Summary
holding that the rescue doctrine applied to an off duty fireman who was injured when he, in response to a call for volunteers, voluntarily attempted to extinguish a fire while "under no duty or compulsion to do so"
Summary of this case from The Ga. Power Co. v. Brandreth Farms, LLCOpinion
40951.
DECIDED OCTOBER 26, 1964. REHEARING DENIED NOVEMBER 12, 1964.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Gambrell, Harlan, Russell Moye, E. Smythe Gambrell, Edward W. Killorin, Donald O. Clark, Greene, Neely, Buckley DeRieux, John D. Jones, for plaintiffs in error.
George C. Kennedy, Jack Turner, H. Briscoe Black, contra.
The petition, seeking damages for injuries sustained by a "skilled firefighter" while he was voluntarily and without rashness or recklessness helping to fight a bulk petroleum storage plant fire, the alleged sole proximate cause of which was the negligence of the defendant plant owner and defendant common carrier, stated a cause of action under the doctrine of rescue which was good as against the general demurrers.
DECIDED OCTOBER 26, 1964 — REHEARING DENIED NOVEMBER 12, 1964.
Hayward Johnson filed suit in Fulton Superior Court against J. Ran Cooper, a resident of Taylor County, and Walker Hauling Co., Inc., a common carrier with principal office in Fulton County, to recover damages for injuries alleged to have been caused by the defendants' negligence. The petition as amended alleged substantially as follows: That on August 17, 1962, defendant Cooper owned and operated a bulk plant for the storage of petroleum products near Rupert in Taylor County and the defendant company was engaged as a common carrier in the delivery of gasoline by transport truck to Cooper's storage tanks; that said plant consisted of four 7,500 gallon tanks set upon brick pillars, together with accompanying equipment, at which he stored Class 1 and other inflammable [flammable] petroleum products as classified by the Georgia Safety Fire Regulations; that said plant was constructed in such a manner that the fumes from any spillage in filling operations would be concentrated upon the parking space allotted for transport supply trucks; that the plant was situated in a congested, built up area, with the tanks being within 30 feet of a heavily traveled highway; that at about 6:30 p. m. on the aforementioned day, the defendant company, through its agents and servants, undertook replenishing operations at the plant; that defendant Cooper ordered Walker's agent to pump 7,050 gallons of regular gasoline into one tank, assuring him it would hold that amount; that Walker's agent then connected an auxiliary gasoline pump, which he carried for that purpose, to an electric pump maintained as a permanent installation at the plant, utilizing both pumps simultaneously, the auxiliary pump being placed in a position where the fumes from any spillage would be directed upon it; that the agent connected the tank truck to the storage tank but failed to connect the terminals of the unloading hose securely and to establish an electrical bond connection between the truck and the unloading devices; that during the pumping operation spillage occurred from loose or defective fill pipe connections; that when 6,500 gallons of gasoline, including the spillage, had been pumped, the tank began to overflow from the top valve; that the fumes from the spilled gasoline under the storage tanks were concentrated upon the truck and the auxiliary pump and ignited in an explosion which enveloped the plant in a petroleum fire; that the only practicable method of extinguishing and controlling such a fire was by the use of foam equipment, of which the nearest to the fire was at Manchester, Ga.; that the fire was burning out of control and a message for help was relayed by the Georgia State Patrol to the Manchester Fire Department Chief, who asked for volunteers who would, over and beyond the call of any duty, be willing to go to said fire and try to control or extinguish the same with foam, in the interest of rescuing life and property imperiled by the fire; that the plaintiff, Hayward Johnson, was a "skilled firefighter" and was among those who, under no duty or compulsion to do so, went to said fire for the purpose of assisting in extinguishment or control of the same before further explosions occurred; that the plaintiff drove his own automobile from Manchester to the scene of the fire and, together with others, had succeeded in partially extinguishing the flames by foam by about 10:30 p. m.; that the heat of the fire had caused the valves and pipes of the tanks to become warped, allowing more leakage to accumulate under the tanks; that the plaintiff was engaged, taking his regular turn with others, in playing a fire hose upon the hot and glowing wreckage surrounding the plant in order to prevent a resurgence of the fire, when an explosion of the spilled gasoline occurred, inflicting the various alleged injuries upon the plaintiff; that certain rules and regulations, set forth in the petition, promulgated by the State Fire Marshal, pursuant to law, governing the handling and storage of petroleum products, were in force at the time of the occurrence. The specifications of negligence alleged against defendant Walker Company are as follows: (a) In failing to ascertain what quantity of gasoline was already contained in the tank before engaging in an unloading operation. (b) In failing to use ordinary care or precaution in relying solely on information received as to how much gasoline the tank already contained before unloading. (c) In locating its auxiliary internal combustion pump and exhaust in close and hazardous proximity to its truck and the tanks, in violation of regulations duly promulgated by the State Safety Fire Commissioner pursuant to law, which act was negligence per se. (d) In failing to use ordinary care and precaution to shield the exhaust discharge pipe of its auxiliary internal combustion pump from gasoline vapors. (e) In failing to establish an electrical circuit bond connection between its truck and the unloading devices before unloading, in violation of regulations duly promulgated by the State Safety Fire Commissioner pursuant to law, which act was negligence per se. (f) In failing to use ordinary care or precaution to secure its hose terminals so as to prevent leakage of gasoline from the connections of its unloading hose. (g) In pumping gasoline into the tank in excess of its capacity, causing it to overflow. (h) In failing to devote adequate attention to its unloading operations so as to assure that no condition, such as overflow, developed which imperiled the life and property of others. (i) In causing suffering and permitting a fire and consequent explosion to take place at the plant. (j) In utilizing and parking its truck at and upon the provided space during unloading operations when defendant knew, or in the exercise of ordinary care should have known, that said space was located in a spot whereby the fumes and vapors from any spillage from the tanks would be directed toward and channeled upon the space. The specifications of negligence against defendant Cooper were as follows: (a) In failing to use ordinary care to ascertain the amount of gasoline that his tank held before unloading operations were ordered. (b) In failing to use ordinary care to give the defendant company's agent correct information in regard to the capacity of his tank for gasoline. (c) In failing to assure that the defendant company's unloading operations were carried out safely and in the exercise of ordinary care. (d) In causing, suffering and permitting a fire and consequent explosion to take place at the plant as aforesaid. (e) In furnishing and providing a parking space for the use of tank trucks during unloading operations which was in hazardous proximity to his storage tanks. The concurring negligence of both defendants was alleged as the proximate cause of the various injuries and damages sustained. While the case was pending the plaintiff died and his executrix, Helen Pike Johnson, was substituted as party plaintiff. The court overruled the renewed general demurrers of both defendants to the petition as amended, to which judgments exceptions are taken.
The allegation that the plaintiff was a "skilled firefighter" is not reasonably susceptible to the construction that he was a "fireman," volunteer or otherwise. True, pleadings must be construed against the pleader on demurrer but the rule does not require strained or unreasonable or illogical constructions. Proof that one is a skilled firefighter would not alone authorize a finding that he was a fireman. Likewise, an allegation that the Fire Chief of Manchester, Ga., asked for volunteers to fight the fire is not reasonably susceptible to the construction that the plaintiff was a volunteer fireman of the City of Manchester. But even if we are wrong in the above conclusions a volunteer fireman who receives no remuneration is even more entitled to the benefits of the rescue doctrine than one who is less experienced and who would more likely assume an unreasonable or foolhardy risk. To reduce the ranks of rescuers to the less competent would be to contradict and weaken the application and consequences of one of the most advanced doctrines evolved by the conscience of mankind.
The doctrine of rescue, as deduced from a series of Georgia cases, may be stated as follows: Where a defendant's negligent act, of commission or omission, has created a condition or situation which involves urgent and imminent peril and danger, to life or property, of himself or of others, those acts of negligence are also negligence in relationship to all others who, in the exercise of ordinary care for their own safety under the circumstances, short of rashness and recklessness, may attempt, successfully or otherwise, to rescue such endangered life or property, by any means reasonably appropriate to the purpose; and insofar as the proximate cause of any injuries that a rescuer sustains as a result of his efforts is concerned, the chain of causation remains intact, since it is reasonably to be anticipated that, once such peril to life or property is initiated and brought into being by the negligence of a defendant, reasonable attempts will be undertaken to alleviate and nullify the consequences of such peril. Atlanta c. Air-line R. Co. v. Leach, 91 Ga. 419 ( 17 S.E. 619, 44 ASR 47); Jackson v. Standard Oil Co., 98 Ga. 749 ( 26 S.E. 60); 14 Am. Neg. Cas. 140; Wilson v. Central R. Co., 132 Ga. 215 (1) ( 63 S.E. 1121); Louisville c. R. Co. v. Cline, 136 Ga. 863 (1) ( 72 S.E. 405); Hines v. Bellah, 26 Ga. App. 361 ( 106 S.E. 559); Atlantic C. L. R. Co. v. Wildman, 29 Ga. App. 745 (1) ( 116 S.E. 858); Blanchard v. Reliable Transfer Co., 71 Ga. App. 843 (1) ( 32 S.E.2d 420); Rushton v. Howle, 79 Ga. App. 360 ( 53 S.E.2d 768); Guy v. Blanchard Funeral Home, 85 Ga. App. 823 ( 70 S.E.2d 117); Geo. A. Fuller Constr. Co. v. Elliott, 92 Ga. App. 309 (2) ( 88 S.E.2d 413); Usry v. Small, 103 Ga. App. 144 (1) ( 118 S.E.2d 719), and authorities cited therein.
The allegations, that the defendants' negligence was the proximate cause of the explosion and fire which caused the plaintiff's injuries and that the plaintiff was free of contributory negligence, raised issues of negligence which a jury must resolve. There is no issue involved as to assumption of risk, since the doctrine of rescue necessarily contemplates an assumption of the risk inherent in the peril created by the defendants' negligence and allows recovery for injuries thereby incurred, for the reason that the defendants were charged with the foreseeability of their negligence attracting rescuers to assume the risks. Similarly, the "last clear chance doctrine" is not applicable as a defense on the general demurrer since this doctrine does not apply against non-negligent plaintiffs. Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159, 165 ( 91 S.E.2d 135); Hirsch v. Chapman, 109 Ga. App. 444, 450 ( 136 S.E.2d 409).
The court did not err in its judgment overruling the general demurrers to the petition as amended.
Judgments affirmed. Frankum and Pannell, JJ., concur.