Elrod v. Ogles , 78 Ga. App. 376 ( 1948 )

1. The judgment of the trial court overruling the general demurrers is without error for the reasons assigned in division 1 of this decision.

2. The judgment of the trial court overruling a part of the special demurrers is without error for the reasons set out in division 1 of the decision herein, and the remainder of said special demurrers show no cause for reversal for the reasons set out in division 2 hereof.

DECIDED DECEMBER 4, 1948. REHEARING DENIED DECEMBER 15, 1948. The plaintiff in error, Mary N. Ogles, hereinafter referred to as the plaintiff, brought an action for damages in the Superior Court of Whitfield County against Clabe Elrod, hereinafter referred to as the defendant.

The petition alleges facts substantially as follows: that the defendant has injured and damaged her in the sum of $25,000; that the defendant employed her husband, James Ralph Ogles, to dig a well on his building lot about 4 miles east of Dalton; that the plaintiff's husband was employed as a laborer, the exact terms of his employment being unknown to the plaintiff, but that her said husband was an employee of the defendant; that the location of the well was about 20 feet from a tank containing butane gas, which had been installed on said premises by the defendant; that a pipe conveying butane gas ran within about 4 feet of the well; that the butane-gas tank and pipe had been installed by employees of the defendant about two weeks before the plaintiff's husband was employed to dig the well; that said tank and pipe were second-hand equipment, and the pipe was defective in that through rust or decay it had become weakened and was unfit for transmission of butane gas, which is a deadly gas, destructive of human life when inhaled, and likely to explode under conditions such as existed in the employment of the plaintiff's husband; that a hole developed in said pipe, because of its defective condition, at a point where it ran within 4 feet of the well; that the plaintiff's husband had no knowledge of the location of the pipe because it was buried in the ground; that he had no knowledge of the defective condition of the pipe; that he had no knowledge of the presence of such gas in the well, nor did he know how to detect it there; that the defendant, having installed the butane-gas tank on his premises, knew or ought to have known of its defective condition in the exercise of ordinary care; that the digging of the well had been started by an employee of the defendant, other than the plaintiff's husband, who had dug the well to a depth of some 7 or 8 feet; that on June 18, 1947, the plaintiff's husband, after having been employed by and working for the defendant at the digging of the well for approximately 1 and 1/2 days, had dug it to a depth of approximately 17 feet; that at this time a hole or leak existed in the pipe containing the butane gas at a point approximately 4 feet from the well, and the gas had leaked into the well where the plaintiff's husband was working; that on this date the butane gas that had accumulated in the well, without the knowledge of the plaintiff's husband, exploded, the cause of the explosion being unknown to the plaintiff; that in said explosion the plaintiff's husband sustained injuries on account of which he died the next day; that at the time of his death the plaintiff's husband was in the exercise of ordinary care for his own safety; that he could not have by the exercise of care avoided his injury and death; that his death occurred as the result of acts of negligence of the defendant as alleged in paragraph 7 of the petition, as follows: "A — In failing to exercise ordinary care in the selection of his employees who installed said butane gas and pipe and in selecting employees for this purpose who had had no experience in the installation of such equipment. B — In failing to have said equipment inspected by a competent person to determine its suitability for the uses intended prior to its installation. C — In purchasing and installing used and defective equipment unsuited to the uses for which it was intended and in utilizing such equipment for the storage and transmission of a deadly gas dangerous to human life. D — In failing to warn petitioner's husband of the location of said gas line within 4 feet of said well and of its defective condition. E — In failing to provide your petitioner's husband with a safe place in which to work and in employing him to work in a place which was unsafe, either within the defendant's knowledge or within knowledge that he could have acquired by the exercise of ordinary care. F — Through his said employees, Pink Woods and his son-in-law, who were not coemployees of petitioner's husband nor engaged with him about the same business in the installation of said butane-gas tank and pipe, and who were inexperienced in such work and negligently and carelessly installed the defective pipe from which the deadly butane gas could leak, as hereinbefore alleged."

By amendment the petition also alleged that the plaintiff's husband came onto the premises of the defendant by his express invitation for a lawful purpose, i. e. the digging of the defendant's well. The amendment goes on to allege the duty of the defendant under these circumstances to warn the plaintiff's husband of secret or concealed dangers of which he knew or ought to have known in the exercise of ordinary care; the amendment alleging that the defendant did know or ought to have known in the exercise of ordinary care the danger here, because he installed the tank and pipe line in the negligent and defective manner previously alleged.

The petition also alleges that her husband was 28 years of age, with a reasonable expectancy of 35.69 years, and that he was capable of earning during this expectancy the sum of $3000 per year.

The defendant interposed general and special demurrers to the petition. The grounds of the general demurrer are: that the petition sets forth no cause of action against the defendant; because the petition does not allege that the plaintiff's husband did not have equal means with the defendant of knowing of the gas being in the well; and that the petition fails to allege that the plaintiff's husband could not have discovered the existence of the gas prior to the explosion by the exercise of ordinary care.

The allegations of paragraph 6 of the petition are specially demurred to upon the ground that they are vague and indefinite. It is contended in this ground that the petition fails to allege how long the plaintiff's husband had been working before reaching the depth of 17 feet and at the time of the explosion. However, the petition does allege that he had been working for 1 1/2 days and had dug the well from a depth of 7 or 8 feet to a depth of approximately 17 feet. This ground of the special demurrer also contends that no facts are alleged to show why the plaintiff's husband did not have equal, if not better, means of knowing of the presence of the gas in said well prior to the explosion than did the defendant.

Subsection A of paragraph 7 of the petition is specially demurred to because it charges the defendant with negligence in his selection of employees with no experience to install the butane-gas tank and pipe; contending that the defendant owed the plaintiff's husband no duty to select competent employees to perform this work, it being wholly disconnected from the work being performed by the plaintiff's husband at the time of his death.

Subsection B of paragraph 7 is specially demurred to; it being contended that the defendant owed no duty to the plaintiff's husband to have the butane-gas equipment inspected to determine its suitability for the use intended, said equipment being wholly disconnected from the purposes of the employment of the plaintiff's husband.

Subsection C of paragraph 7 is specially demurred to upon the same grounds as were subsections A and B thereof.

Subsection D of paragraph 7 is specially demurred to, because it is contended that the defendant owed the plaintiff's husband no duty to warn him of the location of the gas line and its defective condition; that no facts are alleged to show any connection between the location and condition of the gas line with the purpose of the employment of the plaintiff's husband; and that no facts are alleged to show that the plaintiff's husband did not have equal means with the defendant of knowing of the alleged defective condition of the line.

Subsection E of paragraph 7 of the petition is specially demurred to: because it is contended that, under the allegations of the petition, there is no duty on the part of the defendant to furnish the plaintiff's husband with a safe place to work; because no facts are alleged to show that the plaintiff's husband did not have equal means with the defendant of knowing of the alleged unsafe place in which he was to work; and because no facts are alleged to show whether the plaintiff's deceased husband could not have acquired knowledge of the presence of the gas in the well prior to the explosion, by the exercise of ordinary care.

The allegation of the plaintiff that "her husband was in the exercise of ordinary care for his own safety, and could not have by the exercise of ordinary care avoided his injury and death, and that his death occurred as the result of acts of negligence of the defendant," as hereinbefore detailed, is specially demurred to as being mere conclusions of the pleader without stating any facts upon which said conclusions are based; that it is not alleged what the plaintiff's husband did in the exercise of ordinary care for his own safety to discover the presence of gas in the well; that no facts are alleged to show that he could not have by the exercise of ordinary care discovered the presence of gas in the well prior to its explosion; and that no facts are alleged to show that the plaintiff's husband did not have equal means with the defendant of knowing of the presence of the gas in the well and the unsafe condition of the well prior to the explosion of the gas in the well.

The trial court entered judgment overruling the general and special demurrers on each and every ground, and this judgment is assigned as error. An action was previously brought by the plaintiff against the defendant based on the same facts alleged in the petition herein. Upon the trial a nonsuit was granted. Thereafter the defendant filed a motion to vacate the nonsuit and reinstate the case. No brief of evidence accompanied this motion. The trial court granted the motion and reinstated the case. This judgment was excepted to and the case reversed. See Elrod v. Ogles, 77 Ga. App. 106 (47 S.E.2d, 672).

Thereafter this action was brought and a motion made to dismiss said case because of no allegation in the petition which would show that the plaintiff had any evidence additional to that offered on the trial of the former case in which a nonsuit had been granted. The defendant also filed a plea of res judicata, and the plaintiff moved to strike the same. The writ of error herein discloses exceptions to the judgment of the trial court overruling the motion of the defendant to dismiss the case, and the judgment sustaining the plaintiff's motion to strike the defendant's plea of res judicata. The exceptions to the judgment sustaining the motion of the plaintiff to strike the plea of res judicata are expressly abandoned by the defendant, his counsel in their brief requesting that these exceptions operate as exceptions pendente lite to that judgment. Under the authority ofJohnson v. Henry Co., 178 Ga. 542, (174 S.E. 140),Brock v. Tallapoosa, 19 Ga. App. 793 (92 S.E. 289), andW. T. Rawleigh Co. v. Forbes, 76 Ga. App. 118 (44 S.E.2d 692), leave is granted to the plaintiff in error to treat the official copy of the bill of exceptions filed in the office of the clerk of the trial court as exceptions pendente lite as to the judgment sustaining the motion of the plaintiff to strike the plea of res judicata of the defendant.

The other judgment, excepting to the overruling of the motion of the defendant to dismiss the petition, is treated as abandoned, because the brief of counsel for the defendant contains a statement as follows: "There are two questions to be determined under the bill of exceptions in this case; the first question being, do the allegations of the plaintiff's petition set forth a cause of action? Second, did the court rule correctly on the special demurrers interposed by the defendant to plaintiff's petition?" Since this statement refers only to the judgment of the trial court overruling the general and special demurrers of the defendant to the petition, and since throughout their brief counsel for the defendant argues only in support of their contentions that the trial judge erred in overruling said demurrers, the other judgments are treated by this court as hereinbefore outlined, and the case is here considered only on the petition and the demurrers.

1. It being alleged in the petition that the plaintiff's husband was an employee of the defendant, the relationship of master and servant existed; and in such case, in order for the petition to withstand general demurrer, it must allege facts which show that the master knew, or in the exercise of ordinary care should have known, of the danger attending the servant's employment. The petition must also allege facts which show that the servant did not know of these dangers; that he did not have equal means with the master of learning of this danger, and by the exercise of ordinary care could not have discovered the same. See Code, § 66-303.

Construing the pleadings most strongly against the pleader, an allegation that the master knew, or in the exercise of ordinary care should have known of the danger incident to the servant's employment, is equivalent to a charge of implied notice rather than actual knowledge. See Babcock Bros. Lumber Co. v.Johnson, 120 Ga. 1030 (6) (48 S.E. 438); Thomas v. Ga.Granite Co., 140 Ga. 459, 460 (79 S.E. 130). Where implied notice on the part of the master is relied upon, rather than actual knowledge, the sufficiency thereof depends upon the pleaded allegations relied upon to show it. See Fraser v.Smith Kelly Co., 136 Ga. 18 (70 S.E. 792).

An amendment to the petition alleges facts which would make the plaintiff's husband an invitee. However, that is what he really was any way, as the duty of the master to use ordinary care to keep his premises safe so that his servants may perform their duties in safety is but a phase of the ancient recognized doctrine of the common law codified as § 105-401 of our Code, which provides that, "Where the owner or occupier of land, by express or implied invitation induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and the approaches safe." See Williamson v. Kidd, 65 Ga. App. 285 (15 S.E.2d 801);Seaboard Air-Line Ry. v. Chapman, 4 Ga. App. 706 (62 S.E. 488). Neither in the master and servant cases nor in the invitee cases has the master or owner been held liable, where he did not know of the danger and where he was not lacking in the exercise of ordinary diligence in discovering the same. See Cuthbert v.Schofield, 35 Ga. App. 443 (133 S.E. 303); Williamson v.Kidd, supra; Babcock Bros. Lumber Co. v. Johnson, supra;Thomas v. Ga. Granite Co., supra; Fraser v. Smith KellyCo., supra.

This does not mean, however, that the master or owner must have either actual knowledge or implied notice of the result of the danger. As in the instant case, it is not necessary in order for the petition to state a cause of action that it allege that the master or owner had either actual knowledge or implied notice that the butane gas was in the well in which the servant or invitee was working. The petition alleges that he did know that butane gas was installed on his premises; that he knew the tank and pipe line were of second-hand material; that he knew the gas line was buried at a point on his property within 4 feet of the well, where he knew the servant or invitee would be at work; and that he knew the men whom he procured to install the tank and pipe were unskilled in this type of work. He is chargeable with the knowledge that the pipe line was defective, in that through rust and decay it had become weakened and was unfit for the transmission of butane gas and accordingly dangerous. Whether these conditions, his knowledge of their existence, and his failure to warn the servant or invitee of them, amount to the lack of exercise of ordinary care, is a jury question. SeeAtlanta, Birmingham Coast R. Co. v. King, 55 Ga. App. 1 (4) (189 S.E. 580). The latter part of § 66-303 of the Code provides as follows: "It must also appear that the servant injured did not know and had not equal means of knowing such facts and by the exercise of ordinary care could not have known thereof." See Holland v. Durham Coal Coke Co., 131 Ga. 715 (63 S.E. 290); Ludd v. Wilkins, 118 Ga. 525 (45 S.E. 429).

According to the allegations of the petition in the instant case, the servant did not know of the installation of the butane gas on the premises; he did not know that the tank and pipe were of second-hand material; he did not know that the pipe was defective from rust and decay and unfit for the transmission of butane gas; he did not know that this defective line was buried within 4 feet of the well in which he was working; and he did not know that the men who installed that equipment on the premises were unskilled in this particular type of work. It is true that neither the plaintiff's husband nor the defendant knew the gas was in the well. It is also true the plaintiff's husband had the better opportunity of discovering the presence of the gas in the well, but the defendant had far the better opportunity of knowing and realizing the likelihood of the gas getting into the well. Since gas can neither be felt nor seen, the plaintiff's husband would have been unlikely to have learned of its presence in the well prior to the explosion, unless he smelled it. Had he smelled gas and had no knowledge that the same was installed upon the premises, he might have mistaken its odor, but had the defendant warned him of the installation of the gas within 4 feet of the well he was digging, in a rusty and defective pipe line, he would have doubtless been on guard and sensitive to the odor of gas. Whether the plaintiff's husband was in the exercise of ordinary care in failing to discover the presence of gas in the well prior to the explosion, is therefore also a jury question. SeeAtlanta, Birmingham Coast R. Co. v. King, supra.

The judgment of the trial court overruling the general demurrers to the petition is without error.

2(a) The special demurrers, to which reference hereinbefore has been made, to paragraph 6, and subsections C, D, and E of paragraph 7, are without merit for the reasons assigned in the 1st division of this opinion.

(b) The selection of incompetent servants is such an act of negligence as will authorize a cause of action in favor of any person who is injured as the direct and proximate result thereof. See Code, § 66-301; Renfroe v. Fouche, 26 Ga. App. 340 (3)

(106 S.E. 303); Estridge v. Hanna, 54 Ga. App. 817 (2) (189 S.E. 364).

No invariable rule can be laid down whereby it can be declared that a master is chargeable with or relieved of the duty of inspecting premises, the circumstances of each case determining this question. See Williams v. Garbutt Lumber Co., 132 Ga. 221 (64 S.E. 65); Williamson v. Kidd, supra. In the instant case, whether failure to inspect the premises by the defendant amounts to the lack of the exercise of ordinary care, is a jury question. Therefore the special demurrers to subsections A and B of paragraph 7 are without merit.

(c) That part of the petition, where the plaintiff alleges that "her husband was in the exercise of ordinary care for his own safety and could not have by the exercise of ordinary care avoided his injury and death, and that his death occurred as the result of acts of negligence of the defendant," is not subject to the special demurrer interposed thereto because, while said allegation amounts to a mere conclusion of the pleader, ample facts are stated in the petition to authorize this inference. SeePacetti v. Central of Georgia Ry. Co., 6 Ga. App. 97 (64 S.E. 302).

The judgment of the trial court, overruling the general and special demurrers to the petition in the instant case, is without error.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.