Opinion
39524, 39525.
DECIDED JULY 12, 1962.
Actions for damages. Cobb Superior Court. Before Judge Manning.
Frank Schaffer, Grubbs Prosser, J. Milton Grubbs, Jr., Jordan H. Prosser, for plaintiffs in error.
Edwards, Bentley, Awtrey Bartlett, Scott S. Edwards, Jr., Reed, Ingram Flournoy, R. M. Reed, Lawrence B. Custer, contra.
1. (a) Where the regulations of an administrative agency of the State are relied upon as setting forth a duty the breach of which imposes liability for negligence, the plaintiff must plead and prove them.
(b) A utility company supplying gas on private premises is not liable for injuries caused by the defective condition of appliances not sold or installed by it in the absence of actual knowledge on its part of the defective and dangerous condition.
2. (a) Allegations charging that the landlords installed a defective gas heater with knowledge of its condition stated a cause of action.
(b) The question of contributory negligence of a child of tender years was for the jury.
DECIDED JULY 12, 1962.
These are companion cases. In Case No. 39524 plaintiff Jerome Davis brought action against the defendants to recover for medical and other expenses incurred for treatment of his minor daughter for injuries she received and loss of services of his daughter because of her injuries through the negligence of the several defendants. Case No. 39525 was an action by the mother as next friend of the daughter to recover for the daughter's injuries in the same occurrence. The petition alleged that the injured child (hereinafter referred to as "the daughter") resided with the father (hereinafter referred to as "the tenant") in a house rented from the defendants Ernest L. and Ethel Majors (hereinafter referred to as "the landlords"); that the rental agreement was entered into in October, 1958, at which time there was only one gas radiant heater in the house; that the landlords would not permit any fires to be built or burned in the fireplaces and chimneys in the house but required the tenant to use a butane gas system which was already installed in the house; that at the time of the rental agreement the landlords agreed to install a gas heater in the kitchen at their expense and direction; that later in the year 1958 and before Christmas, the tenant made demand upon the landlords to provide more heat and asked them to install another gas heater in the kitchen in the house; that in December 1958, the landlords installed an additional heater in the kitchen; that at the time of the installation the defendant Ernest Majors for and on behalf of himself and as agent for his wife, Ethel Majors, went into an old barn on the premises and attempted to reclaim an old and worn out and battered up butane gas heater and began to run copper tubing, drilling holes and installing the heater in the kitchen of the house; that tenant's wife interposed objections to the installation of the heater to defendant Majors because the heater had no gas radiants installed in it and had no guard rail or guard or protection of any kind from the open flames that would come up when the gas heater was lighted and ignited and was burning; that defendant Majors ignored the request and demand of the tenant's wife but went ahead and installed the gas heater without placing any gas radiants in it and without providing a guard rail across the front of the heater; that thus the landlords had actual knowledge of the defective condition of the heater, to wit: Not having any gas radiants; in it when the heater was constructed for the use of gas radiants; and not having a guard rail across the front of the heater when the heater was constructed, designed and manufactured in its original condition so that the heater, in order to be safe, had a guard rail across the front of it to protect persons from coming in contact with the live flames; that the gas system utilized in the house was a liquefied petroleum gas system commonly referred to as butane gas; that such liquefied petroleum gas system was subject to the laws, rules and regulations of the State of Georgia and the office of the Fire Marshal, pertaining to liquefied petroleum gases; that the defendant General Gas Corporation (hereinafter referred to as "the corporation") supplied the liquefied petroleum gas for the system from time to time and at all times material to the action; that the corporation supplied and filled the gas for the system with liquefied petroleum gas while the system was defective and unsafe for use "contrary to the rules and regulations of the State Fire Marshal of Georgia."
The petition alleges that the nine-year-old daughter walked in front of the heater, the flames of which were unprotected and not confined by any gas radiants. Her clothing caught on fire, causing the injuries and damages from which the action resulted.
The defendant landlords were charged with negligence in the following particulars: In furnishing to the tenant a house in which to live which was not suitable for tenancy and not fit for human habitation, with a defective heater therein; in installing and placing in the kitchen a defective heater for the purpose of providing heat for the family of the tenant; in furnishing and providing a gas heater with no radiants with which to confine the flames and which had no guard rails or guard in front of the heater; in installing a heater which had been long in disuse without having it reconditioned and repaired and in good working order before installing; in failing to obtain a different heater and having the same repaired after having been put on notice of the defective condition of the heater; and in not warning and taking precaution to safeguard and protect the tenant's child from the defective condition of the heater.
The petition charged that defendant corporation was negligent as follows: That it induced liquefied petroleum gas into a defective gas system contrary to the rules and regulations of the State of Georgia concerning liquefied petroleum gas; and in supplying and inducing liquefied petroleum gas in a defective gas system without making an adequate and proper investigation to determine the safety of the gas system, contrary to the rules and regulations of the State of Georgia; that it took no steps to require the landlords of the premises to install a safe heater but persisted in permitting them to use a defective heater in the system; and that it made no inspection of the defective gas heater in order to determine the safeness of the system.
Both the landlords and the General Gas Corporation interposed general demurrers to the petition which were sustained as to each defendant, to which order and judgment the plaintiff excepted.
1. We first consider the alleged error in sustaining the general demurrers of the defendant corporation to the two petitions. One paragraph of each of the petitions charges that the gas company filled the system with liquefied petroleum gas while the system was defective and unsafe to use, contrary to the rules and regulations of the State Fire Marshal of Georgia. Other paragraphs of the petitions made the same charges of negligence as being contrary to the rules and regulations of the State of Georgia. We are not aware of "any rules and regulations of the State of Georgia concerning liquefied petroleum gas." None are set forth in the petitions. As this court will not take judicial notice of the rules and regulations of the State Revenue Commissioner, the State Highway Department, or other administrative agencies of the State, we will not extend this ceremonial courtesy to the rules and regulations of the State Fire Marshal.
Where the regulations of an administrative agency of the State are relied upon as setting forth a duty, the breach of which imposes liability for negligence, the plaintiff must plead and prove them if they are to be relied upon. Hubbard v. Ruff, 97 Ga. App. 251 (4), 257 ( 103 S.E.2d 134); and Turner v. Brunswick Distributing Co., 95 Ga. App. 651 ( 98 S.E.2d 591). See also Code § 38-112.
The allegations asserted against the defendant corporation for violation of the rules and regulations of the State Fire Marshal or of the State of Georgia were not sufficiently pleaded to show any breach of duty on its part.
The other proclaimed acts or omissions imputing negligence against the gas company, one that it did not require the landlords to install a safe heater and another that it made no inspection of the defective heater to determine the safeness of the gas system, do not set forth any charges of negligence. In a factually similar case this court held that where an appliance for heating water by gas on private premises is owned and installed by the owner or occupant, the gas company not selling or installing the appliance but merely furnishing gas to it, is not responsible for the condition of the appliance and is not liable to the owner or occupant for injuries caused by its defective condition, unless the gas was supplied by the company with actual knowledge on its part of the defective and dangerous condition of the appliance. Metz v. Georgia Public Utilities Corp., 52 Ga. App. 771 ( 184 S.E. 629). See also Carter v. Callaway, 87 Ga. App. 754 ( 75 S.E.2d 187); Milligan v. Georgia Power Co., 68 Ga. App. 269, 279-280 ( 22 S.E.2d 662); Cornett v. Georgia Public Utilities Corp., 63 Ga. App. 305 ( 11 S.E.2d 68).
The petition contains no allegations that the defendant corporation had actual knowledge that the system was dangerous and defective. Consequently, under Metz and the other authorities cited, there is no duty to inspect to determine the condition of wiring or electrical or gas appliances or pipes on premises owned and controlled by the owner of the building or the occupant.
The trial court properly sustained the general demurrers of the General Gas Corporation in these two cases.
2. The defendant landlords urge that the petitions do not state a cause of action against them and cite cases following the well known rule that the landlord is not liable for injuries to his tenant arising from a patent defect in the premises existing at the time of the lease. Golf Club Co. v. Rothstein, 97 Ga. App. 128 ( 102 S.E.2d 654). If this rule applies to the facts of the present actions, both the tenant and his daughter would be barred from maintaining their respective actions as the members of the family stand in the same relation to the landlord as does the tenant. Mitchell v. Clark, 39 Ga. App. 714 (1) ( 148 S.E. 420).
However, under the allegations of the petitions, the allegedly defective heater was not installed at the time the rental agreement became effective but, on the contrary, was installed some months later. Accordingly, we think that the landlords by subsequently installing the heater and adding it to the heating system which they supplied for the use of the tenant became subject to the duty imposed upon them by law. Code § 61-111 provides that the landlord must keep the premises in repair. By judicial interpretation numerous cases have held that the landlord has no duty to repair until he has notice of, or otherwise acquires knowledge of, the necessity for repair. By the express allegation in the petitions the landlords here had notice of the allegedly defective condition of the heater.
It is elementary that questions of negligence and contributory negligence are peculiarly for the jury to determine, and the courts will only resolve them as a matter of law where the answer is plain and palpable. We feel that the question of contributory negligence of a child of tender years is one especially for the jury since the determination of whether the child exercised due care must be made by the subjective standards enunciated in Code § 105-204. Here the daughter was nine years of age at the time of the injuries, and a jury must decide what degree of care she was capable of exercising under the actual circumstances of the case by determining her mental and physical capacity to act with due care. Savannah, F. c. R. Co. v. Smith, 93 Ga. 742 (3) ( 21 S.E. 157).
A jury issue was presented by the petitions as to the negligence of the landlords.
The trial court erred in sustaining the landlords' general demurrers to the petitions, but properly sustained the general demurrers of the General Gas Corporation to the petitions.
Judgment affirmed in part; reversed in part. Felton, C. J., and Hall, J., concur.