavations be made to accommodate water mains, sewer lines, gas lines and for other purposes. That there be such excavations during the course of the building process or that they remain open is not unusual or negligent.