Opinion
19606.
ARGUED FEBRUARY 12, 1957.
DECIDED MARCH 11, 1957. REHEARING DENIED MARCH 25, 1957.
Certiorari to Court of Appeals — 94 Ga. App. 578.
Hurt, Gaines, Baird, Peek Peabody, J. Corbett Peek, Jr., for plaintiff in error.
Julian E. Gortatowsky, Willingham, Gortatowsky Morrison, Geo. D. Stewart, J. E. B. Stewart, contra.
A suit for damages caused by a subcontractor, by applying volatile and inflammable materials to a floor in close proximity to a fire, can not be maintained against the main contractor, the facts not being sufficient to bring it under Code §§ 105-501, 105-502, which are the only conditions under which such a suit can be maintained.
ARGUED FEBRUARY 12, 1957 — DECIDED MARCH 11, 1957 — REHEARING DENIED MARCH 25, 1957.
This case involves a suit for damages for the wrongful death of a former husband of the plaintiff, whose death was caused by burns received in a flash fire resulting when inflammable materials came in contact with an open fire in a bedroom hearth in a house in which the defendant had a contract to finish the floors with hardwood flooring. The defendant subcontracted the work to another, whose negligence is alleged to have caused the fire resulting in the wrongful death of the plaintiff's husband. The writ of certiorari was granted by this court because of alleged error of the Court of Appeals in holding, in its ruling on the sufficiency of the pleadings in count 3 of the petition, that a prime contractor is liable for the negligent acts of his subcontractor where there is no authorization or provision in the prime contract for the employment of subcontractors, and in holding that Code §§ 105-501 and 105-502 do not apply. Guthrie v. Robbins Home Improvement Co., 94 Ga. App. 578 ( 95 S.E.2d 737).
Count 3 as amended clearly alleges that the work was done by a subcontractor of the defendant; that the defendant was negligent because of the acts of this subcontractor, although the allegations attempt to show that the defendant had actual knowledge of the situation on the morning of the fire; and that the work, being a dangerous undertaking, involved duties nondelegable by an employer to an independent contractor.
The petition specifically alleges that the defendant was engaged in the business of repairing, altering, and improving residential buildings; that on the morning of the fire, it was present, through its agent, who was at the home of the owners for about 20 minutes assisting in the selection of a tile color, and while present discussed the moving of furniture and the sanding and finishing of the floor with the subcontractor and his employee. These allegations show clearly that the owner had knowledge that the subcontractor was to perform the finishing of the floor and are a recognition of that fact, although there is an allegation that the owners were unaware that the use of the inflammable liquids in a non-ventilated room and near an open fire was dangerous.
Various paragraphs of the petition allege the inflammable nature of certain materials used, and a part of a city ordinance is set out showing that said inflammable liquids should be used only in a well-ventilated room and not handled in the presence of fire. The allegations then show that the room was not ventilated by the subcontractor and was used thus in the presence of an open fire, in violation of the ordinance, and which resulted in the flash fire from the condition of the atmosphere in the room. The petition then alleges that the work, being inherently dangerous when performed near an open fire, was nondelegable by an employer to an independent contractor, and that the defendant was liable for the failure of the subcontractor and his employee to exercise ordinary care to prevent injury.
The decisions of both the Court of Appeals and the Supreme Court clearly hold that an employer is not liable for acts of his independent contractor unless the facts and circumstances bring the case under the exceptions to such rule, plainly and unmistakably stated in Code §§ 105-501, 105-502. Malin v. City Council of Augusta, 29 Ga. App. 393 ( 115 S.E. 504); Ridgeway v. Downing Co., 109 Ga. 591 ( 34 S.E. 1028); Dekle v. Southern Bell Tel. c. Co., 208 Ga. 254 ( 66 S.E.2d 218). A search for the law on this point should not overlook the language found in Ridgeway v. Downing Co., supra, at page 596 as follows: "The only instances in which an employer of an independent contractor is liable for the negligence of such contractor are those therein [Code §§ 105-501, 105-502] enumerated and defined." This quoted language of the Supreme Court could be wrong, but could the Court of Appeals, under Code (Ann.) § 2-3708 of the Constitution, or even the Supreme Court, refuse to follow it? Obviously not. The petitioner clearly intended and attempted to bring his case within the provisions of Code §§ 105-501, 105-502, and the Court of Appeals ruled that they did not apply. Why would not a Code section expressly and unmistakably referring to a factual case such as this apply? The petitioner unquestionably intended and attempted to bring this case under Code § 105-502 (2), which makes the employer liable for acts of his independent contractor if, according to previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed.
Paragraph (17) of the petition alleges knowledge of the employer that applying the volatile and inflammable material to a floor in a residence (not when carefully done as the statute says), but "near an open fire" is inherently dangerous. Thus is plainly exposed the fatal weakness of the petitioner's case. The statute holds the employer liable only when the work to be done is inherently dangerous "however carefully done." The allegations charge danger not "inherent," but only when done, as here, carelessly in close proximity to an open fire. The utter failure of the petition as amended to allege a cause of action is too obvious to permit of doubt.
After ruling that the above Code sections did not apply, the Court of Appeals proceeded from that point to state its arguments for upholding the petition. Its judgment is squarely grounded upon its assertion that the contract with the owner did not authorize the subcontract, and therefore the prime contractor is liable for all negligence of the subcontractor. We might take the time to discuss the novel legal proposition thus announced, but the indisputable facts refute that proposition at the very threshold. There nowhere appears an allegation or even an intimation that the subcontract was unauthorized, but even if such a fact did appear, the alleged facts impliedly show ratification by the owner of the subcontract, and this is the legal equivalent of its original authorization. We are not concerned about the court's discussion of the wisdom of a rule of law that would require an express authorization of a subcontract to relieve the prime contractor of liability for the negligence of the subcontractor further than to observe that wisdom of laws is no legitimate concern of the judiciary, and courts can not under the Constitution invade the exclusive constitutional jurisdiction of the legislature for the purpose of promulgating a law that the court thinks is wise.
The petition utterly failing in count 3 to allege facts sufficient to authorize recovery, the Court of Appeals erred in overruling the judgment of the trial court sustaining a demurrer to count 3 and in striking the same.
Judgment reversed. All the Justices concur, except Wyatt, P. J., who dissents.