Caldwell v. Morrison ( 1954 )

82 S.E.2d 86 (1954) 240 N.C. 324

CALDWELL
v.
MORRISON et al.

No. 525.

Supreme Court of North Carolina.

May 19, 1954.

Bell, Horn, Bradley & Gebhardt, Charlotte, for plaintiff appellee.

Covington & Lobdell, Charlotte, for defendant appellant.

DENNY, Justice.

We think this appeal turns on the answers given to the following questions: (1) Was it the duty of the appellant, under the facts alleged, to inspect the gas pipes and heaters of its customer, the Mor-Mac Motor Court, and to keep them in proper repair? (2) Where one installed a gas heater of such capacity, and supplied it with gas at such pressure, that it was capable of exhausting the oxygen in the room to the extent that the occupants thereof might suffer carbon monoxide poisoning from improper combustion of the heater, did such conduct, standing alone, constitute actionable negligence? In our opinion the answer to each of these questions must be in the negative.

In considering the allegations of the complaint we note that the plaintiff does not allege that the installation of the heaters, pipes, connections, and gas storage tank at Mor-Mac Motor Court, approximately one year prior to the death of plaintiff's intestate, was done in a negligent or defective manner, or that any of the material or equipment used was unsuitable for its intended use or that it was defective. On the other hand, it is alleged that after such installation was made the appellant negligently failed to make any inspections or tests to ascertain whether the gas heating system installed remained safe for use by guests of the Motor Court. We do not think this allegation can be interpreted as alleging that the heating equipment was unsafe for use by the guests of the Motor Court when it was installed. Moreover, the allegation with respect to the retention of title by the appellant to the storage tank and its use by the Motor Court implies that the remainder of the heating equipment did not belong to the appellant but to the Motor Court. Consequently, failure on the part of the appellant to inspect the equipment thereafter would not constitute negligence on its part unless it was charged with the duty to inspect such equipment and to keep it in repair, and the complaint does not allege that the Rulane Gas Company was charged with such duty.

The mere fact that the appellant installed the pipes and appliances on the premises of the Motor Court for the owners thereof, in the absence of an allegation to the effect that such installation was improperly or defectively made, or that the material was defective or faulty, or that the appliances installed were defective or unsuitable for their intended use, would not be sufficient to fix the appellant with the duty to inspect and keep such equipment in repair. Bryson v. Atlanta Gas Light Co., 5 Cir., 170 F.2d 91.

Ordinarily, where gas lines and appliances are installed on private property, in the absence of notice of a leaky or defective condition therein, the supplier of gas is under no duty to inspect such lines and appliances and to keep them in repair, in the absence of a contract to do so. 38 C.J.S., Gas, § 42(d), p. 735, et seq.; Wilson v. East Gas Co., 68 Ohio App. 490, 42 N.E.2d 180; Ray v. Pacific Gas & Electric Co., 3 Cal. App. 2d 329, 39 P.2d 812; Bryson v. Atlanta Gas Light Co., supra.

The complaint contains no allegation to the effect that the appliances were out of order at the time plaintiff's intestate met her death, or that the appellant had been notified that the equipment was in a defective condition. It is merely alleged that approximately one year prior to the death of plaintiff's intestate, the appellant installed a "gas burning heater in Room No. 8 of such capacity and supplied it with gas at such pressure that it was capable of exhausting the oxygen in said room to the extent that occupants of said room might suffer carbon monoxide poisoning from improper combustion of the heater, thereby creating an inherently dangerous condition of which it gave the plaintiff's intestate no warning." (Emphasis added.) These allegations would seem to fall short of alleging that the appellant installed a heater which was unsuitable for use in the room where it was installed or that it supplied the heater with gas at an improper pressure, thereby creating the condition which was the proximate cause or one of the proximate causes of the death of plaintiff's intestate.

In our opinion, the allegations of the complaint are insufficient to withstand the demurrer.

The cases of Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R. 2d 881, Rulane Gas Co. v. Montgomery Ward & Co., 231 N.C. 270, 56 S.E.2d 689, and similar cases relied on by the appellee, are not controlling on the question presented on this appeal.

The ruling of the court below is

Reversed.