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Lawskills.com Georgia Caselaw
HARVEY v. ZELL.
MATHIS v. ZELL.
BISHOP v. ZELL.
NOLAN v. ZELL.
NOLAN v. ZELL.
34306.
34307.
34308.
34309.
34310.
Action for damages; from Brunswick City Court-- Judge Little. August 9, 1952.
CARLISLE, J.
Each of the petitions stated a cause of action for the alleged negligence of the defendant, as a distributor of butane gas, in filling a gas tank beyond the capacity fixed by the rules and regulations of the State Fire Marshal, and in filling the tank at all when it was in an unsafe condition--namely, within less than ten feet of the residence, contrary to the rules and regulations of the Fire Marshal--and the trial court erred in sustaining the general demurrers to the petitions.
R. M. Harvey brought an action for enumerated damages to his real and personal property against Carley Zell, doing business as Brunswick Gas & Fuel Company. The material allegations of his petition, as amended, are substantially as follows: The defendant sells and delivers to the plaintiff certain liquefied petroleum gas commonly known as butane gas. The gas is delivered into the plaintiff's underground tank by the defendant, his servants, agents, and employees, from a tank located on a truck of the defendant by means of a rubber hose connecting the two tanks and a pump located on the defendant's truck. Sometime prior to December 28, 1951, the plaintiff had installed and maintained at his home a certain "101-Lb.-W.-P.-Underground, 148-gallon, U-69 tank," for the reception of butane gas. The tank was buried in the ground at or near the plaintiff's residence, except that a portion of the tank through which the gas was received, and a portion of the tank from which tubing was run to stoves and heaters inside the plaintiff's house, was above the ground. This tank was equipped with a "pop valve" to permit the escape of gas from the tank if and when the tank should be filled beyond its normal capacity of 120 gallons of liquefied petroleum gas. The tank was buried about 24 inches beneath the surface of the ground and was located about 5 feet from the entrance of the plaintiff's house. The pop valve is located in the dome of the tank and connected with the tank by a pipe extending from the top of the dome. When the tank is filled beyond its normal capacity, the pop valve permits the flow of gas into the dome from which it escapes into the air; and, in the present case, it escaped into the air and under the plaintiff's house and into the walls of the house. All the connections and piping, running from the tank to the heaters and stoves inside the plaintiff's house, were properly installed and free from leaks. On December 28, 1951, the defendant, through his agent and employee, V. W. Gordy, came to the plaintiff's house for the purpose of, and was engaged in, conveying gas from the defendant's tank truck to the plaintiff's tank. The gas had a specific gravity of .554 at 60 degrees Fahrenheit. Section B-11 of the rules of the office of the Fire Marshal of the State of Georgia requires that a tank such as the plaintiff's should not be filled beyond 48 percent of the water capacity of the tank with such gas, which would limit the tank to 120 gallons of liquefied petroleum gas. In the filling process the defendant's agent and servant filled the tank to 93 percent of its
water capacity with gas, or until the tank contained 137 gallons of gas. When the capacity of 120 gallons was reached the pop valve on the tank opened, and the gas from the tank spread beneath and into the walls of the plaintiff's house. One of the heaters in the house was burning, and the pilot lights on the cook stoves were burning. Soon after the pop valve began discharging gas into the air, the floating gas became ignited and there was a terrific explosion, which was due primarily to the negligence of the defendant's servant, agent, and employee in violating section B-11 of the rules and regulations of the Fire Marshal of the State of Georgia. This section of the rule provides in part: "B-11 Filling densities. (a) The 'filling density' is defined as the percent ratio of the weight of the gas in a container to the weight of water the container will hold at 60 degrees F. The filling densities for storage containers used with systems embodied in Divisions II, III, IV, shall not exceed the ratios following: Maximum Permitted Filling density: Specific Gravity at 60 degrees: .553-560 . . . Underground containers: All capacities: 52% [of Total Water Capacity] (b) Any container including mobile cargo tanks regardless of size or construction, shipped under I. C. C. jurisdiction shall be filled according to I. C. C. requirement." The said explosion resulted when the said gas came in contact with the lighted heater, the pilot light of the refrigerator, the pilot light of the two stoves, or from the exhaust from the defendant's truck. From which of these sources, the plaintiff, from lack of knowledge, is unable to say. The plaintiff's tank, into which the gas was being pumped, was at the time located within 5 feet of his house and was therefore in violation of section B-5 paragraph (a) of the State rules and regulations, with which rule the plaintiff was not familiar, as it had never been brought to his attention; but the defendant was familiar with this rule, and, notwithstanding this knowledge on the part of his servants, agents, and employees, they continued to service the improperly located tank; and the plaintiff charges such conduct on the part of the defendant's servants, agents, and employees as gross negligence. The material provisions of this rule are: "B-5 Location of Containers and Regulating Equipment: (a) Containers and first stage regulating equipment shall be located outside of buildings other than those especially provided for this purpose. Except as herein provided, each individual container shall be located with respect to nearest building or group of buildings or line of adjoining property which may be built on in accordance with the following table." The table referred to provides that tanks of a water capacity of from less than 125 gallons to 500 gallons, if underground, shall be at a minimum distance of 10 feet. The defendant was negligent in that by and through his servant, agent, and employee, V. W. Gordy, he did convey gas into the plaintiff's tank, knowing that it was located less than 10 feet from the plaintiff's house, and such action was in violation of section B-18 of the rules of the Fire Marshal, which reads as follows: "Filling Unapproved Dispensing or Storage Tanks Prohibited. No person, firm, or corporation shall introduce liquefied petroleum gas into a dispensing or storage tank in this State that such dispensing or storage tank or piping is known to be in an unsafe condition."
The plaintiff charges that the destruction of his house was due to the gross negligence of the defendant, his servants, agents, and employees: "(a) In continuing to service . . . the plaintiff's tank with L. P. gas having a gravity of .554 at 60 degrees Fahrenheit while said tank was located in close proximity to the building in violation of Section B-5, paragraph (a) of the State rules and regulations for the handling of said gas. (b) In pumping into said tank more than 48% (52%?) of the water capacity; that is to say, more than 120 gallons of L. P. gas, in violation of Section B-11 of the State rules and regulations for the handling of L. P. gas."
Upon the defendant's renewal of his general and special demurrers to the petition as amended, the trial court sustained the general demurrer and dismissed the petition. Error is assigned upon that judgment.
As a result of the explosion described above, Mr. and Mrs. W. C. Nolan, tenants of Harvey, each sustained personal injuries, for which each brought suit against the defendant Zell; Charles Mathis, a guest of the Nolans, was also injured and brought suit against the defendant; and Mrs. Dorothy Bishop, another of Harvey's tenants, was injured and brought suit. The allegations of the petitions of these latter plaintiffs are essentially the same as those of the petition in the Harvey case, save that in the latter petitions it is alleged that the tank was equipped with a meter or gauge for measuring the quantity of gas in the tank, and it is alleged that the defendant was negligent in not having automatic cut-off valves (on his truck) so that they would close when the tank was filled to capacity.
All five of the cases were considered together in the trial court, and the same order, sustaining the general demurrer and dismissing the petition, was entered in each of the cases, and under the view which we take one decision will be determinative of all and they are considered here together.
1. (a) Questions of negligence and diligence, including contributory and comparative negligence, and of proximate cause, are peculiarly for the determination of the jury and are not to be solved by the court on demurrer except in clear and indisputable cases. Columbus R. Co. v. Moore, 29 Ga. App. 79 (113 S. E. 820); Martin v. McAfee, 31 Ga. App. 690 (2) (122 S. E. 71); Blair v. Fulton Bakery, 68 Ga. App. 879, 883 (24 S. E. 2d, 598).
(b) In an action for a tort the plaintiff need only allege the factum of a duty owed by the defendant to the plaintiff, a violation of that duty by the defendant, and that damages resulted therefrom in order for the petition to withstand a general demurrer. Vickers v. Georgia Power Co., 79 Ga. App. 456 (54 S. E. 2d, 152); Parsons v. Foshee, 80 Ga. App. 127 (55 S. E. 2d, 386).
(c) In an action founded upon negligence, mere general averments of negligence are sufficient against general demurrer. Hudgins v. Coca Cola Bottling Co., 122 Ga. 695 (50 S. E. 974).
(d) The simplest test of the sufficiency of a petition against general demurrer is whether the defendant can admit all that is alleged and still escape liability. Georgia R. & Bkg. Co. v. Rayford, 115 Ga. 937 (42 S. E. 234); Pullman Palace Car Co. v. Martin, 92 Ga. 161 (18 S. E. 364).
Under an application of the foregoing principles of law, we hold that the petition, even when it is construed most strongly against the pleader--as it must be on demurrer--stated a cause of action, and the trial court erred in sustaining the general demurrer thereto.
Upon final analysis, the salient allegations of the petition are: that the defendant, through his employee, was negligent in servicing the plaintiff's gas tank while it was within 5 feet of his house, in violation of section B-5 (a) of the Rules and Regulations of the Georgia Safety Fire Commissioner, promulgated by authority of the Liquefied Petroleum Safety Act (Ga. L. 1949, p. 1128 et seq.), which requires that tanks of the description used by the plaintiff must be located a minimum distance of 10 feet from the nearest building; that, being located as it was, the plaintiff's tank was unsafe, and the defendants filling it was in violation of section B-18 of the rules and regulations indicated above; and that, in violation of section B-11 of those same rules and regulations, the defendant filled the plaintiff's tank to 93 percent of its water capacity, when, under the provisions of section B-11, the tank of the description used by the plaintiff should have not been filled beyond 48 (53?) percent of its water capacity; and that, through these acts of negligence on the part of the defendant, the butane gas with which the tank was being filled overflowed the tank and escaped through the "pop valve," floated under and into the walls of the plaintiff's house, where it became ignited and exploded, causing the enumerated damages alleged. The plaintiff has characterized these acts of the defendant as gross negligence.
Taking the allegations of the petition as true, as against the general demurrer, the defendant was negligent in filling the plaintiff's tank beyond the capacity fixed by the rules and regulations of the Fire Marshal; was negligent in filling the tank at all when it was in an unsafe condition--namely, when it was located within 5 feet of the plaintiff's house, whereas the rules and regulations of the Fire Marshal require that tanks of the description used by the plaintiff should not be located nearer than 10 feet from the nearest building. Whether these acts of negligence charged were the proximate cause of the explosion and the plaintiff's damage are questions for the determination of a jury. The fact that the plaintiff himself located the tank too near his house, and the fact that the defendant was unable to determine the quantity of gas in the tank, either at the beginning or at any stage of the filling operation, do not, we think, tend to exonerate the defendant, but rather were factors which should have put the defendant on guard against the dangers attendant upon attempting to fill such a tank. The defendant is the purveyor of the dangerous agency, and there was a duty upon him to exercise at least the standard of care established by the rules and regulations of the Fire Marshal. The plaintiff alleges that he did not; and, under the circumstances, we think that the trial court erred, as we have said, in holding that the petition did not state a cause of action.
The Liquefied Petroleum Safety Act authorized the Insurance Commissioner "to prescribe uniform regulations for the distribution, sale, and use of liquefied petroleum gases," but the rules promulgated, which are specifically in question here, are regulatory of the vendor and distributor, not the consumer. These duties were imposed upon the vendor and distributor, not upon the consumer.
The fact that the plaintiff characterized the alleged acts of negligence as gross negligence we think is immaterial on this determination of the sufficiency of the petition as against general demurrer.
Oliver, Oliver & Davis, contra.
W. C. Hodges, Paul E. Caswell, for plaintiffs in error.
DECIDED NOVEMBER 10, 1952--REHEARING DENIED NOVEMBER 25, 1952.
Saturday May 23 04:35 EDT


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