Opinion
38308.
DECIDED JUNE 8, 1960.
Action for damages. Spalding Superior Court. Before Judge McGehee. February 19, 1960.
Beck, Goddard, Owen Smalley, William H. Beck, Jr., Arthur K. Bolton, for plaintiffs in error.
Christopher Futral, Cumming Cumming, contra.
1. An administrator is a proper party to bring suit for recovery of damages to real property under such circumstances as are shown by this petition.
2. An administrator is likewise a proper party to bring suit for recovery of damages to personal property, under the record before us.
3. Ordinary care was required of the defendants. It is a jury question as to whether or not the defendants exercised ordinary care. This court cannot say, as a matter of law, that they did or did not exercise such care.
DECIDED JUNE 8, 1960.
Harold B. McKneely, Sr., brought an action against the City of Griffin, Atlanta Gas Light Company and Southern Bell Telephone Telegraph Company as joint tortfeasors. The action was brought on behalf of the estate of Mrs. Grace Pope McKneely, deceased, to recover for the destruction of a dwelling owned by Mrs. McKneely at the time of her death, and to recover for the destruction of personal property located in the dwelling, and shrubbery in and around the house. The administrator sought $37,000 damages for the dwelling which was destroyed, and $20,953.78 for personal property damaged or destroyed, making a total of $57,953.78.
The petition, as twice amended, alleges (paragraph 1) that the plaintiff is the duly appointed, qualified and acting administrator of the deceased Mrs. McKneely, having been appointed and qualified as such on July 7, 1958, bringing the petition in his representative capacity; (2) that the defendant City of Griffin is a municipal corporation located in Spalding County, Georgia; (3) that the defendant Atlanta Gas Light Company is a Georgia corporation having an agent and office in Spalding County; (4) that the defendant Southern Bell Telephone Telegraph Company is a corporation of the State of New York, having an office, agent, and transacting business in Spalding County; (5) that petitioner (the administrator) has been injured and damaged by the joint and concurring acts of negligence of the three named defendants in the aggregate sum of $57,953.78; (6) that in accordance with the provisions of Code (Ann.) § 69-308, the administrator presented in writing to the defendant City of Griffin on July 18 and July 19, 1958, and within six months of the date of the event upon which the claim is predicated, his claim and demand for the payment of said sum and that the defendant City of Griffin has failed to make payment thereof and has not replied to said demand; (7) that the intestate Mrs. McKneely was, at the time of her death on October 28, 1952, the owner of a described dwelling house which was destroyed, and that prior to the giving of notice and the filing of action, the administrator was in possession of the described real estate and subsequently sold said lot at public outcry after having been granted leave by the Court of Ordinary of Spalding County; (8) that the intestate was the owner at the time of her death of certain personal property described in an exhibit and demand was made for damages for the destruction of this personalty; (9) that the dwelling was erected in or about 1930 and had been continuously occupied by Mrs. McKneely to the date of her death, and after that date, by the members of her family to January 31, 1958, when the building was destroyed; (10) that from the time of the completion of the dwelling to the date of the destruction thereof, it was served with gas by the defendant Atlanta Gas Light Company by means of a metal pipe approximately three-fourths of an inch in diameter leading from the gas main located in the street and into the basement of the dwelling, the meter for the said gas being located in said basement; that the gas line and meter were at all times under the supervision, control and direction of the Atlanta Gas Light Company, said gas line and meter having been installed under the supervision, control and direction of the Atlanta Gas Light Company; (11) that since the completion of the dwelling to January 31, 1958, said dwelling was serviced with electric current by the defendant City of Griffin, said electric current and service having been made available to said dwelling by and through three separate wire conductors, separately insulated and not bound into a three-way conductor cable, said conductors being housed in a metal pipe approximately 1 1/2 inch in diameter, extending underground from inside the basement of the dwelling to the utility pole of said defendant; that all this was at all times during said period, under the supervision, control, and direction of the defendant City of Griffin, having been installed likewise; (12) that from the time of the completion of the dwelling to the date of the destruction thereof, telephone service was furnished to the dwelling by the defendant Southern Bell Telephone Telegraph Company, said service being made available through two separate conductors, separately insulated and bound into one conductor cable and housed in a metal pipe approximately 3/4" in diameter, extending from the inside of the basement, underground, to and up the pole on which was located the main line of the said defendant; that all of this was installed and was at all times under the supervision, the control and direction of the said defendant; (13) that the underground portions of the gas service line, the electric service line, and the telephone line, were all installed and laid in the same ditch at a depth of approximately 1 1/2', extending from the dwelling to the street in close proximity to one another, the separating distance at the point where said pipes revealed holes and deterioration was not in excess of three inches and that said ditch was filled and covered with earth during the entire time, all of which it is alleged was known to the defendants; (14) that from the original date of installation of the telephone service line, the electric line and the gas pipe line down to the date of the destruction, there were no periodic inspections of the underground portion of the lines and pipes by either of the defendants; that inspection would have revealed the deterioration and holes in said pipe; that since the installation there had been no seal or closure of the end of either of the service lines; (15) but that such would have prevented the escape of gas through the pipes and into the basement of the dwelling; (16) that over the period of time from installation to destruction of the building, the action of time and moisture resulted in deterioration and breaking down of the insulation on the wires conducting the electric current, telephone line and gas line so that holes appeared in all of the housings; (17) that on January 31, 1958, gas escaped through holes in the gas pipe, the gas being under pressure and in close proximity to the pipe housing, the telephone line and electric lines, thus forcing its way through and around the housings and passing thence into the basement of the dwelling; (18) that on that same date the gas was ignited and an explosion ensued; (19) that as a result of the explosion, the dwelling was totally and completely destroyed; the said dwelling immediately prior to the said explosion having had a fair and reasonable market value of $37,000 and that immediately following the explosion the dwelling was of no value; (2) that as a result of the explosion, articles of personal property itemized as an exhibit were totally and completely destroyed, said articles having had an aggregate fair and reasonable market value of $19,440.78 immediately prior to the explosion and no value immediately after said explosion; (21) that as a result of said explosion, the shrubbery was destroyed, the reasonable market value immediately prior to the explosion being listed as $1,338 and immediately after the explosion it was worth only $175. Paragraph 22 was stricken by amendment. Paragraph 23 alleges that the damage to and loss of the property resulted from the joint and concurring negligence of the defendants, such negligence being detailed, but considered in the main part as permitting and approving the installation of the service lines and allowing the same to remain in the ditch without inspection.
The petition contained a prayer for judgment against the defendants in the amount of $57,953.78.
The trial court overruled the demurrers of each defendant to the petition. It is to the overruling of the demurrers that the case is here for review.
1. Counsel for the administrator set up three points which are submitted as issues to be determined by this court. Counsel for the defendants argued the points in practically the same language. We will take up these three points and pass on each one in turn. The first point presented is whether or not the administrator in his official capacity can maintain an action for damages to real estate which occurred before his appointment and qualification as administrator, and at a time when the title to the real estate was in the heirs-at-law of the intestate or where such right of action is in the heirs of the intestate.
It should be noted that the Court of Ordinary of Spalding County granted letters of administration. Such order is conclusive in this proceeding as to the necessity of administration for some or all purposes, and cannot be collaterally attacked as is apparently attempted by counsel for the defendants. See Maybin v. Knighton, 67 Ga. 103, Medlin Sundy v. Downing Lumber Co., 128 Ga. 115 ( 57 S.E. 232), Sturtevant v. Robinson, 133 Ga. 564, 572 ( 66 S.E. 890), Milner v. Allgood, 184 Ga. 288 ( 191 S.E. 132), and Brown v. Gibson, 203 Ga. 213 ( 46 S.E.2d 68). The order granting leave to the administrator to sell the lot on which the dwelling was located is conclusive on the defendants as to the necessity of such sale by the administrator. See Code § 113-908, and Hardin v. Council, 200 Ga. 822, 835 ( 38 S.E.2d 549).
No defects are apparent on the face of the record to make the judgment of the court of ordinary subject to be collaterally attacked. In Jones v. Smith, 120 Ga. 642 (1) ( 48 S.E. 134), this court held: "The court of ordinary being a court of general jurisdiction, where the record is silent it is to be presumed in favor of one of its judgments that every fact necessary to make it valid and binding was before the court."
The title to the realty is immediately vested in the heirs of an intestate upon his or her death. See Code (Ann.) § 113-901 and Veal v. Veal, 192 Ga. 503 (4) ( 15 S.E.2d 725). However, if there be a legal representative, the right to recover for the benefit of the heirs is in such representative. If there be no representative, the heirs may sue in their own names to clear title to land. See Warren v. Federal Land Bank of Columbia, 157 Ga. 464, 468 ( 122 S.E. 40, 33 A.L.R. 45). In the case of personalty, heirs cannot sue except in some special circumstances, such as the refusal of the administrator to act, or fraud. See Moughon v. Masterson, 140 Ga. 699, 705 ( 79 S.E. 561), Williamon v. Williamon, 209 Ga. 494 ( 74 S.E.2d 71), and Bennett v. Bottoms, 64 Ga. App. 456, 457 ( 13 S.E.2d 519). It has been held that even though a person has been dead for more than 15 years with no administrator having been appointed, such would not furnish a sufficient ground for equitable interposition. An action for damages is a chose in action, and after having been resolved in favor of the heirs, it is the duty of an administrator to distribute the liquidated assets to the heirs. There is nothing in this record to show that the estate was settled by mutual consent of the heirs.
Counsel for the defendant contend that the administrator was not a proper party to bring this suit. This case is here on demurrer, hence the allegations of the petition are presumed to be true. The heirs only, and not a third party, can dispute the rights of the administrator. This they have not done. The heirs were instrumental in getting the administrator appointed and certainly are not disputing his right to serve. Of course the defendants would like to show that the administrator is not the right party to bring the suit and thus abate the action, but such is not their province. When the dwelling house and personal property were destroyed, there was an immediate cause of action for which someone would have to bring suit. The heirs had not brought suit at the time the administrator was appointed and it thus devolved on the administrator, who was probably appointed without objections, to bring the suit. The heirs could not sue out a cause of action to recover for loss of or damage to personalty; thus it was necessary to have an administrator appointed for that reason. Causes of action occurring after the death of a decedent but before letters of administration are granted vest in the administrator. See 33 C. J. S 1084, § 126. Smith v. Fischer, 52 Ga. App. 598 ( 184 S.E. 406) is not authority for reversal of the case at bar. That case differed in many respects from the case at bar — for instance, that was a case of trespass with no question of negligence involved whatsoever. The case at bar involved damages alleged to be the result of the negligence of the defendants. We find no law which would bar an administrator, in his official capacity, from maintaining an action for damages to real estate which occurred before the appointment and qualification of an administrator, at a time when the title to real estate was in the heirs-at-law of the intestate, and this is true whether the possession be real or adverse.
2. The second issue involved here is whether or not the administrator, under the facts alleged in the petition, can bring an action to recover for the destruction of personal property or whether such right is in the heirs of the intestate. The matter of whether the heirs were holding the realty and the personalty by reason of adverse possession is not before this court at this time. At any rate, heirs do not take title to personal property and cannot maintain an action for recovery or damage thereto, except in special circumstances such as fraud, etc., and no such special circumstances appear here. If there has been no administrator appointed, one must be appointed to bring such a suit. See Moughon v. Masterson, 140 Ga. 699, supra. A suit for personalty cannot be maintained by heirs even though it be alleged that the decedent owed no debts. See Stone v. Edwards, 32 Ga. App. 479 ( 124 S.E. 54). There is no doubt but that the administrator was a proper party, and in fact the only party legally qualified to bring suit for damages to personalty.
3. The third and last point involves the matter of whether or not there was a duty imposed on the defendants to inspect the underground installations to which reference is made in the petition. Counsel for the defendants cite Cornett v. Georgia Public Utilities Co., 63 Ga. App. 305 ( 11 S.E.2d 68). It seems that that case concerned the condition of an appliance, which has nothing to do with the situation involved in the case now before us. Here pipes were originally installed under the supervision and direction of the respective suppliers of utilities. It is true that suppliers of utility services are not chargeable with knowledge of deterioration or defects beyond where the services are delivered to the customer, that is, to the meters, but here the defects were at a point between the trunk lines on the street and the meters, these installations being at all times under the supervision and control of the defendants. At this point the utility companies might have the duty of inspection, but we cannot say, as a matter of law, that they do have, this being a jury question. See Newill v. Atlanta Gas-Light Co., 48 Ga. App. 226, 228 ( 172 S.E. 232). The defendants have the duty of ordinary care. It is a jury question as to whether or not the duty of exercising such care entailed the degree of caution shown by the allegations of the petition or whether greater caution was indicated. Negligence, whose negligence and what negligence, are questions for determination by a jury. In regard to the degree of care necessary under such a record as depicted here, see Trammell v. Columbus Railroad Co., 9 Ga. App. 98 (2) ( 70 S.E. 892), and Bleckley v. Western Carolina Telephone Co., 42 Ga. App. 110 ( 155 S.E. 83).
Under the allegations of this petition, it cannot be said as a matter of law that the defendants had no duty to see that the conduits were in such condition as to afford the customer ordinary protection from danger. This is a question which is addressed to the jury.
The court did not err in the rulings on any of the demurrers.
Judgment affirmed. Townsend, Carlisle, and Frankum, JJ., concur.