Opinion
33789.
DECIDED OCTOBER 18, 1951.
Damages; from Bibb Superior Court — Judge Mallory C. Atkinson. July 23, 1951.
Martin, Snow Grant, for plaintiff in error.
Bell Bell, Hall Block, Denmark Groover Jr., contra.
1. The conduct of the defendant's agent alleged in this petition to constitute negligence proximately resulting in the loss of the plaintiff's property presents a jury question because reasonable minds might disagree as to whether or not such conduct amounts to the required degree of negligence to support a cause of action and as to whether or not such conduct was the proximate cause of the loss. Accordingly it was not error for the trial court to overrule the general demurrer.
2. Certain paragraphs of the petition specified in division two hereof are subject to the special demurrers interposed thereto because they constitute conclusions of the pleader and no facts are set forth in the petition in support thereof.
3. Special demurrers not insisted upon are treated as abandoned.
DECIDED OCTOBER 18, 1951.
Mr. and Mrs. Carl L. Wingate, plaintiffs in the trial court and defendants in error here, filed suit against the Orkin Exterminating Company alleging in substance that they owned a described house and personal property of the value of $10,000; that on February 17, 1950, at about 3:45 p. m. this house and property were completely destroyed by a fire which originated in the attic; that an agent of the defendant pest exterminating company, acting in the scope of his employment, came to the house and was in the attic between 12:30 and 1:30 p. m. and sprayed a large quantity of some substance about the chimney in the attic of said house; that there was a fire in the circulating heater in the house located in the kitchen, with a flue leading into the chimney, and that the chimney was hot; that no one else was in the attic except the defendant's agent, nor did anyone else go there after he left and until the house was destroyed by fire. Other pertinent paragraphs of the petition as amended are as follows: "11. The defendant's agent was in the attic in and about the chimney, observed the chimney and knew, or in the exercise of ordinary care, should have known that the same was hot. 13. Although the plaintiff does not know the name of said substance, which fact is within the knowledge of the defendant, plaintiffs believe and allege that it was gaseous in form and of a highly inflammable nature. 14. The defendant's agent sprayed said inflammable material about the brick and generally about the attic, without taking any precautionary measures to see that the same would not cause a fire or was not placed in a position likely to cause a fire. 17. The fire and destruction were caused by the following acts of negligence on the part of the defendant by its agent acting within the scope of his employment, to-wit: (a) Negligently spraying an inflammable material around the hot chimney. (b) Spraying an unnecessarily large amount of inflammable material around the hot chimney. (c) Failing to take the proper precautions before spraying an inflammable material around the hot chimney. (d) Spraying inflammable material about the attic without proper precaution."
General and special demurrers to the petition as amended were overruled. The exception is to this judgment.
1. It is contended by the plaintiff in error that since the courts are required to take notice of primary physical laws ( Rome Railway Light Co. v. Keel, 3 Ga. App. 769 (2) 60 S.E. 468), and since reference to the Encyclopoedia would reveal that the combustion point of hydrogen and air is 1058 degrees, a temperature which could not be supposed to be present on the outside surface of a chimney, this court should hold as a matter of law that under the facts alleged in the petition it would have been impossible for a fire to have been started in the attic of the plaintiff's house, and that therefore the petition fails to set out a cause of action. Without deciding whether under proper circumstances these facts might be a subject for judicial notice (see, in this regard, Central of Georgia Ry. Co. v. Lawley, 33 Ga. App. 375 (3), 126 S.E. 273), it is obvious that in this case a multitude of facts not alleged in the petition, and which would constitute evidentiary material (such as the nature of the gas used by the defendant, the construction and location of the chimney, etc.) would need to be known before it could be determined absolutely whether the spraying of the gas in question on the surface as alleged could, under any circumstances, set off a conflagration. It is alleged as a fact that the chimney was in the attic; that it was hot; that the defendant made use of a highly inflammable material; that he sprayed it around the chimney; that his act in so doing was negligent; that this negligent act caused a fire in the attic, and that that fire caused the destruction complained of. The petition thus sets out a breach of legal duty on the part of the defendant toward the plaintiff, and sets out a cause of action as against general demurrer. In Carruthers v. City of Hawkinsville, 42 Ga. App. 476 (5, 6) ( 156 S.E. 634), it was held that the petition set out a breach of legal duty in the operation of an electric light and water plant as a result of which the plant caught fire and burned to death the plaintiff's intestate, but that it failed to set forth the manner in which the fire originated and was defective in this respect. In Seaboard Air-Line Ry. Co. v. Stoddard, 82 Ga. App. 743 ( 62 S.E.2d, 620), it was held that the petition set out a cause of action for the burning of the plaintiff's intestate in a fire, but that the petition was defective in thereafter alleging three contradictory methods in which the fire might have originated. The petition is not subject to either of these defects, it being alleged that the fire originated as a result of inflammable material being sprayed against a hot chimney. Where certain conduct is alleged to be negligent, and where such negligence is alleged to be the proximate cause of the injuries received, both propositions are jury questions if reasonable minds might disagree as to whether the conduct alleged amounts to negligence, and whether, if so, it was the proximate cause of injury. Georgia Power Co. v. Blum, 80 Ga. App. 618 (2) ( 57 S.E.2d, 18); Macon Telegraph Pub. Co. v. Garden, 79 Ga. App. 230 ( 53 S.E.2d 371); Central of Ga. Ry. Co. v. Leonard, 49 Ga. App. 649 (3) ( 176 S.E. 137). It was not error to overrule the general demurrer.
2. The four specifications of negligence of paragraph 17 of the petition are separately attacked by special demurrer as conclusions, there being no allegations of fact in the petition to support the same. As to subparagraph (a) "negligently spraying an inflammable material around the hot chimney", there is an allegation of fact that the chimney was hot, that the material was inflammable, that it was sprayed around the chimney, and that this negligent act caused the fire. Accordingly, it is not subject to demurrer on this ground. However, allegations of negligence in subparagraphs (b), (c) and (d) — spraying an unnecessarily large amount of inflammable material around the hot chimney and failing to take proper precautions before spraying an inflammable material around the hot chimney and about the attic — are not supported by any allegations of fact as to what amount of the material could safely be sprayed and how much was in fact used, or as to what precautions would be proper in spraying the material either around the chimney or about the attic. In the absence of proper allegations of fact, these specifications of negligence constitute mere conclusions of the pleader, and are subject to attack by timely special demurrer. See Atlantic Coast Line R. Co. v. Royal, 84 Ga. App. 247 ( 65 S.E.2d 827); West v. Inman, 137 Ga. 822 (2) ( 74 S.E. 527); Medlock v. McAdoo, 26 Ga. App. 92 ( 105 S.E. 643).
3. The remaining special demurrers, not having been argued by counsel, are treated as abandoned.
The trial court did not err in overruling the general demurrer to the petition. It was error to overrule grounds 8, 9 and 10 of special demurrer.
Judgment affirmed in part and reversed in part. MacIntyre, P.J. and Gardner, J. concur.