Opinion
36291.
DECIDED OCTOBER 24, 1956. REHEARING DENIED NOVEMBER 19, 1956.
Tort; homicide by fire, nonsuit, etc. Before Judge Whitman. Fulton Superior Court. April 10, 1956.
George D. Stewart, Julian E. Gortatowsky, Willingham, Gortatowsky Morrison, J. E. B. Stewart, for plaintiff in error.
Hurt, Gaines Baird, J. Corbett Peek, Jr., contra.
The court did not err in sustaining the general demurrer to Count 2 of the petition. The court erred in sustaining the general demurrer to Count 3 of the petition. The further proceedings in the case were therefore nugatory.
DECIDED OCTOBER 24, 1956 — REHEARING DENIED NOVEMBER 19, 1956.
Mrs. Martha Smith Guthrie, formerly Mrs. Martha Smith Glow, sued Robbins Home Improvement Company, Inc., for the death of her former husband, William A. Glow. The petition contained three counts.
Count 1 alleged in substance the following facts. The plaintiff is the widow of William A. Glow whose death was wrongfully and wilfully caused by the defendant on November 6, 1952. At about 10 a. m. on November 6, 1952, the plaintiff's husband visited his friend, Huey A. Truelove, Jr., at Mr. Truelove's home located in Atlanta. Mr. Truelove's home was a small bungalow consisting of two bedrooms, bath, living room, dining room and kitchen. The defendant was engaged in the business of repairing, altering and improving residential buildings. It was the defendant's usual, customary and standing practice to do this work without requiring the occupants of the houses to move and while the occupants lived in the houses as their homes. On or about October 29, 1952, the defendant, acting through his duly authorized agent, Harry Gould, made a contract with Mr. and Mrs. Truelove whereby the defendant agreed to improve the Truelove home by replacing the floors in the living room and the two bedrooms with finished hardwood flooring and covering the floors of the dining room and kitchen with tile. Pursuant to the defendant's customary practice, it was understood between the Trueloves and the defendant that the Truelove family would continue to live in the house as their home while the defendant was performing the contract, but the defendant had the right to move the Trueloves' furnishings around in the house from one room to another and take exclusive possession over one or several rooms in which and while the defendant was doing his work in performance of the contract. Prior to Mr. Glow's arrival at the Truelove home, the defendant, between 9 and 9:30 a. m. on November 6, 1952, acting by and through Mr. Al Robbins, its agent and officer, who was acting in the course of his employment in carrying out said contract, directed one laborer named Raymond Perry, as to the manner in which Perry should move the two beds and several other pieces of furniture in each of the two bedrooms, as to the manner in which Perry should sand the hardwood floors the defendant had installed in the two bedrooms and as to the manner in which Perry should apply the liquid sealer to the floors in said bedrooms, and assumed control over said Perry as its agent and servant. Raymond Perry, acting within the course of his employment, sanded the newly installed floors in the two bedrooms and applied with a brush the liquid sealer or filler to the floor of the back bedroom and recklessly and in wanton disregard of the safety of the plaintiff's husband applied the liquid sealer to one-half of the floor of the front bedroom, when the plaintiff's husband received critical burns. At the time the husband received these burns, the defendant was in exclusive control of the two bedrooms where the fire, which started by the vapors from the inflammable sealer coming in contract with the fire in the front bedroom hearth, suddenly flashed throughout the house, including the living room where the plaintiff's husband was located. At the time the plaintiff's husband arrived at Mr. Truelove's home, the defendant had moved furniture into the living room and other rooms of the house but the television set in the living room stood connected and was in operating condition. The liquid filler or sealer which the defendant recklessly and wantonly applied to the bedroom floors was a mixture of Blake Clear Wood Lacquer Sanding Sealer and Blake Lacquer Thinner. This liquid filler had a flash point below 25° Fahrenheit. It was highly volatile and extremely inflammable and dangerous to life and property when used near a fire in a poorly ventilated building, and the defendant knew that it was dangerous to apply inflammable and volatile liquids to floorings near an open hearth fire in a poorly ventilated house. November 6, 1952, was a chilly day. On said day, prior to the arrival of Al Robbins and Raymond Perry at the Truelove home, Mr. Truelove had built and fed a fire in the hearth in the front bedroom and this fire remained in the hearth at the time the plaintiff's husband was fatally burned. Neither the plaintiff's husband nor Mr. Truelove knew that the liquid material which Perry was applying to the floor and the fumes therefrom were inflammable. The defendant, acting through Perry, while recklessly and wantonly applying said highly inflammable and volatile liquid filler to the floors, recklessly and wantonly left the outside front and back doors and the windows in the house, including those in the two bedrooms, closed, and recklessly and wantonly failed to put out the fire which was in the front bedroom hearth. The defendant, acting through Raymond Perry, left the door between the front bedroom and the living room open and the fumes from the highly volatile liquid substances the defendant was applying to the floors spread throughout the atmosphere of the house causing the atmosphere in the living room to be highly inflammable. These inflammable fumes first caught fire in the front bedroom and before the plaintiff's husband had a chance to escape from the house, the atmosphere in the living room burst into flame and the plaintiff's husband was fatally burned. On November 6, 1952, the following pertinent portions of the Fire Prevention Ordinance of the City of Atlanta were in full force and effect: "Section 902. Classification of flammable liquids. For the purpose of this ordinance, flammable liquids are divided into three classes, according to the flash point as follows: Class I. Liquids with a flash point below 25 degrees Fahrenheit (— 4 degrees Centigrade) closed cup tester. Class II. Liquids with flash point above that for Class I and below 70 degrees Fahrenheit (21 degrees Centigrade) closed cup tester. Class III. Liquids with flash point above that for Class II and below 200 degrees Fahrenheit (93.3 degrees Centigrade) closed cup tester. Section 923. Ventilation. Rooms in which Class I and II liquids are used in open vats, pans or other vessels, or in which Class I, II and III liquids are heated or otherwise treated in such manner as to produce flammable vapor, shall be well ventilated. Section 928. Lighting shall be by electricity. Flammable liquids shall not be drawn nor handled in the presence of open flame or fire, but may be drawn and handled when lighting is by incandescent electric lamps installed in compliance with the `National Electrical Code.'" The defendant failed to exercise ordinary care in the following particulars: "(a) In applying a volatile and inflammable liquid substance to the floors of a room, the windows of which were closed and near a fire in the hearth of said room. (b) In failing to open the windows of the house, including those of the bedrooms, while applying a highly volatile and inflammable liquid substance to the floors. (c) In failing to close the door between the front bedroom and the living room so as to prevent the inflammable vapors from the liquid substance from spreading throughout the atmosphere in the living room. (d) In failing to put out the fire in the front bedroom hearth before applying the volatile and inflammable liquid substance to the flooring in the front bedroom. (e) In using a highly inflammable and volatile substance on the floors in a home. (f) In failing to warn Mr. Truelove and plaintiff's husband of the danger of a flash fire from the use of the highly volatile and inflammable liquid substance. (g) In failing to warn plaintiff's husband and Mr. Truelove that the vapors from the liquid substance were highly inflammable. (h) In violating Section 923 of the Fire Prevention Ordinance of the City of Atlanta which amounted to negligence per se. (i) In violating Section 928 of the Fire Prevention Ordinance of the City of Atlanta which amounted to negligence per se. (j) In failing to exercise ordinary care while applying the inflammable and volatile liquid substance to the floors of Mr. Truelove's home." The petition further alleged that the plaintiff's husband was a guest in Mr. Truelove's home at the time and that the defendant knew of his presence there.
Count 2 recited the same facts as to the events which occurred as did Count 1 except that in Count 2 the relationship between the defendant and Raymond Perry was not alleged to be that of employer and employee. Count 2 is predicated on the basis that the defendant employed Earl Byrdsong as an independent contractor to sand and finish the floors and that Perry was an employee of Byrdsong. Count 2 further alleged that Byrdsong and Perry were ignorant, uneducated men; that the defendant knew these facts; that the defendant knew the liquid materials Byrdsong used to seal and finish the floors were highly volatile and inflammable, and knew, or should have known, that the fumes from these materials would spread throughout the house and would create a dangerous fire hazard; that the defendant, acting through its agent Al Robbins, wilfully and wantonly left the Truelove home with Byrdsong and they both left Perry to perform the dangerous undertaking described; that the defendant wilfully and wantonly failed to instruct Byrdsong or Perry, or both of them, to open the windows and put out the fire in the hearth before applying the volatile and inflammable liquid material to the floors; that the defendant knew that Byrdsong had not instructed Perry to open the windows and put out the fire prior to applying the material to the floors; that the defendant through Al Robbins was at the Truelove home at 9 a. m. on the morning of the fire to allow Mr. Truelove to select a certain colored tile and to exercise its authority as general contractor over the work it had agreed to do and remained at the Truelove home for twenty minutes, during all of which time Robbins discussed with Byrdsong and Perry the moving of the furniture and the sanding and finishing of the floors and told them to proceed with this work pursuant to the subcontract the defendant had entered into with Byrdsong; that while Al Robbins was on the premises the fire remained in the hearth in the front bedroom; that Robbins knew this fact and knew that all of the windows and outside doors to the house were closed and that the door leading from the front bedroom to the living room was open and that furniture was placed in the entrance of the living room. Count 2 did not refer to the Fire Prevention Ordinance of the City of Atlanta. The specific acts of negligence alleged in Count 2 were as follows: "(a) In failing to put out the fire in the front bedroom hearth. (b) In failing to inform Earl Byrdsong or Raymond Perry or both of them that it was dangerous to apply the highly volatile and inflammable filler to flooring in a room near a fire in a poorly ventilated house. (c) In failing to require either Earl Byrdsong or Raymond Perry or both of them to put out the fire in the front bedroom hearth. (d) In failing to warn Mr. Truelove of the danger to himself and visitors in his home in remaining in the house while Raymond Perry was applying the highly volatile and inflammable filler to the floors near a fire in a house, the windows of which were closed. (e) In failing to open the windows in the two bedrooms. (f) In failing to require either Earl Byrdsong or Raymond Perry or both of them to open the windows in the two bedrooms. (g) In allowing Earl Byrdsong or Raymond Perry or both of them to use a highly volatile and inflammable filler on floors near a fire in a house that was poorly ventilated. (h) In failing to instruct either Earl Byrdsong or Raymond Perry or both of them to keep the door between the front bedroom and the living room closed while applying the highly inflammable and volatile filler to the floor of the front bedroom. (i) In employing Earl Byrdsong and his helper, Raymond Perry, both known to be ignorant and uneducated, to sand and finish floors with inflammable materials in Mr. Truelove's home."
Count 3 alleged substantially the same as Count 2. The provisions of the Fire Prevention Ordinance of the City of Atlanta which were alleged in Count 1 were also alleged in Count 3. The contractual relationship between the defendant and Byrdsong which was alleged in Count 2 was also alleged in Count 3. Count 3 further alleged that the applying of the lacquer sanding sealer and the lacquer thinner and a mixture of these two liquids to floors in a residence near an open fire was an inherently dangerous undertaking to all persons in the residence; that the defendant and Byrdsong had knowledge of this, and that this dangerous undertaking involved duties nondelegable by an employer to an independent contractor and that the defendant was responsible for the failure of its contractor, Byrdsong, and Byrdsong's servant, Perry, while acting in the course of Perry's employment to exercise ordinary care to prevent injuries to the plaintiff's husband while the dangerous work was being done.
The court overruled a general demurrer to Count 1 but sustained general demurrers to Counts 2 and 3 and struck these counts from the petition. The case was tried under Count 1 and at the close of the plaintiff's evidence, the court granted a nonsuit.
The plaintiff excepts to the judgments sustaining the general demurrers to Counts 2 and 3 and to the granting of a nonsuit. The plaintiff also excepts to certain rulings of the court excluding evidence offered by the plaintiff.
1. The court did not err in sustaining the general demurrer to Count 2 of the petition. There are no allegations in this count to the effect that although the subcontractor and his servant were ignorant and uneducated they were incompetent; nor are there allegations that the defendant or its agents had any reason to believe that the subcontractor or his agent and employee intended to begin the work in question without properly ventilating the premises.
2. The court erred in sustaining the general demurrer to Count 3 of the petition. Count 3 alleged that the work was inherently dangerous to all persons in the residence and that the defendant and Byrdsong had knowledge of that fact, and that "this dangerous undertaking involved duties nondelegable by an employer to an independent contractor, etc." If the duties being performed by an independent contractor, for whatever reason, were not delegable to a subcontractor, whether they were dangerous or not, the subcontractor in law is to be regarded as the servant, employee or agent of the employer as principal contractor. The plaintiff cannot be penalized for alleging too much, if she did allege too much in alleging that the work was inherently dangerous to all in the house. When an owner contracts with a contractor for work to be done and there is no provision in the contract authorizing the employment of independent subcontractors, if subcontractors are employed they are as to the owner the employees, agents or servants of the principal contractor and he is liable for their negligence unless the owner is bound by a custom ( Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691), or unless the owner acquiesces in the employment of subcontractors or is barred under some other rule of law from urging the contractor's lack of authority to employ a subcontractor. This principle is of vital importance to owners and builders. In its absence contractors could shirk grave responsibilities and leave owners and builders with recourse only to financially irresponsible subcontractors, without bond or indemnity protection. The allegation that the duties involved were nondelegable to an independent subcontractor, as against a general demurrer, does not require a construction of the count to allege that the subcontract was binding on the owner and that the defendant was liable under an exception in Code § 105-502. This Code section applies in cases where the contract with the owner contemplates subcontractors or the owner is otherwise committed to their employment. Since the defendant owed the duty of ordinary care to the owner under the allegations of the petition, the duty extended to the guests of the owner and to all who rightfully came within the orbit of danger created by those doing the work. Moody v. Martin Motor Co., 76 Ga. App. 456 ( 46 S.E.2d 197).
3. Since the court erred in sustaining the demurrer to Count 3 the further proceedings were nugatory.
The court did not err in sustaining the general demurrer to Count 2.
The court erred in sustaining the general demurrer to Count 3.
Judgment affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.