Summary
reversing grant of nonsuit to AGL where AGL converted plaintiff's gas stove to use a new type of gas, changed the stove fixtures and equipment, and advised plaintiff that stove was safe for use
Summary of this case from Goodhart v. Atlanta Gas Light Co.Opinion
33682.
DECIDED OCTOBER 11, 1951. REHEARING DENIED NOVEMBER 9, 1951.
Action for damages; from Richmond Superior Court — Judge G. C. Anderson. May 2, 1951.
C. Wesley Killebrew, Carl E. Sanders, for plaintiff.
Fulcher Fulcher, for defendant.
1. In a motion for nonsuit the only question involved is whether or not the allegations and proof correspond.
2. The evidence and reasonable inferences therefrom supported the allegations of the petition as to the injury of the plaintiff, while using a cooking stove, by escaping gas because of the defendant's negligence in changing the stove fixtures so as to use a new-type gas, and it was error to grant a nonsuit.
DECIDED OCTOBER 11, 1951 — REHEARING DENIED NOVEMBER 9, 1951.
Enise Kirby sued the Atlanta Gas Light Company for damages and alleged in substance: The defendant was a public-utility corporation engaged in the business of furnishing gas to its customers. The plaintiff's mother owned a gas stove and a gas-heating unit and was a customer of the defendant. The defendant converted to a new-type oil-burning gas and changed the fixtures and equipment at the plaintiff's residence accordingly. Shortly after the conversion the plaintiff noticed a burning sensation of her eyes while using the gas stove and desisted from using it. The defendant's agents inspected and adjusted the fixtures and advised the plaintiff they were all right. The plaintiff again used the stove and had the same trouble. Escaping gas burned the plaintiff's eyes and caused blisters and she is now totally blind. The defendant and its agents were negligent in selecting incompetent persons to make the conversion, in installing fixtures which would permit the escape of gas, and in advising the plaintiff that it was safe to use the stove when in reality the defects had not been corrected. The defendant's negligence was the proximate cause of the plaintiff's injury and damage.
On the trial of the case on May 2, 1951, the plaintiff testified: A representative of the gas company called on December 6, 1949, and told the plaintiff how to use the gas until conversion of the gas system. On December 8 the man came back with equipment and made the conversion and told the plaintiff and her mother the conversion was complete and the gas could be used. While cooking, the gas affected her eyes and caused blisters on the eyelids. A gas company employee, sent to her house in answer to a call, said, "Well, there is enough fumes to put your eyes out, both yours and your mother's — fumes in the oven." After working on it, he said, "Now, it is all right to use." The next time she used the stove the same thing happened. The gas began to affect her vision; she has not been able to read, and objects have been hazy. Her eyes were never in a condition of that kind before the conversion. The gas appliances were removed from her house in February of 1950.
Mrs. Clare E. Kirby, mother of the plaintiff, testified: Although the plaintiff didn't have perfect vision before the injury, she could see and go where she pleased. Her daughter's eye trouble started immediately upon conversion by the gas company. Since then the plaintiff has been unable to do anything. She returned home one day and found her daughter suffering with her eyes. Her daughter had been cooking on the gas stove. The witness called the gas company and asked them to fix it. The gas company workmen were in the house on several occasions and after working they told her the stove was perfectly all right. Later a Miss Eve of the gas company came to the house, turned on the stove and coughing, said, "This is where the fumes are coming from."
Several witnesses testified as to plaintiff's ability to see, read, and find her way alone before her injury, and of her inability to read or find her way normally after the gas conversion.
Mr. J. W. McElderry, Division Manager of the Atlanta Gas Light Company, an adverse witness sworn by the plaintiff for the purpose of cross-examination, testified: About December of 1949 his company made a conversion with reference to the type of gas they had been using. In making the conversion at the Kirbys' they changed the orifices, which is the equipment the gas comes through and after that you mix it with air to burn. In some cases they removed orifices, and in some cases they used a little plug, and if it was not properly done you might not get the proper combustion. It limits the amount of gas that can come through this hole and if not properly done you could have a few leaks. He had seen gas fumes cause stinging in eyes, but for some twenty-five years had never seen it cause blistering or burns. On days when they had leaks in their machines he had men working on it all day.
Dr. Alton V. Hallum, a practicing physician specializing in ophthalmology, testified that he couldn't think of any organic disease of the eyes that would have caused the same condition he found in plaintiff's eyes in February of 1950. He said that the entire cornea was affected and that she had never had any such condition prior to that time. The plaintiff had been a patient of his since 1935. He assumed that it was possible for the condition to be caused by gas fumes, though he had never seen such a condition caused by gas burns. As to whether or not the gas fumes could have caused the loss of vision, he said he couldn't say with certainty, but that it was highly suspicious. He said that for all practical purposes the plaintiff is considered blind.
Upon motion of counsel for the defendant the court granted a nonsuit and error is assigned on that judgment.
The sole question for determination by this court on exception to the granting of a nonsuit is whether or not the plaintiff's evidence is sufficient to prove her allegations. Kelly v. Strouse, 116 Ga. 872, 883 ( 43 S.E. 280); Candler v. Automatic Heating Inc., 40 Ga. App. 280, 283 ( 149 S.E. 287); Advanced Refrigeration Inc. v. United Motors Inc., 71 Ga. App. 576, 577 ( 31 S.E.2d 605). "A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted." Code, § 110-310. Although the language in that section seems to indicate that a nonsuit should be granted in all cases where the plaintiff ought not to recover, it was held in Kelly v. Strouse, supra, and Clark v. Bandy, 196 Ga. 546, 559 ( 27 S.E.2d 17), that in a motion for nonsuit there is only one question: Do the allegations and the proof correspond?
In the case of Clark v. Bandy, supra, it was stated, "Since a failure to set out the plaintiff's cause of action with sufficient clearness is no ground of nonsuit ( Jossey v. Stapleton, 57 Ga. 144), and defective pleadings afford no reason for the grant of a nonsuit ( Greenfield v. Vason, 74 Ga. 126), and since the office of such a motion is not to test the legal sufficiency of a petition ( Reeves v. Jackson, 113 Ga. 182, 184, 38 S.E. 314; McCandless v. Conley, 115 Ga. 48, 41 S.E. 256), or to invoke a ruling as to whether the petition states a cause of action ( Evans v. Josephine Mills, 119 Ga. 448, 46 S.E. 674), but only brings up the question whether the plaintiff proved his case as laid, without establishing such additional facts as disproved his right to recover ( Duke v. Bibb Manufacturing Co., 120 Ga. 1074, 18 S.E. 408); and since further, a nonsuit will be refused if there be even slight evidence to support the plaintiff's case ( Barnett v. Terry, 42 Ga. 283 (3); Elrod v. McConnell, 170 Ga. 892, 154 S.E. 449), we need not make inquiry as to whether or not the plaintiff's petition was defective, nor are we here concerned with any question of substantive law with respect to the subject-matter of the suit. Our duty is merely to examine the allegations of the petition and the proofs offered by plaintiff, and to compare the same in order to determine whether, on application of the principles hereinbefore referred to, the nonsuit should have been granted."
Construing the evidence most favorably to the plaintiff as we must do where the question of granting a nonsuit is under consideration ( Highsmith v. National Linen Service Corp., 63 Ga. App. 112, 10 S.E.2d 237; Mason v. Hall, 72 Ga. App. 867, 873, 35 S.E.2d 478), the evidence was sufficient to sustain the allegations of the petition and withstand the nonsuit. While the evidence did not specifically establish the alleged negligence of the defendant in connection with the work upon the gas fixtures, the evidence, construed most favorably for the plaintiff, must be treated as showing that no one other than the defendant took part in the conversion of the gas fixtures. In these circumstances the doctrine of res ipsa loquitur would authorize the inference that the defendant was negligent in making the changes in the instrumentality, which released the gas which injured the plaintiff. See Candler v. Automatic Heating Inc., supra; Chenall v. Palmer Brick Co., 117 Ga. 106, ( 43 S.E. 443); Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573, ( 190 S.E. 879).
Since the allegations of the petition were supported by the evidence and reasonable inferences therefrom, the court erred in granting a nonsuit. Judgment reversed. Felton and Townsend, JJ., concur. Townsend, J., was designated to preside in place of Sutton, C. J., disqualified.