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Action for damages. Before Judge Renfroe. Bulloch Superior Court. February 27, 1954.
Axel Stratton sued Liberty Homes, Inc., and Central Georgia Gas Company for damages allegedly caused by the defendants' negligence. The petition alleges in substance: that on or about September 22, 1953, the plaintiff and his wife rented from the defendant Liberty Homes, Inc., and went in to actual possession of, a house located in Ludowici, Georgia; the house when built by the defendant Liberty Homes, Inc., was equipped with a butane-gas floor furnace connected to and served by a central butane-gas storage tank; the fuel pipe conducting the butane gas from the central tank to the floor furnace was equipped with a standard gas meter, which was easily accessible to the defendants and other parties having occasion to observe same; the said fuel pipe was laid under the ground from the central tank to the point where it entered said house, at which point it extended out of the ground and was affixed to the foundation wall of the house for a distance of approximately two feet, where the pipe penetrated the foundation wall at a point approximately two feet above the surface of the ground; the pipe then extended under the house to a butane-gas floor furnace located approximately ten feet from the point where the pipe penetrated the foundation wall; said pipe was attached to the underside of the floor joists by the use of clamps; the pipe was copper and was bright of color; subsequently to the time of completion of the house and the installation of the gas system described, the defendant landlord employed a person to install a tee-joint leading from the furnace fuel line at a point between its entry through the foundation wall and the furnace and running to the kitchen, located approximately eight feet from the tee-joint; the person so hired was not licensed by the State Fire Marshal or his authority to install butane-gas appliances, and thus such installation was in violation of State law; such installation was made for the benefit of a prior tenant who had a butane cooking stove in the kitchen of said house; the prior tenant, upon vacating said house, notified the landlord's agents of his intention to disconnect his gas range and was instructed by the agents to remove the range, which the tenant did; at the time the range was disconnected, the gas was turned off at the meter attached to the house, thereby completely shutting off the entire flow of gas into the house; the removal of the range left the gas line in the kitchen open-ended, which condition existed for approximately two months and between the dates of September 22 and September 27, 1953; the defendant gas company is engaged in the sale and installation of butane or bottled gas used for heating and cooking purposes; the gas company sold such gas to the tenants of Liberty Homes, Inc., and serviced said butane-gas equipment, including the house rented to the plaintiff; on September 26, 1953, the plaintiff and his wife had locked their residence and had gone to Savannah, Georgia; at about 2 p. m. on that day, the gas company through its agent went upon the premises rented by the plaintiff without permission of the plaintiff for the purpose of turning on the gas and igniting the floor furnace preparatory to cold weather; said agent crawled underneath the house through an aperture in the foundation wall and ignited a pilot light in the floor furnace; in crawling to the floor furnace the agent crawled directly beneath the tee-joint hereinbefore mentioned and within a very few inches thereof, and saw, or by the exercise of ordinary care could have seen, the tee; before the agent lit the pilot light he opened the valve at the central tank and at the meter and permitted gas to flow through the gas system of the house and into the open-ended pipe and thus into the kitchen and other portions of the house; the gas used in said system was sold and delivered by the defendant gas company; the gas was not mixed with an odorizing agent, which would have aided the plaintiff in detecting the escaping gas and failure so to use an agent was in violation of the Liquefied Petroleum Safety Act; the plaintiff and his wife returned home after the pilot light had been lighted and the system turned on, and failed to discover any escaping gas because of the absence of an odorizing agent; gas flowed through the open-ended pipe in the kitchen from the time it was turned on at about 2 p. m., September 26 until September 27, at approximately 5 a. m., when it suddenly and violently exploded by ignition from the pilot light, causing the enumerated injuries and damage.
The petition alleged the following specified acts of negligence against the defendant landlord: in employing an unlicensed person to install the line to the kitchen in violation of the law; in failing to instruct said person to attach a cut-off valve at the point where said gas line connected to the kitchen range; in failing to close or cap said open-ended pipe when the prior ten-ant notified the defendant landlord of the removal of the range, which failure was in violation of the law; in permitting the gas company to turn on the gas without first notifying the plaintiff of its intention to do so; in renting and leasing to the plaintiff a dwelling house in which was installed defective butane-gas equipment, when such defendant knew or in the exercise of ordinary care should have known of such defective installation; in failing to warn the plaintiff that the gas had been turned on, and that the gas would flow out of the open-ended pipe and permeate the dwelling, when such defendant knew or should have known that such would happen and that an explosion would result.
The petition alleges the following specific acts of negligence on the part of the gas company: in turning the gas into the dwelling without first having tested all outlets, in violation of the Liquefied Petroleum Safety Act; in failing to ascertain the point of termination of the pipe line installed to the kitchen when such defendant knew or should have known of its existence; in failing to inspect the gas meter after having turned on the gas, when to have done so would have disclosed to the gas company that gas was flowing through the meter faster than it ordinarily would have flowed to serve a pilot light, and such disclosure would have warned the company of escaping gas; in failing to test the flow of gas after the same had been turned on by the use of a manometer, when to have done so would disclose that gas was escaping; in failing to mix an odorizing agent in the gas, which agent would have warned the plaintiff of escaping, which failure constituted negligence per se; in turning on the gas without first ascertaining the wishes or desires of the plaintiff regarding the lighting of the floor furnace.
The defendant Liberty Homes, Inc., filed a general demurrer to the petition, which was overruled, and it excepts.
The mere fact that the installation of the gas line to the kitchen was performed by an unlicensed person did not render the defendant Liberty Homes, Inc., negligent. Flint Explosive Co v. Edwards, 84 Ga. App. 376, 391 (4) (66 S. E. 2d 368), and cases cited.
Assuming for the sake of argument that the defendant Liberty Homes, Inc., was negligent in the other respects alleged, we think that the negligence alleged against the gas company was an intervening efficient cause and was the sole proximate cause of the damages. The petition, properly construed, shows that the gas company turned on the gas without a request from or notice to either the plaintiff or the defendant landlord. While in the specifications of negligence as to the landlord the plaintiff alleges that it was negligent in permitting an agent of the gas company to turn the gas on without first notifying the plaintiff and was negligent in failing to warn the plaintiff that the gas had been turned on, etc., nowhere in the petition is it alleged that the landlord requested that the gas be turned on or had notice that it was to be turned on, and the allegations in the specifications are insufficient to charge the landlord with having made such a request or with having such notice.
A company which produces and furnishes gas is bound to use such skill and diligence in its operations as is proportionate to the delicacy, difficulty, and nature of that particular business. Chisholm v. Atlanta Gas Light Co., 57 Ga. 28 (1); Christo v. Macon Gas Co., 18 Ga. App. 454 (89 S. E. 532). We do not believe that the defendant Liberty Homes, Inc., could have reasonably foreseen that the gas company, charged with such a duty, would, without the request of or notice to either the landlord or tenant, turn on the gas in the negligent manner alleged. See Peggy Ann of Georgia v. Scoggins, 86 Ga. App. 109 (71 S. E. 2d 89); Wright Contracting Co. v. Waller, 89 Ga. App. 827 (1b) (81 S. E. 2d 541).
The court erred in overruling the general demurrer of the defendant Liberty Homes, Inc.
Ronald F. Adams, Walker D. Burke, Pierce & Ranitz, contra.
Neville & Neville, Oliver, Oliver & Davis, for plaintiff in error.
Saturday May 23 03:42 EDT

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