In Seagraves v. ABCO Manufacturing Co. (1968) 118 Ga. App. 414 [ 164 S.E.2d 242], the plaintiff, a welder for 18 years, was injured when he attempted to strike an arch to a tank containing inflammable liquid, in reliance on the assurance of defendant's president that the tank had been "cleaned out.Summary of this case from Garcia v. Superior Court
ARGUED JULY 2, 1968.
DECIDED SEPTEMBER 30, 1968.
Action for damages. Fulton Superior Court. Before Judge Etheridge.
Alford Wall, Richard L. Parker, for appellant.
Lokey Bowden, Glenn Frick, for appellee.
1. The owner of a chattel who employs an independent contractor to repair it is under a duty to warn the latter if the employer has actual or constructive knowledge of any latent danger involved in the service, which is unknown to the contractor and could not be discovered by him in the exercise of ordinary care.
2. If the contractor proceeds with the work in reliance on the employer's representations conveying the assurance that the service may be performed with safety, he does not assume the risk unless the danger is so obvious that no prudent man would expose himself to it.
3. One who relies on representations of another and fails to take precautions for his own safety is not guilty of contributory negligence if a reasonable man would have relied on the representations under the same circumstances.
ARGUED JULY 2, 1968 — DECIDED SEPTEMBER 30, 1968.
Samuel Seagraves brought this action against ABCO Manufacturing Company to recover damages for personal injuries which resulted from the explosion of a tank which plaintiff was attempting to weld at defendant's request. Plaintiff took this appeal from the trial court's judgment based on a directed verdict for defendant.
The evidence showed that plaintiff had been a welder for about 18 years and operated his own business under the name of Seagraves Welding Company. The defendant corporation manufactured bonded brake linings for automobiles. Sometime, perhaps several years prior to the injury, plaintiff had constructed a steel tank for defendant according to specifications furnished by the latter. This was cuboid in shape, about 3 or 4 feet along each dimension, and was divided into two compartments, upper and lower. A lid provided access to the top section; the bottom section was closed except for a drain hole, a place to force air in one side for the purpose of displacing fluid from the bottom section to the top, and a pipe running in from the top section. Defendant used the tank in its manufacturing process to coat brake shoes, placed in the top section of the tank, with an inflammable rust-preventive fluid coming from the bottom section. Over a period of time the fluid built up a semi-solid residue coating the inside surfaces of the tank. Frank Lawton, defendant's president and manager, knew that the fluid used in the tank was dangerously inflammable. However, plaintiff knew neither the exact purpose for which the tank was used nor that it contained an inflammable substance.
On September 14, 1960, a small crack had developed at one seam in the bottom section of the tank, causing the fluid to leak out, and Lawton telephoned plaintiff's place of business seeking to have the tank repaired. Plaintiff testified: "He [Lawton] told me that he had a tank that was leaking and he wanted me to come over and weld it. . . He said it was a tank that I built that had sprung a leak and that he . . . had it cleaned ready for repair. . . I asked him the condition of the tank. He said, `The tank is outside.' Says, `It's been out there about two hours.' Says, `I've had it cleaned out, had a couple of boys take it outside and clean it out.' And said, `It's ready to weld. Just come on over and weld it. I'm in a hurry, my line is down.' And I told him I would." Lawton admitted in his testimony he knew at that time it was dangerous to weld the tank in the condition it was in.
Plaintiff did not contact Lawton again when he arrived at defendant's place of business. He found the tank outdoors on the ground. One of defendant's employees was there engaged in cleaning a rack which had been removed from the tank. The top section of the tank was apparently clean. Some of the residue which had been removed from the top section was on the ground in the vicinity of the tank, and this emitted noticeable fumes. Another one of defendant's employees showed plaintiff the crack in the tank. Before commencing to weld, plaintiff tried to look inside the bottom section of the tank, but there was not enough light to ascertain visually whether it was clean. He then sniffed the drain hole, and determined there were no fumes inside. There was no warning printed on the tank indicating its use as a container of an inflammable substance.
Using portable welding equipment installed on the back of his pickup truck, plaintiff struck an arc to the spot to be welded. An explosion immediately followed. Plaintiff was thrown down and was severely burned by the residue from the tank which had been ignited and which spattered on him in the explosion.
Two welders testified as expert witnesses for defendant. These stated that it was a customary safety practice in the welding industry, when a welder did not personally know what a tank had contained, to keep it flooded with water while welding, in order to prevent an explosion. In rebuttal a welder testified for plaintiff that this practice was not followed where a customer represented that he had cleaned the tank and where there was no odor of fumes inside the tank.
1. The complaint was based on negligent misrepresentation and breach of defendant's duty to warn plaintiff of the danger attendant on performing the service he was employed to render.
One who negligently gives false information to another is subject to liability for physical harm to the other caused by the latter's action taken in reasonable reliance on the information. Capital Automobile Co. v. Shinall, 103 Ga. App. 695, 701 ( 120 S.E.2d 351); Restatement, Second, Torts, § 311 (1). See also: Woodward v. Miller, 119 Ga. 618, 619 ( 46 S.E. 847, 64 LRA 932, 100 ASR 188); King Hardware Co. v. Ennis, 39 Ga. App. 355, 363 ( 147 S.E. 119); Segal v. Carroll Furniture Co., 51 Ga. App. 164 (1) ( 179 S.E. 775); Floyd v. Morgan, 106 Ga. App. 332, 336 ( 127 S.E.2d 31). "Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated." Restatement, Second, Torts, § 311 (2). If the owner of a chattel employs an independent contractor to repair it and the owner knows or in the exercise of ordinary care should know that there is some latent danger or unusually perilous condition involved in the service, which is unknown to the contractor and could not be known to him by the use of ordinary care, it is the duty of the owner to warn the contractor of the danger; for a breach of that duty resulting in injury to the latter, he has a cause of action against the owner. Huey v. City of Atlanta, 8 Ga. App. 597, 604 (3) ( 70 S.E. 71); Green v. Babcock Bros. Lumber Co., 130 Ga. 469 (2) ( 60 S.E. 1062). "If there are latent defects in machinery, or dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he shall give the servant warning in respect thereto." Code § 66-301. This principle is applicable, also, in the relationship of an employer to an independent contractor.
2. The holding in Dartmouth Spinning Co. v. Achord, 84 Ga. 14, 17 ( 10 S.E. 449, 6 LRA 190), that a repairer of machinery assumes the risk of defects which he is called on to repair and dangers incidental to those defects, is not applicable. The evidence showed that the condition creating the danger here was not the defect to be repaired, nor was it incidental to the crack in the tank. It was an independent condition of which Seagraves was not informed. See Fulton Ice Coal Co. v. Pece, 29 Ga. App. 507, 520 ( 116 S.E. 57), aff'd 157 Ga. 105, 106 ( 120 S.E. 636); Huey v. City of Atlanta, 8 Ga. App. 597, 604, supra.
Admittedly, the defendant knew of the presence of the inflammable substance and of the danger of welding the tank under the circumstances. There was evidence indicating that the plaintiff did not have personal means of knowledge of the danger equal to that of the defendant. It is true that an employee or contractor assumes all the usual and ordinary hazards of his business and is bound to use skill and diligence to protect himself. See Code § 66-303; e. g. Georgia R. Co. v. Nelms, 83 Ga. 70, 76 ( 9 S.E. 1049, 20 ASR 308). He also assumes any special risk which is known to him or which is so obvious that a reasonably prudent man would observe and appreciate it. E.g., Gray v. Garrison, 49 Ga. App. 472, 478 ( 176 S.E. 412). However, assumption of risk is a contractual incident of employment; being a contractual implication, it may be vitiated by express agreement or by a repugnant implication arising from particular transactions or communications between the parties. Brown v. Rome Machine c. Co., 5 Ga. App. 142, 149 ( 62 S.E. 720). Thus if one engaged to perform a service doubts the safety of performing the service but thereafter proceeds with the work in reliance on the employer's assurance that there is no danger, then unless the danger is so obvious that no prudent man would expose himself to it, the law implies a new quasi-agreement superseding the assumption of risk and placing responsibility for the resulting injuries on the employer. Cheeney v. Ocean Steamship Co., 92 Ga. 726, 731 ( 19 S.E. 33, 44 ASR 113); Bush v. West Yellow Pine Co., 2 Ga. App. 295, 298 ( 58 S.E. 529); International Cotton Mills v. Webb, 22 Ga. App. 309 (3) ( 96 S.E. 16); Borochoff v. Fowler, 98 Ga. App. 411, 416 ( 105 S.E.2d 764).
It was a question for the jury whether Lawson actually made the representations claimed by plaintiff. If those representations conveyed the assurance that it was safe to weld the tank in its existing condition, and if plaintiff acted in reliance on that assurance, then assumption of risk was not available as a defense. This would be true whether the assurance was purposely given or was unintended — in the first instance because the contractual implication was abrogated and in the second because the risk of negligent misinformation was not included among the hazards assumed at the inception of the employment.
3. In a colloquy between court and counsel the trial judge stated that defendant's motion for directed verdict would be granted because the evidence showed there was a safer way to weld the tank — that is by filling it with water before welding. There was uncontradicted testimony that the explosion could not have occurred if plaintiff had taken this precaution. However, this theory on which the directed verdict was based was erroneous for three reasons: (1) In Georgia we follow the doctrine of comparative negligence, not contributory negligence. Code § 105-603; Hill v. Callahan, 82 Ga. 109, 144 ( 8 S.E. 730). (2) Plaintiff's actions were to be measured by the standard of a reasonably prudent man; by that standard he was not necessarily required to follow the safest course of conduct. Where the duty is that of ordinary care, one is not negligent (or contributory negligent) merely because of failure to exercise that degree of care which would have absolutely prevented injury. Louisville Nashville R. Co. v. Rogers, 136 Ga. 674 ( 71 S.E. 1102); Richardson v. Pollard, 57 Ga. App. 777, 781 ( 196 S.E. 199); Cook v. Parrish, 105 Ga. App. 95, 100 ( 123 S.E.2d 409). (3). The theory assumes that the danger of welding the tank without first filling it with water was known or obvious to plaintiff. Negligence is predicated on what should have been anticipated, on faulty or defective foresight rather than on hindsight which reveals a mistake. Misenhamer v. Pharr, 99 Ga. App. 163, 168 ( 107 S.E.2d 875). Cited cases such as Cawood v. Chattahoochee Lumber Co., 126 Ga. 159, 161 ( 54 S.E. 944), and Atlantic C. L. R. Co. v. Street, 116 Ga. App. 465, 467 ( 157 S.E.2d 793), which rest on the axiom that one must choose a course of conduct which he knows to be safe rather than one which involves known or obvious peril, are not controlling here. It is plain that it was a question for the jury whether plaintiff should have anticipated the presence of the inflammable substance in the tank and the danger of welding it in that condition. One who relies on representations of another and fails to take precautions for his own safety is not guilty of contributory negligence if a reasonable man would have relied on the representations under the same circumstances. Southeastern Steelc. Co. v. Luttrell, 48 Tenn. App. 522 ( 348 S.W.2d 905); System Tank Lines v. Dixon, 47 Wn.2d 147 ( 286 P.2d 704). See also Desdemona Gasoline Co. v. Garrett (Tex.Civ.App.) 90 S.W.2d 636.
Since this case is to be retried, we wish to caution that the issues of negligence, assumption of risk and contributory negligence involved here do not turn entirely on the alleged representations. A jury would have been authorized to find that defendant was under a duty either to clean the tank sufficiently or to warn plaintiff of the danger irrespective of those representations. Even if defendant did not make the assurances which plaintiff claims lulled him, yet assumption of risk and contributory negligence were issues for the jury to decide. Our appellate courts have held in hundreds of cases that questions of negligence, diligence, contributory negligence and proximate cause are peculiarly matters for the jury and a court should not take the place of a jury in solving them except in plain and indisputable cases. E.g., Peek v. Baker, 76 Ga. App. 588, 595 ( 46 S.E.2d 751); McKnight v. Guffin, 118 Ga. App. 168 (1) ( 162 S.E.2d 743).
Judgment reversed. Hall and Quillian, JJ., concur.