Opinion
34505.
DECIDED APRIL 22, 1953. REHEARING DENIED MAY 13, 1953.
Damages. Before Judge Jones. Albany City Court. December 31, 1952.
A. N. Durden, Peacock, Perry Kelley, Jesse W. Walters, for plaintiff in error.
H. G. Rawls, B. C. Gardner, Jr., Hilliard Burt, W. H. Burt, contra.
1. The court did not err in overruling the general demurrer to the petition.
2. The court did not err in overruling the special demurrers.
3. The court did not err in admitting in evidence a certified copy of only a portion of a city ordinance, under the facts of this case.
4. Under the facts of this case, the court did not err in excluding from evidence newspaper articles and notices relative to the conversion by the City of Albany of its gas system from a lighter-than-air system to a heavier-than-air system.
5. For reasons stated in division three, the court did not err in charging that the violation by the city of its own ordinance would constitute negligence per se.
6. For reasons stated in division three, it was not error to refuse to charge that the city was under no duty to comply with the ordinance, and similar request.
7. The charge of the court on damages shows no error.
8. Since the evidence demands a finding that the city was guilty of negligence per se in violating its own ordinance, the various errors complained of in the admission of evidence on the question of common-law negligence and charges of the court on the subject, if erroneous, were not harmful or prejudicial to the defendant.
9. The motion for new trial was properly overruled on the general grounds.
DECIDED APRIL 22, 1953 — REHEARING DENIED MAY 13, 1953.
W. H. Burt instituted an action for damages in the City Court of Albany against the City of Albany for personal injuries sustained by him and resulting from an alleged flash fire or explosion, which occurred June 1, 1951, when the plaintiff attempted to light the pilot light on his gas hot-water heater. The original petition alleged: "2. Defendant owns a gas plant, and is engaged in the business of operating said plant through a Board of Water, Gas and Electric Light Commissioners, who cause the said gas to be distributed through mains and pipe lines to different residences in Albany, Georgia, including the residence of plaintiff, for certain considerations in money. 3. Plaintiff herein was such a residential customer, using gas supplied by defendant at all the times stated herein. 4. In the summer of 1949, defendant changed the kind and quality of the gas furnished to its customers in the City of Albany, from manufactured gas, which was not highly explosive, to a propane gas, which was approximately twice as dangerous as manufactured gas. 5. Before making said change, defendant did adjust the appliances of its customers, including the gas hot-water heater of plaintiff, by reducing the orifice, in an effort to make said appliance capable of being used for the new gas. 6. Following the said adjustment, defendant did substitute the said new type of gas, and caused the same to be distributed through its mains and system to its customers, including plaintiff, in the City of Albany. 7. On June 1, 1951, about the hour of 9 o'clock a. m., plaintiff attempted to light the pilot light of the gas hot-water heater, which had ceased to burn, in the basement of his home at 1105 N. Jefferson Street, Albany, Georgia. As a lighted match struck on the floor was being applied, a gas explosion occurred which severely burned plaintiff, his hands, face and other parts of his body, the burns to his hands being second and third degree burns. 8. The said heater is located in the northeast corner of a basement, size approximately ten feet by twenty-five feet, and depth of approximately twelve feet, in plaintiff's residence, in which basement is located a coal furnace, and an iron fireman, the door of which furnace is four or five feet from said heater. 9. Plaintiff has used heaters of standard type and make for furnishing hot water, replacing the same as it became worn and inefficient, for a period of more than thirty years. 10. Said appliance was in good condition, and safe for the use intended, to wit, the use of manufactured gas, so far as plaintiff knew, or was able to ascertain, as the same had functioned properly previous to the date of said injury. 11. At no time since the summer of 1949 when defendant, through its agents, servants and employees, worked on said gas heater for the purpose of making it adjusted to the use of new gas, has anyone except the defendant done any work of any sort on it. 12. Plaintiff shows that the gas valve on said heater was designed for the use of manufactured gas. 13. Plaintiff shows that in order to make the heater safe for the use of the new propane gas or propane air, it would have been necessary for the defendant to have installed a device or control so as to shut off the flow of gas when the pilot light went out, and the failure of defendant to make this installation made the gas heater unsafe for the use of the new gas. 14. Plaintiff thus had no technical knowledge of the nature or condition of the heater, but defendant had knowledge of, and familiarity with it, its construction, condition and character and having undertaken to adjust it for the use of the new gas, defendant knew or ought to have known of the dangerous condition of the heater without a safety device cutting of the flow of gas entirely when the pilot light became extinguished. 15. Prior to said change of gas by defendant, the pilot light had gone out many times on account of low pressure in the gas mains, and plaintiff had lighted it without the slightest sign of an explosion. 16. Plaintiff had no knowledge of the explosive character and quality of the new propane gas, or propane air, in that the new gas was heavier than air, and would sink and settle at the place of outlet, whereas the old gas, being lighter than air, would rise or diffuse in the atmosphere, and was less explosive in nature, and of a strong, distinct odor, so as to make it impossible not to detect the presence of the old gas. 17. Plaintiff thus being inexperienced in the handling of gas appliances, and being without knowledge of the dangerous character of the new gas, and having no warning of its presence from any odor, did attempt, in the usual and customary manner, to light the pilot light, when an explosion occurred, causing injuries as described above. 18. The explosion would not have occurred had the manufactured gas been in the conduits and pipes in plaintiff's home, and it occurred only because of the change of the gas without giving warning of the increased risk and dangers incident thereto." 19-24. Plaintiff alleges that he was injured in enumerated particulars; that he received a 50% disability of the hands and a 25% disability of the body; that he had expended certain sums for medicine and medical care; that he had a certain earning capacity; that he had a life expectancy of 15.55 years. "25. Plaintiff shows that said injury, being permanent, plaintiff has suffered a loss of $30,506.25 for reduced earning capacity over his expectancy of years. 26. Plaintiff is entitled to recover $10,000 for pain and suffering, past and future. 27. So it is, plaintiff has been damaged in the sum of $46,500.25, general and special damages, for the recovery of which this action is brought. 28. Plaintiff's injuries and suffering, losses and pain are due entirely to the negligence of the defendant, its agents, servants and employees, acting within the scope of their employment, and in line of duty, as follows: defendant and its agency, the Water, Light and Gas Department, and its servants and employees, did: (a) fail to maintain a steady pressure of gas, as a result of which same would become so low during the hours of the day when gas was being heavily used, that not enough gas would pass through the pilot light to support a flame, resulting in same becoming extinguished, but the gas would continue to flow through the pilot light and accumulate in the basement, where the hot water [heater] was located; (b) that the defendant changed the type of gas that it was providing its customers, including plaintiff, from a type that was lighter than air, which had a distinct odor, and not explosive, to a propane type gas, which had different qualities, including that of being heavier than air, and with no odor that could be detected, and more dangerous, and defendant failed to warn the plaintiff of the consequences of the change; (c) defendant failed to bleed into its said new type of gas some substance that would give it a noticeable and distinct odor so as to afford to a user knowledge of its presence; (d) defendant further failed in its duty to plaintiff when it worked on the appliance of plaintiff which was designed for the use of manufactured gas, and in adapting it to the use of the propane air, defendant failed to attach a safety device that would have automatically cut off the flow of gas when the pilot light became extinguished, or defendant should have informed plaintiff of the necessity of said safety device being installed, and in this failure defendant made an instrument unsafe for use that was previously safe. 29. Said acts of negligence of defendant, jointly or severally, were the proximate cause of said explosion and resulting injuries, and plaintiff, by the exercise of ordinary care, was unable to avoid the consequences of said negligent acts. 30. Plaintiff has demanded of defendant that it compensate him for the infliction of said injuries, and defendant has failed and refused to make any recompense for the damage and losses and suffering it has caused plaintiff. 31. On August 27, 1951, plaintiff served the defendant with notice of his claim for damages for his said injuries, as provided by Code § 69-308, Code of Georgia Annotated."
Plaintiff filed the following amendment, which was allowed subject to demurrer: "By adding the following paragraphs: 18 (a) Said heater was manufactured by American Gas Products Corporation, a division of American Radiator Company, and was equipped with a No. 435 gas valve manufactured by Detroit Lubricator Company of Detroit, Michigan. (b) Said heater was purchased by plaintiff 12 or 15 years prior to the explosion. (c) Plaintiff had used at one time a Rudd heater of the same general type purchased from the Water, Light and Gas Department of defendant herein. (d) Defendant, through its agents, servants and employees, the names of whom are unknown to plaintiff, but well known to defendant, and acting under defendant's authority, and within the scope of their employment, did assume control of said water heater in the summer of 1949 in connection with its conversion operation of changing of its gas supply from the manufactured or lighter than air gas, to a liquid petroleum gas or propane, which was heavier than air, and defendant was under a duty to inspect at said time said heater and its operation for any defects, to determine whether the same could be safely used for the consumption of said new gas. (e) Plaintiff shows that said heater, being designed for the lighter than air gas, did not contain thereon a safety device that would have automatically shut off the flow of all gas into the heater in the event of a pilot light failure, and such 100% safety cut-off was a device not needed to make said heater safe for the use of the lighter than air gases, because such gases would rise and dissipate in the atmosphere in event of a failure of the pilot light, but such safety device would be needed if said heater should be changed over from its original design, and made adapted to the use of the heavier than air gases, as such gas would not dissipate from said heater or its surroundings on the floor (the heater being situated about 6 1/2 inches from the floor of the basement), but the same would concentrate on the floor, seeping down through the openings in the bottom of the heater, and thus an increased danger was created by defendant, which should have been protected against by the installation of said additional safety device. (f) Plaintiff shows that said safety device could actually have been installed on said heater. (g) Plaintiff was given no notice by the defendant of the need of said safety device, neither was the plaintiff informed that said new gas had said different properties and characteristics from the old gas. (h) There was no warning given to the plaintiff of the increased danger created by said acts of defendant. (i) Further, defendant serviced the said heater in November, 1949, and again entered on its records that the same was in good condition and operated properly. (j) Plaintiff shows further that the Board of City Commissioners of the City of Albany, Georgia, enacted on July 26, 1949, Plumbing Ordinance No. 93, providing as to gas appliances, Article 16, Section 14, the following: `All automatic gas appliances shall be equipped with 100 percent shut-off safety pilots.' (k) The said ordinance was in full force and effect at the time of plaintiff's injury. (1) Notwithstanding the requirements of said ordinance, defendant's agents, servants and employees, who took full charge and control of plaintiff's automatic gas appliance and changed and adjusted the same, did fail to comply with said ordinance. (m) Defendant in making said change and adjustment in said appliance was under a duty to protect the public and its customers from the increased hazard incident and occasioned by this change in its business from artificial to the heavier than air gas. Defendant thus owed the public duty to its customers to effect said change in a reasonably safe manner, and the public and your petitioner were authorized to rely upon and rest secure in the undertaking of defendant to accomplish said changes, and petitioner did rely on defendant's prudent discharge in this undertaking in its duty to save petitioner from harm in the performance of this duty. (n) That the explosion and resultant injuries to plaintiff was caused through and by the carelessness and negligence of defendant and its agents and employees, in its failure to comply with said ordinance and attach said safety device so as to prevent the flow of gas into the heater upon the failure of the pilot light to function, and leaving the heater in this condition was extremely dangerous and entirely unknown to petitioner. (o) Defendant knew or reasonably could have known by proper inspection and examination at the time of said improper adjustment of the entire condition of said heater, and its operation and function, and if it was defective for any cause should have determined the same and made repairs and correction, or brought it to the attention of your petitioner, and petitioner's injuries were occasioned by the failure of defendant and its agents to make proper inspection and adjustment thereof, and these failures and defaults did produce said explosion and resultant injuries. (p) Plaintiff shows that by reason of said additional acts or acts of negligence on the part of the defendant aforesaid, defendant has become liable to plaintiff for his damages and injuries and losses, and physical pain and suffering, and mental anguish on account of the condition of his hands as set forth herein. 2. Plaintiff further shows that he had two operations on his hands, and was hospitalized during a portion of the months of October, November and December, 1951, and adding the time of trips from Albany to Atlanta to consult his doctor, plaintiff lost an additional month's time from his office, amounting to $1,597. 3. Plaintiff further amends paragraph 21 of said petition by striking the figure $1,897 and inserting the figure of $3,981.02 as being the sum of said expenses that have accrued to date, plaintiff still being under the care of his attending physicians, and having additional bills for medical expenses to pay. 4. Plaintiff amends paragraph 27 by striking the figure $46,500.25 and inserting $50,181.27."
The defendant filed an answer, which in the main either denied the plaintiff's allegations or for lack of information neither admitted nor denied them, and which also alleged as follows: "Answering Paragraph 2, defendant admits that it owns a gas plant and is engaged in the business of operating said plant through a Board of Water, Gas and Electric Light Commissioners and that it does cause said gas to be distributed through mains and pipe lines to different residences in Albany, Georgia, including the residence of plaintiff, and further answering said paragraph, this defendant shows that a charge is made to its various customers for the gas furnished but that no charge is made for the installation of pipe and materials on the premises of the residences who use the gas, and this defendant further says that it does not install gas appliances. Answering Paragraph 4, this defendant admits that it did, in the summer of 1949, change from what is commonly known as manufactured gas to propane gas but that the quality of said gas was the same and this defendant denies that the manufactured gas was not highly explosive and further denies that the propane gas was approximately twice as dangerous as the manufactured gas Answering Paragraph 5, this defendant shows that before making said change in the type of gas used and furnished its customers, this defendant did adjust the various gas appliances of its customers, in the summer of 1949, including the gas hot-water heater of the plaintiff, by reducing the orifice and defendant shows that at the time said gas hot-water heater was adjusted the same was properly adjusted and was tested and worked properly. Defendant denies Paragraph 11 as plead, and further answering said paragraph says that at no time since the summer of 1949 when defendant properly adjusted said gas hot-water heater has any of defendant's employees, agents or servants done any work on or adjusted the said appliance referred to."
The defendant filed the following amended answer, which was allowed subject to demurrer: "Defendant shows that the plaintiff herein was guilty of carelessness and negligence in undertaking to relight said pilot light knowing that the same had been extinguished and without knowing how long the same had been extinguished and without first determining whether or not there was any gas in or around the heater or on the floor sufficient to cause an explosion, and such negligence and carelessness of the plaintiff under the circumstances was the sole proximate cause of the plaintiff's injuries, and for that reason plaintiff should not be allowed to recover against this defendant. Defendant further shows that even thought it may have been guilty of negligence as charged, which the defendant emphatically denies, that nevertheless the plaintiff could have by the exercise of ordinary care avoided the consequences of the defendant's negligence in that after ascertaining that the pilot light on said burner has been extinguished he should have taken every precaution to ventilate said basement in order to dissipate any gas that may have accumulated therein or should have called upon the defendant, City of Albany, and its employees to relight said burner which would have been done in a safe manner by the employees of this defendant. Since the plaintiff could have by the exercise of ordinary care for his own safety avoided the injuries to himself, plaintiff is not entitled to recover from this defendant. Defendant further shows that the plaintiff herein was guilty of carelessness and negligence in undertaking to relight said pilot light knowing that the same had been extinguished and without knowing how long the same had been extinguished and without first determining whether or not there was any gas in or around the heater or on the floor sufficient to cause an explosion, and such negligence and carelessness of the plaintiff was at least equal to, if not greater than, any negligence that the defendant may have been guilty of in said transaction, and this being true the plaintiff is not entitled to recover against this defendant. Defendant further shows that the plaintiff in this case was under the duty to exercise ordinary care for his own safety on the occasion in question, and that there was printed on said heater certain instructions with respect to relighting said pilot light and such instructions required the person relighting the heater to turn off all gas and wait at least five minutes before attempting to relight said heater, and defendant shows that if the plaintiff in this case had complied with those instructions, the explosion would not have occurred, and for that reason plaintiff was guilty of a lack of ordinary care on the occasion in question which was the proximate cause of his injuries."
The defendant filed the following general and special demurrers: "The same [petition] sets forth no cause of action either legal or equitable in favor of the plaintiff and against the defendant. Said petition sets forth no duty on the defendant to inspect the gas water heater and pipes and vents connected therewith. Said petition affirmatively shows that said gas water heater referred to in said petition was owned and controlled by the plaintiff at all times prior to the explosion referred to in said petition. Said petition affirmatively shows that the defendant merely furnished gas to the plaintiff's premises and to the appliances installed on said premises and there are no allegations in said petition alleging or showing any duty on the defendant to inspect said appliances and it affirmatively appears from the allegations of said petition that defendant was not responsible for the condition of said gas water heater. There are no allegations set forth in said petition charging the defendant with actual or constructive knowledge on its part of the defective or dangerous condition of the gas water heater referred to therein. Defendant demurs specially to the following language in Paragraph 2: `who cause the said gas to be distributed through mains and pipe lines to different residences in Albany, Georgia, including the residence of plaintiff, for certain considerations in money,' on the ground that said is too vague and indefinite to apprize the court of the charge made or to enable the defendant to prepare its defense in that the `certain considerations in money' are not set forth. Defendant demurs specially to the following language in Paragraph 4: `defendant changed the kind and quality of the gas furnished to its customers in the City of Albany, from manufactured gas, which was not highly explosive, to a propane gas, which was approximately twice as dangerous as manufactured gas', on the ground that the same is too vague and indefinite to apprize the court of the charge made or to enable the defendant to prepare its defense in that the constituent qualities of the gas are not set forth nor described nor is it shown how or in what manner the said gas is twice as dangerous as manufactured gas. Defendant demurs especially to the following language in Paragraph 7 of plaintiff's petition: `On June 1, 1951, about the hour of 9 o'clock, a. m., plaintiff attempted to light the pilot light of the gas hot-water heater, which had ceased to burn,' in that it is not alleged or stated in said language or elsewhere in said paragraph why the plaintiff attempted to light said pilot light, nor is there any language alleging why the said pilot light, nor is there any language alleging why the said pilot light had ceased to burn, and the allegation as plead is too vague and indefinite and insufficient to charge defendant with any actionable negligence. Defendant demurs specially to Paragraph 9, on the ground that same set forth no part of any element of a cause of action in favor of the plaintiff and against the defendant, and the defendant further demurs specially to said paragraph on the ground that the type and make of the heaters plaintiff is alleged to have used is not shown, nor is it alleged when said heaters were replaced as they became worn and inefficient, nor is it alleged in said paragraph or elsewhere in said petition when the heater in question was purchased and installed by the plaintiff. Defendant demurs specially to Paragraph 10 on the ground that same set forth no part of any element of a cause of action in favor of the plaintiff and against this defendant, it not being alleged in said paragraph or elsewhere in said petition that the defendant had any knowledge of the fact that said appliance was in good condition and safe for the use intended or that it was not in good condition and unsafe for the use intended, and on the further ground that it is not shown in said paragraph or elsewhere in said petition that there was any duty on the defendant to ascertain and keep itself informed of the condition of said appliance. Defendant demurs specially to Paragraph 11 on the ground that it is not shown when the said defendant, through its agents, servants and employees, worked on said gas heater after the summer of 1949, and the charge made in said paragraph is too vague and indefinite, and that, in the negative manner, it alleges or attempts to infer that the defendant had worked on said appliance since the summer of 1949 but does not specially so alleged and does not name the agents, servants and employees of the defendant who did said work nor the time or times at which said work was done. Defendant demurs specially to Paragraph 12 on the ground that the `gas valve' is not sufficiently described and that the type of valve mentioned therein is not named, there being no allegation in said paragraph or elsewhere in said petition that said gas value mentioned therein could not be adjusted for the use of propane gas. Defendant demurs specially to Paragraph 13 on the ground that it is not alleged in said paragraph or elsewhere in said petition that there is any duty on the defendant to have installed such a device as described in said paragraph, and said paragraph in said petition is at variance with the other allegations in said petition in that said petition affirmatively shows that such appliance was equipped with an automatic shut-off or control. Defendant demurs specially to Paragraph 14, on the ground that same sets forth no part of any equitable or legal cause of action in favor of the plaintiff and against the defendant, and on the further ground that same is too vague and indefinite to apprize the court of the charge made or to enable the defendant to prepare its defense, and further, it is not shown in said paragraph or elsewhere in said petition when and at what time the said defendant is alleged to have undertaken to adjust it for the use of the new gas, nor is it alleged through what agent or employee defendant had knowledge of and familiarity with the construction, condition and character of said appliance. Defendant demurs specially to Paragraph 15 on the ground that same sets forth no part of any cause of action either legal or equitable in favor of the plaintiff and against the defendant, and the same is irrelevant and immaterial, it not being alleged in said paragraph or elsewhere in said petition that defendant had any knowledge of the fact that the pilot light had gone out at times and that plaintiff had lighted it without the slightest sign of an explosion, nor is any charge made in said paragraph or elsewhere in said petition that the condition of the heater at the various times plaintiff alleges it was lighted was any different than its condition on the occasion in question. Defendant demurs specially to Paragraph 17 on the ground that same set forth no part of any element of a cause of action in favor of the plaintiff and against the defendant and affirmatively shows that, the plaintiff being inexperienced in the handling of gas appliances, plaintiff's act in attempting to light said pilot was so contributorially negligent that [he] would not, in any event, be entitled to recover, and defendant demurs especially to the following language in said paragraph: `and having no warning of its presence from any odor', on the ground that same is too vague and indefinite to apprize the court of the charge made or to enable the defendant to prepare its defense, said allegation being insufficient to charge any legal negligence against the defendant, it not being alleged anywhere in said petition that the defendant was negligent in not odorizing said gas. Defendant demurs specially to Paragraph 18 on the ground that the same is too vague and indefinite to apprize the court of the charge made or to enable the defendant to prepare its defense in that it is not alleged in said paragraph nor is it shown elsewhere in said petition that there was any duty on the defendant to apprize the plaintiff of the alleged increased risk in dangers in the use of the new gas, nor is it alleged in said paragraph or elsewhere in said petition what type of warning the defendant failed to give to said plaintiff, and the allegation that the explosion would not have occurred had the manufactured gas been in the conduits and pipes in plaintiff's home, is a mere conclusion of the pleader with no facts alleged upon which to base such conclusion and is wholly insufficient to charge this defendant with negligence in that respect. Defendant demurs specially to Paragraph 28 and each subparagraph thereof on the ground that the same are too vague and indefinite, there being no facts alleged in said paragraph, its subparagraphs or elsewhere in said petition to sustain said allegations, and defendant demurs specially to subparagraphs (a), (b), (c), and (d) on the ground that there are no facts set forth or alleged in said paragraphs upon which to base said allegations of negligence as contained in each subparagraph."
The defendant renewed its demurrers to the petition as amended, and filed the following additional demurrers: "Defendant demurs specially to Paragraph 18 (c), on the grounds that same is irrelevant and immaterial and constitutes no element of any cause of action in favor of plaintiff and against the defendant. Defendant demurs specially to the following language in Paragraph 18 (d): (1) `acting under the defendant's authority, and within the scope of their employment, did assume control of said water heater in the summer of 1949 in connection with it conversion operation', on the grounds that it is not shown how and in what manner said defendant assumed control of said water heater, nor how long defendant remained in control of said water heater; and (2) `defendant was under a duty to inspect at said time said heater and its operation for any defects, to determine whether the same could be safely used for the consumption of said new gas', on the grounds that same is a conclusion of the pleader, no facts being alleged upon which to base said conclusion, and is irrelevant and immaterial and constitutes no element of any cause of action in favor of plaintiff and against the defendant; it not being alleged in said paragraph or elsewhere in said petition that said defendant failed to inspect said heater at the time of the conversion. Defendant demurs specially to Paragraph 18 (e) on the grounds that same constitutes no element of any cause of action in favor of plaintiff and against the defendant; said allegations contained therein are mere conclusions of the pleader with no facts alleged upon which to base such conclusions, said allegations being at variance with and contradictory to other allegations in the petition which affirmatively show that said water heater functioned properly and safely from the summer of 1949 until June 1, 1951; and defendant also demurs specially to the following language in said Paragraph 18 (e), "said heater . . . did not contain thereon a safety device that would have automatically shut off the flow of all gas into the heater in the event of a pilot light failure", on the grounds that said charge as made is too vague and indefinite to apprize the court of the charge made or to enable the defendant to prepare its defense, in that it is not alleged whether the defendant is being charged with failure to install any safety device at all on said heater or whether it is being simply charged with negligence in failing to install [a] safety device on the pilot light of said heater. Defendant demurs specially to Paragraph 18 (g), on the grounds that same is irrelevant and immaterial and as plead same constitutes no element of any cause of action in favor of plaintiff and against the defendant, in that said allegation is at variance with and contradictory to other allegations in the petition which affirmatively show that said water heater functioned properly and safely from the summer of 1949 until June 1, 1951, and on the further ground that it is not alleged in said paragraph or elsewhere in said petition what "different properties and characteristics" contained in the new gas were not contained in the old gas. Defendant demurs specially to Paragraph 18 (h), on the grounds that same is a mere conclusion of the pleader with no facts alleged upon which to base said conclusion, and is irrelevant and immaterial, and said allegation is at variance with and contradictory to other allegations in the petition which affirmatively show that said water heater functioned properly and safety from the summer of 1949 until June 1, 1951. Defendant demurs specially to Paragraph 18 (i), on the grounds that same is too vague and indefinite to apprize the court of the charge made or to enable the defendant to prepare its defense, in that it is not shown how and in what manner said water heater was serviced; nor is it alleged in said paragraph or elsewhere in said petition what repairs, if any, were made on said heater. Defendant demurs specially to Paragraph 18 (j), on the grounds that the ordinance referred to therein is not attached to said petition, nor is the substance of said ordinance set forth in said paragraph or elsewhere in said petition. Defendant demurs specially to Paragraph 18 (k), on the grounds that same is a mere conclusion of the pleader with no facts alleged upon which to base said conclusion, and a copy of said ordinance is not attached to said petition, nor is the substance of same set forth in said paragraph or elsewhere in said petition. Defendant demurs specially to Paragraph 18 (l), on the grounds that same is a mere conclusion of the pleader with no facts alleged upon which to base such conclusion, it not being alleged when and where defendant's agents, servants and employees took full charge and control of plaintiff's automatic gas appliance, nor is it alleged how and in what manner said automatic gas appliance was changed and adjusted, nor what repairs were made to same, nor how and in what manner said defendant's agents, servants and employees failed to comply with said ordinance. Defendant demurs specially to the following language in Paragraph 18 (m): (1) `Defendant in making said charge and adjustment in said appliance was under a duty to protect the public and its customers from the increased hazard incident and occasioned by this change in its business from artificial to the heavier than air gas', on the grounds that same is a mere conclusion of the pleader with no facts alleged upon which to base said conclusion, and as plead same constitutes no element of any cause of action in favor of plaintiff and against defendant, and constitutes no actionable negligence, and on the further ground that it is not alleged in said sentence, or elsewhere in said petition, what constitutes the `increased hazard incident and occasioned by this change'; and (2) `Defendant thus owed the public duty to its customers to effect said change in a reasonably safe manner, and the public and your petitioner were authorized to rely upon and rest secure in the undertaking of defendant to accomplish said changes, and petitioner did rely on defendant's prudent discharge in this undertaking in its duty to save petitioner from harm in the performance of this duty', on the grounds that same is a mere conclusion of the pleader with no facts alleged upon which to base such conclusion, and on the further ground that same does not constitute actionable negligence and is no element of any cause of action in favor of plaintiff and against the defendant, and it is not shown how and in what manner said change was not made in a reasonably safe manner. Defendant demurs specially to the following language in Paragraph 18 (n): (1) `That the explosion and resultant injuries to plaintiff was caused through and by the carelessness and negligence of defendant and its agents and employees, in its failure to comply with said ordinance', on the grounds that said ordinance is not attached to said petition, nor is the same set forth in substance in said paragraph or elsewhere in said petition; and (2) `attach said safety device so as to prevent the flow of gas into the heater upon the failure of the pilot light to function, and leaving the heater in this condition was extremely dangerous and entirely unknown to petitioner', on the grounds that it is not shown how or in what manner said safety device would prevent the flow of gas into the heater, and the charge as made is too vague and indefinite to apprize the court of the charge made or to enable the defendant to prepare its defense, in that it is not specifically alleged whether the charge made is to the effect that said safety device would prevent the flow of gas into the main burner or simply prevent the flow of gas from the pilot light itself, nor is it shown how and in what manner leaving the heater in the condition alleged was extremely dangerous. Defendant demurs specially to Paragraph 18 (o), on the grounds that same is a mere conclusion of the pleader with no facts alleged upon which to base such conclusion, said allegations being at variance with and contradictory to other allegations in the petition which affirmatively show that said water heater functioned properly and safely from the summer of 1949 until June 1, 1951, and on the further ground that same is too vague and indefinite to apprize the court of the charge made or to enable the defendant to prepare its defense, in that it is not pointed out in said paragraph or elsewhere in said petition what defects the defendant is charged with having failed to adjust, nor is it shown in said paragraph or elsewhere in said petition what said `improper adjustment of the entire condition of said heater' consisted of; and the charge in said paragraph that `petitioner's injuries were occasioned by the failure of the defendant and its agents to make proper inspection and adjustment thereof, and these failures and defaults did produce said explosion and resultant injuries', is too vague and indefinite to apprize the court of the charge made or to enable the defendant to prepare its defense, in that it is not alleged in said language or elsewhere in said paragraph or petition what were the existing defects at the time and place charged, nor how and in what manner defendant could have discovered the existence of said alleged defects."
The court overruled all demurrers to the petition as amended, to which the defendant excepted pendente lite. The jury found for the plaintiff; the defendant's motion for a new trial was overruled, and the defendant excepts to the overruling of the demurrers and the motion for new trial.
1. The court did not err in overruling the general demurrer to the petition as amended. It set forth a cause of action on at least two theories: (1) the failure by the defendant to equip the plaintiff's heater with a 100% shut-off safety pilot; and (2) the city's failure to warn the plaintiff of the danger involved in the use of heavier-than-air gas in an appliance not equipped with a 100% shut-off safety pilot. The allegations of the petition are that the city was engaged in converting appliances in its own interest as well as that of its customers, and the ordinary rule as to the non-liability of a supplier of gas beyond the meter and service pipes does not apply. Maynard v. Atlanta Gas Light Co., 24 Ga. App. 5, 6 ( 99 S.E. 472), is not authority to the contrary. There are two distinctions between that case and this one. The gas company in that case was not making an inspection for its own benefit, and the employees of the company in that case were not authorized to make an inspection. In this case, it was not necessary for the plaintiff to allege further that the defendant had actual knowledge that there was not a 100% shut-off safety pilot on the heater. The fact that the heater had functioned properly from the time of the conversion by the city in the summer of 1949 until June 1, 1951, would not relieve the defendant as a matter of law from the alleged duties to install a safety shut-off or warn against the danger of not having one installed for the reason that the purpose of the shut-off is to stop the escape of gas, whether its escape is caused by the fault of the supplier of the gas or the defectiveness of the heater. For liability of a supplier of gas in similar cases see: Chisholm v. Atlanta Gas Light Co., 57 Ga. 29; Bray v. Atlanta Gas Light Co., 46 Ga. App. 629 ( 168 S.E. 96); House v. Wichita Gas Co., 137 Kan. 332 ( 20 P.2d 479); Womack v. Central Ga. Gas Co., 85 Ga. App. 799 ( 70 S.E.2d 398); Atlanta Gas Light Co. v. Hodges, 47 Ga. App. 153 ( 170 S.E. 87); Hodges v. Atlanta Gas Light Co., 75 Ga. App. 105 ( 42 S.E.2d 244); Atlanta Gas Light Co. v. Johnson, 76 Ga. App. 413 ( 46 S.E.2d 191); Atlanta Gas Light Co. v. Davis, 80 Ga. App. 377 ( 56 S.E.2d 140); Detroit City Gas Co. v. Syme, 109 Fed. 2d 366; Central Arizona Light P. Co. v. Bell, 49 Ariz. 99 ( 64 P.2d 1249); Heller v. Equitable Gas Co., 333 Pa. 433 ( 3 A.2d 343), 138 A.L.R. 888, note; Newill v. Atlanta Gas Light Co., 48 Ga. App. 226 ( 172 S.E. 232). Under the allegations of the petition, the plaintiff was not as a matter of law barred by his own negligence.
2. The court did not err in overruling the special demurrers as against the attacks made therein. The ruling on the general demurrer covers most of the important contentions on the special demurrers. Mention will be made of one special demurrer, to wit, the one complaining of the failure of the plaintiff to set forth the entire ordinance of the city requiring a 100% shut-off safety pilot. This was the only objection by demurrer to the allegation setting forth the ordinance. The plaintiff introduced a certified copy of a part of the ordinance, to which the defendant objected on the ground that by reason of the other parts of the ordinance, which the defendant's counsel quoted, the ordinance only required the 100% safety shut-off on new appliances. It thus appears that the defendant knew what the whole ordinance consisted of and could have easily introduced the whole ordinance in evidence to show, if it could, that its contention was correct. So we think that the overruling of this special demurrer was harmless to the defendant. See Scott v. Holden, 69 Ga. App. 615, 616 ( 26 S.E.2d 456); Steed v. Harris, 52 Ga. App. 581 ( 183 S.E. 847).
3. The plaintiff introduced in evidence a certified copy of a part of an ordinance of the City of Albany, as follows: "An ordinance entitled An ordinance creating a Board of Plumbing Examiners, adopting a plumbing and gas fitters code: regulating plumbers and gas fitters: providing specifications for work and material: providing penalties: and for other purposes. Be it ordained by the Board of City Commissioners of the City of Albany, Georgia, and it is hereby ordained by authority of same: Article XVI, special rules and regulations governing gas connections, piping and appliances. * * * Section XIV. Shut-off safety pilots. All automatic gas appliances shall be equipped with 100 percent shut-off safety pilots." The defendant objected to the ordinance on the following grounds: "That it is simply a portion of an ordinance dealing with gas appliances — the portion of the ordinance, as typed, is correct and it is a correct certified copy of that particular portion of the ordinance — we object because other relevant sections of the ordinance are not at the same time introduced — he can not pick out and introduce one section and not introduce the others. In support of our objection we cite section 10, under which the size of flues is shown, and under section 12 it sets out when old appliances are replaced with new appliances that the new appliances must be installed in accordance with the terms of this ordinance. We take the position that means and a proper construction of the ordinance means that it does not apply to old appliances, but, when old appliances wear out and are replaced, then the ordinance and the provisions of section 14 do apply, and, for all of these reasons, we object to the portion of the ordinance offered."
It was not error to admit the portion of the ordinance set forth above over the objections urged. If the ordinance did contain the other provisions stated by counsel for the defendant in his objection, it does not necessarily follow that the ordinance required only that new installations of appliances be equipped with 100% safety shut-offs. In the first place, it does not appear that there are not still other portions of the ordinance which were not introduced in addition to those introduced and those indicated by the defendant's objections to the introduction of the part above referred to. In the second place, the evidence shows that the City of Albany had decided to change the gas which it supplied to its citizens from lighter-than-air gas to a heavier-than-air gas, and that the ordinance was passed in contemplation of the change and because of the planned change and for the purpose of rendering safe the use by its customers of the new gas to be supplied, whether old or new appliances were used. While there is no evidence or testimony specifically showing that the ordinance was passed in contemplation of the conversion of the gas system, there is no evidence that it was not so passed, and the only reasonable inference is that it was passed in contemplation of the conversion of the gas system from a lighter-than-air gas to a heavier-than-air gas. If there had been no plan to so convert the gas system, there would have been no occasion for such an ordinance, as the safety shut-off pilot was not a necessary safety measure in the use of a lighter-than-air gas. Furthermore, as stated in division 2, the balance of the ordinance could have been introduced in evidence by the defendant, if it had so desired. In the absence of any other attack on the ordinance, we hold that its purpose was to require plumbers and gas-fitters to equip automatic gas appliances with 100% shut-off safety pilots either when they installed a new appliance which was not already so equipped or when they converted an old appliance which did not have such safety equipment from a lighter-than-air gas appliance to a heavier-than-air appliance. Otherwise, after the conversion by the city of its gas system to a heavier-than-air gas, only those customers who installed new gas appliances after the conversion would be safe in the use of the gas. This answer to the city's argument as to what the ordinance meant also answers the contention that the ordinance requirement applied to the owners of the appliances. If such were the case, the ordinance would have protected only the owners who bought new appliances. The remainder of the customers would have been allowed to use their old and unsafe appliances and live in constant danger. The ordinance had for its purpose the requirement that the safety measures be taken by competent mechanics, experienced in their calling, and not the requirement that appliance owners should protect themselves, when many of them were unaware of the danger that confronted them. As to the construction of municipal ordinances, in 37 Am. Jur. 827, § 187, it is stated: "They should be construed reasonably, in connection with the purposes they are intended to serve, so as to give reasonable effect to the objects sought to be accomplished. A construction of police ordinances should not be adopted which is supertechnical and results in defeating instead of effectuating the obvious purpose of their enactment. Ordinances must be read and construed as a whole or as an entirety in the light of circumstances existing at the time of their adoption, with proper regard for the consequences which would result from giving to them a particular meaning; the courts must keep in mind the object or purpose of the enactments, and the evil consequences which the lawmakers intended to guard against by their adoption. It has been held that there can be no intent in an ordinance not expressed in its words, but it has also been held that that which is implied in an ordinance is as much a part of it as that which is expressed." The preamble may be considered in this case on the question as to whom it applied. 37 Am. Jur. 831, § 192. The argument is also made that the city could not violate its own ordinance. It is true that the passage of an ordinance is a governmental function, but it is too plain to merit much discussion that, when a city passes such an ordinance and violates it in the capacity (as plumber and gas fitter) of the persons at whom the ordinance was aimed, the city is liable for the same consequences as the individuals sought to be regulated. The city was bound by its ordinance in exercising a ministerial function, as it was in this case, whether it could or would prosecute itself criminally for a violation thereof. 38 Am. Jur. 300, § 603; Everly v. Adams, L.R.A. 1915E, 448-50; Code § 69-301; O'Brien v. Greenburgh, 239 App. Div. 555, 268 N. Y. S. 173, aff'd. in 266 N.Y. 582 (195 N.E.. 210); 37 Am. Jur. 729, § 115. The City of Albany strongly contends that certain Missouri cases correctly hold that a municipality is not bound by its own ordinances. Even if the cases cited do hold as contended, we do not think that such rulings are sound as to ordinances such as we have in this case, especially when the municipality assumes the role of one sought to be governed by the ordinance in a business capacity and not a governmental capacity or a corporate ministerial capacity. The principal case cited is Bean v. City of Moberly, 350 Mo. 975 ( 169 S.W.2d 393). In that case an ordinance required persons making excavations in or near streets, sidewalks, or driveways to enclose them with barriers and place red lights at ends, and the city was charged in the petition with negligence per se in not complying with the ordinance in its repair of the streets. It is doubtful to us whether this ordinance applied to the city, as it was already under a common-law duty to keep its streets safe. But assuming that it was broad enough to apply to the city, we are faced with the question whether the city could be charged with negligence per se under the facts. In considering the soundness of this case, we might advert to the fact that in repairing its streets the city was exercising a ministerial corporate function and not a business-for-profit function, which conceivably might make some difference. However, the Missouri court based its ruling on the rulings in two other cases. The court in the Bean case stated that it had "not discovered a case in which it was specifically sought to impose liability on a municipality for failure to observe its own ordinances in the manner attempted," but stated that two cases, cited below, indicated the applicable principle. We think it was at this point that the opinion in the Bean case turned in the wrong direction, in that in our opinion neither case supports the proposition that a municipality is never liable for the failure to comply with its own ordinances. The first decision cited by the Missouri court in the Bean case as indicating the applicable principle was Mehan v. City of St. Louis, 217 Mo. 35 ( 116 S.W. 514). In this Mehan case, piles of lumber were left in an alley adjacent to a fire station. A boy walking through the alley stepped on a nail in one of the boards and was injured. One of his assignments of negligence as to the city was that the boards and nails were permitted in the alley in violation of an ordinance. It was held that the city was not liable for injuries to private persons resulting from a failure to enforce its police regulations. The second decision cited in the Bean case was Sallee v. City of St. Louis, 152 Mo. 615 ( 54 S.W. 463). We think the ruling in the Sallee case is to the same effect. In that case Sallee sued the city to recover damages which he contended he received because of the negligence of the defendant city in allowing a dead horse to remain in one of the public streets of the city. A city ordinance was introduced in evidence, which provided that the city contractor should remove dead animals within six hours of daylight after notice, under penalty, and that no one else should interfere with it. This ordinance was not aimed at the city, but at a particular employee, and the court held that the city was not liable for the failure "to enforce an enactment of its own." So, in our opinion, the ruling in the Bean case is not supported by the authorities cited to uphold it. But if we are wrong in these conclusions we think that the ordinance in the instant case stands on a different footing for reasons which are apparent from what is stated in the opinion. Von Der Haar v. City of St. Louis (Mo.App.) 226 S.W.2d 376, followed the Bean case.
4. In ground 27 of the motion for new trial, the defendant assigns error on the exclusion from evidence of various news stories and advertisements appearing in the Albany Herald concerning the conversion of the gas system of Albany from lighter-than-air gas to heavier-than-air gas. All these newspaper notices did was to give notice of the intended conversion and warn gas users not to operate gas appliances until the city had converted the appliances for use of the new type gas. The notices contained no information as to the advisability or necessity of a 100% safety shut-off pilot. There was no evidence that the plaintiff saw or read any of the notices. Even if he had, in the absence of evidence showing that he converted his heater, he had a right to assume that the city had properly converted his heater under the facts appearing. There was no error in excluding the newspaper notices.
5. Ground 29 of the motion for new trial assigns error on the charge of the court to the effect that a violation of the quoted ordinance by the city in the conversion of the plaintiff's appliance would be negligence per se. This ground is without merit for the reasons stated in division three.
6. For the reasons stated in division three, it was not error for the court to refuse to charge as requested that the city was under no duty under said ordinance to equip the plaintiff's heater with a 100% safety shut-off pilot in the process of converting the heater by the city, under the circumstances appearing in this case.
7. Ground 35 complains of the charge of the court as to damages recoverable. The excerpt from the charge is ten pages in length. The exceptions are: (1) that the charge is highly argumentative and by repetitious statements unduly emphasizes the damages claimed; (2) that the charge was confusing, especially as to the right of the plaintiff to recover for impaired capacity to labor on one hand and impaired earning capacity on the other; and (3) that the evidence was insufficient to authorize a recovery for impairment of earning capacity. There is no merit in this ground. We have read the charge and the evidence, and do not think the charge was erroneous or harmful for the reasons assigned. We do not think it will serve any useful purpose to set out the charge excepted to.
8. There are numerous assignments of error on the admission of evidence introduced for the purpose of showing common-law negligence on the part of the defendant, and on charges of the court on that subject. We have examined these assignments of error and, under the facts of this case, there was no harmful or prejudicial error in any ruling or charge complained of, for the reason that the evidence demanded the finding that the city was guilty of negligence per se in violating the pleaded ordinance. The grounds of the amended motion not otherwise ruled on and discussed are without merit.
9. The evidence authorized the verdict. Without quoting from the voluminous record of evidence, suffice it to say that the evidence demanded a finding that the city violated the ordinance, and the jury was authorized to find that such violation was the proximate cause of the plaintiff's injuries; and no circumstances were proved which demanded a finding that the plaintiff was barred by his own negligence from recovery. The damages found were well within the range of the evidence. The general grounds of the motion were properly overruled.
The court did not err in overruling the general and special demurrers to the petition and the motion for new trial as amended.
Judgments affirmed. Sutton, C. J., and Worrill, J., concur.