Kuhr v. Frizzelle , 74 Ga. App. 524 ( 1946 )

Since the averments contained in a petition must, for the purpose of determining a demurrer, be taken as true, and since questions of negligence and what constitutes the proximate cause of the damages sustained are peculiarly within the province of the jury, this court will not solve such questions on demurrer except where such questions are palpably clear, as where the petition shows on its face that the negligence charged could not or did not as a matter of law cause the damages complained of; and since we can not say as a matter of law that the defendants' alleged negligence in failing to insulated the pipes could not or did not proximately cause the plaintiff damage, the court did not err in overruling the demurrer. Savannah Electric Power Co. v. Nance, 31 Ga. App. 632 (121 S.E. 690); Bass v. Southern Enterprises Inc., 32 Ga. App. 399 (123 S.E. 753); Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 260 (58 S.E. 249); Trammell v. Columbus R. Co., 9 Ga. App. 98 (70 S.E. 892); Columbus Power Co. v. Puckett, 24 Ga. App. 390 (100 S.E. 800). Nor can this court take judicial notice of the nature and construction of the furnace in this case so as to say as a matter of law that the fire could not have occurred as alleged.

Judgment affirmed. Sutton. P. J., and Parker, J.,concur.

DECIDED NOVEMBER 15, 1946. William H. Frizzelle, brought an action for damages against Paul T. Kuhr and Raymond Kuhr, as partners trading under the name of Kuhr Brothers. The allegations of the petition were substantially these: The plaintiff contracted with the defendants to furnish and install in the basement of his home a hot-air furnace together with the pipes leading from the furnace to the various outlets throughout the house; the defendants by and through their agents, servants, and employees installed the furnace and pipes during the first two weeks of December, 1945. In making the installation the defendants by and through their agents, servants, and employees, acting within the scope of their employment, used as insulation around the hot-air pipes a material which was not fireproof. On the morning of December 9, 1945, following the installation of the furnace, the plaintiff built a fire in the furnace and then went with his family to Sunday School; during the plaintiff's absence the house caught fire from the furnace, due solely to the defendant's negligence in failing to insulate the pipes with a fireproof material, and as a proximate result of such negligence in failing to insulate the pipes properly, the plaintiff suffered certain enumerated damages. The defendants filed no special demurrers but demurred generally to the petition as setting for the no cause of action, for the reason, as counsel for the defendants says in his brief, that it did not appear from the petition that the alleged negligence of the defendants was the proximate cause of the damage sustained by the plaintiff. The court overruled the demurrer and the defendants excepted.