Opinion
42489.
ARGUED JANUARY 3, 1967.
DECIDED JANUARY 18, 1967. REHEARING DENIED FEBRUARY 13, 1967.
Action for damages. Bibb State Court. Before Judge Phillips.
Olin C. Hammock, for appellant.
Harris, Russell Watkins, Philip R. Taylor, for appellee.
The petition in this case failed to state a cause of action against the landlord for failure to repair a gas water heater after an alleged notice of a dangerous condition in the heater.
ARGUED JANUARY 3, 1967 — DECIDED JANUARY 18, 1967 — REHEARING DENIED FEBRUARY 13, 1967 — CERT. APPLIED FOR.
In the plaintiff tenant's action against his landlord for damages for injuries sustained in the explosion of the hot water heater caused by defendant's alleged negligence, the petition as amended alleged as follows: "2. On or about the first day of April, 1964, plaintiff leased from defendant a house owned by him located on Hartley Bridge Road in the Fourth Land District of Bibb County, Ga., near Echeconnee Creek. Plaintiff lived in said dwelling until the month of July, 1964. 3. Upon entering into possession of said premises, plaintiff thereafter noticed that the hot water heater used for said dwelling would not remain lit and that it was located under the house in a pit. This location was not patent or visible without inspection of the premises more or less minute in character. Said pit was itself located on low ground into which water would drain in wet weather and accumulate. In order to reach said heater to light it, it was necessary to crawl under the house and get down into the pit. The house was constructed upon pillars two and one half (2 1/2) feet above the ground. The hot water tank was about five (5) feet in height with a diameter of approximately two feet and the pit in which it was installed was approximately six feet in diameter. Plaintiff remonstrated with defendant relative to the location of said heater but although defendant recognized the advantages of accessibility and safety to be gained by removal of said heater to a better location, he neglected so to remove it, stating he would do so at a later date.
4. Upon noting that the burner, thermostat, and safety pop-off valve connected to said water tank were to some extent rusted and dirty, plaintiff notified defendant that it would be better to replace them, to which defendant consented. The said burner was rusty and dirty from being covered by water running into the pit in which said heater was located and said safety pop-off water valve located above the heater was rusty from some water leakage but operable and of itself not dangerous because of the slight degree of leakage. The thermostatic control valve had some degree of rust by being covered with water but its operation was apparently dependable. Upon removal of the dust, dirt, and rust from the burner and such rust as appeared on the thermostat, said burner and thermostatic control valve operated without difficulty except when covered by water draining or seeping into said pit. Although plaintiff took special care to note whether gas escaped from said thermostatic control valve, he never smelled any escaped gas or had reason to believe any gas escaped at any time from said valve. If said valve had had any leakage, plaintiff would have noted it for the butane gas used to operate said heater was impregnated with a pungent smelling ingredient for the purpose of ready detection. Upon so being notified, defendant agreed to furnish a new thermostatic control valve and safety pop-off valve and did purchase said items and showed them to plaintiff whereupon it was evident that they were of the wrong type and would not fit. Defendant then stated he would return said items to the seller and wait until such time as he could remove said heater to a safer location than under said house. . . 6. It was the duty of defendant to furnish plaintiff, as his tenant, a safe and suitable water tank and heater and to install such equipment in a safe and accessible place. It was also the duty of defendant to maintain such equipment in adequate safe repair for plaintiff's use at all times and generally to maintain the dwelling and appliances therein and connected therewith in good and safe repair. 7. On or about June 24th, 1964, at approximately 7:30 p. m., plaintiff desired to light said heater and had placed his left leg in the pit in which the said heater was installed to do so. The procedural steps in lighting said heater were covered by instructions attached to it which plaintiff had always followed and was following when this accident occurred. He bent over to light said heater and burner by lighting the pilot light placing his left hand on the valve lever at the same time lowering his right hand holding therein a piece of paper which he had ignited and thereby lowering his face and shoulders into the pit. The pit, unknown to the plaintiff, had filled with gas from leakage of said valve and, as plaintiff lowered said ignited paper to light said pilot light and burner, the accumulated gas in the pit ignited and exploded and severely burned plaintiff on his face, arms, shoulder, his right knee, the whole of his left leg, and blistered his hands to the extent that plaintiff was taken to a physician and the hospital for treatment. . . . 9. Plaintiff alleges that the proximate cause of said injuries was the negligence of the defendant in the following particulars, to wit: (1) Locating said hot water heater and tank, including the pilot light, thermostat, and burner, under the dwelling occupied by plaintiff where gas could easily accumulate without means of escaping. (2) Locating said hot water heater in a relatively inaccessible and difficult to approach place, thereby making it necessary for plaintiff to expose his body and limbs to the hazard of being burned without adequate means of escape and protection. (3) Locating said hot water heater in a pit in a low place where water would accumulate and cover the burner and thermostatic valve, causing them to fail, cease to function properly, and become defective. (4) By not equipping said hot water heater with a proper and safe thermostat, burner, and valve, thereby causing and allowing flammable gas to leak from said valve and gas supply system and accumulate in said pit and vicinity. (5) By delaying replacement of said used thermostatic valve and burner by adequate and functioning items. (6) By not removing said hot water heater and system to a safe and convenient place easily accessible to plaintiff. (7) By not keeping said premises in good and safe repair, including a safe and adequate hot water heater and gas supply system. All of said injuries and damages of the plaintiff were directly and proximately caused by the said negligence of defendant. 10. Plaintiff was at all times, during and in connection with his acts in lighting and servicing said hot water heater and system, free of negligence upon his part and exercised due care and caution in approaching, handling, and lighting said hot water heater, thermostatic valve, burner, pop-off valve, and gas supply system and did not know and could not have known of said accumulation of gas in said pit prior to its ignition as aforesaid because of lack of anything to put him upon notice of such accumulation of gas."
Plaintiff appeals from the judgment of the court sustaining defendant's general demurrer to the petition as amended.
Although the landlord, after knowledge or notice that the premises were out of repair, might have been liable to the tenant for injuries sustained by the tenant as a result of his neglect to make repairs within a reasonable time, it was the tenant's duty to abstain from using that part of the rented premises the use of which would be attended with danger, and, if it affirmatively appears from the petition that the tenant voluntarily used the portion of the premises which he knew to be dangerous under the alleged existing and apparent conditions, such conduct was a failure to use ordinary care for his own safety and will bar the tenant's recovery, even though the landlord was negligent in failing to make the necessary repairs. Finley v. Williams, 45 Ga. App. 863, 864 ( 166 S.E. 265); Turner v. Long, 61 Ga. App. 785 ( 7 S.E.2d 595); Carroll Electric Membership Corp. v. Simpson, 106 Ga. App. 29 ( 126 S.E.2d 310); Spruell v. Ga. Automatic Gas c. Co., 84 Ga. App. 657 ( 67 S.E.2d 178).
Construing the above-stated allegations most strongly against the plaintiff, as must be done on general demurrer, they show that the plaintiff knew that the heater would not remain lit, but notified defendant merely of the rusty, yet safe and operable, condition of the various parts and the inconvenient location of the heater; that, if there was any leakage from the valve, the plaintiff would have smelled it, yet the explosion was caused by his attempting to light the heater when the pit was filled with gas from the leaky valve which he did not smell, which means that the plaintiff, with knowledge of the malfunction of the heater, either smelled the gas, as he alleged he would have, yet proceeded to light the heater anyway or, in the exercise of ordinary care, should have smelled the gas. Although the question of contributory negligence is normally one for the jury, the petition patently shows on its face that the plaintiff was guilty of such contributory negligence as bars his recovery, whether the petition be construed to allege that his attempt to light the heater was made with actual knowledge of the danger, acquired by his smelling the gas plus his three months' experience with the heater's defects, or with knowledge implied by the fact that a reasonably prudent man in the exercise of ordinary care would be put on notice of the danger of such circumstances.
There is no allegation in the petition as to the date of the notice alleged to have been given the landlord or the time elapsing from the date of the notice until the explosion. There is no allegation in the petition that the plaintiff ever gave notice of a condition which he considered dangerous so as to place upon the landlord the duty of immediate repair. In fact the allegations and absence of other allegations seem to indicate that the plaintiff was more interested in the heater's being located in a more convenient place than that it should have been rendered more safe. When the landlord is alleged to have bought new parts and decided to install them when he later would move the heater to a more convenient place, it is not alleged that the plaintiff remonstrated with the landlord concerning the dangerous condition of the heater or that he made clear to the landlord that his interest was in safety and not convenience. Construing the petition against the plaintiff it alleged only that the heater was not operable when seeping water put out the pilot light and that there was no danger from the putting out of the pilot light. Nothing alleged shows notice to the landlord of any danger attendant upon the rusty condition of the thermostat valve. See: Ball v. Walsh, 137 Ga. 350 ( 73 S.E. 585); Donehoe v. Crane, 141 Ga. 224 ( 80 S.E. 712); Clements v. Blanchard, 141 Ga. 311 ( 80 S.E. 1004, LRA 1917A 993).
The court did not err in its judgment sustaining the general demurrer to the petition as amended.
Judgment affirmed. Eberhardt, J., concurs. Hall, J., concurs in the judgment.