Opinion
34212.
DECIDED SEPTEMBER 26, 1952.
Action for damages; from Fulton Superior Court — Judge Pharr. June 6, 1952.
McFarland Cooper, for plaintiff in error.
J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin, Henry L. Bowden, contra.
The petition as amended did not set forth a cause of action against the City of Atlanta, and the court did not err in sustaining its general demurrer and dismissing the action as to the city.
DECIDED SEPTEMBER 26, 1952.
Siano Construction Company Inc. brought an action in the Superior Court of Fulton County against the City of Atlanta and Southeastern Foundries Inc. for damages sustained by the alleged negligence of the defendants. The petition as amended alleged in substance as follows: About January 10, 1949, Southeastern Foundries Inc. submitted to the city a quotation sheet for items which included six-inch split sleeve castings, stating that they were clean, true castings meeting American Water Works specifications. From this quotation the city ordered certain castings from the corporation. The split sleeves were to be belted around joints of six-inch water mains to hold the pipe and packing firmly in place in distributing water at pressure up to ninety pounds per square inch under streets with heavy traffic and subject to the ordinary stresses, strains and pressures of mains laid in such locations, and to special stresses, strains and pressures by uneven tightening of belts in the sleeves. If not properly constructed, a sleeve is apt to burst under such stresses, strains and pressures. About November 1, 1949, the plaintiff contracted with the city in its proprietary function to provide and install a six-inch water main in an area outside the city to supply water to the Holmes Street Apartments then being constructed by the plaintiff, the city being paid $4134.68 for the job. The city used a sleeve which was sold and delivered to it by Southeastern Foundries Inc. City employees tightened unevenly the nuts and bolts holding the sleeve in place and left the job in that condition. The city completed its work by December 1, 1949, and then the plaintiff laid the paving above it, having previously put down the sidewalks there. On December 10, 1949, the sleeve burst, doing damage to the extent of $3800 which the plaintiff by its contract with the owners was bound to make good. The plaintiff was the general contractor and in possession of the property during the construction which was then in progress. The defects in the cast iron sleeve were latent, not discoverable upon reasonable inspection by the city. The city, however, was negligent. The city and its supervisors in the water department in the exercise of ordinary care ought to have known of the danger that a six-inch split sleeve casting would have a latent defect that would cause it to break more easily than a perfect casting. The uneven tightening of the nuts and bolts holding the sleeve in place on the main caused unnecessary and excessive stress, strain and pressure upon the split sleeve. Such uneven tightening was bad and improper workmanship. It was the duty of the city to tighten those nuts and bolts evenly in order to avoid unnecessary and excessive stress, strain and pressure. It was possible and practicable for the city to tighten those nuts and bolts evenly. The stress, strain and pressure caused by the uneven tightening of those nuts and bolts substantially increased the danger that the split sleeve would burst, and was a proximate cause of the bursting of the split sleeve. Because of the stresses, strains and pressures that uneven tightening of the nuts and bolts holding a sleeve causes to the sleeve, it was the duty of the city to make an adequate inspection of the tightening of the nuts and bolts that held in place the split sleeve, and after the installation to inspect adequately the installation for stress and strain caused by uneven tightening. Adequate inspection of the tightening would have revealed the unevenness thereof and the danger of bursting. Adequate inspection of the installation for stress caused by uneven tightening of those nuts and bolts would have revealed the stress and strain caused thereby and the danger of bursting. The city failed to make an adequate inspection of the tightening of those nuts and bolts and of the installation of the sleeves after that installation had been made. Those failures of the city constituted negligence, and were proximate causes of the bursting of the split sleeve mentioned in this suit. The sleeve was removed from the main by the city after the sleeve burst. At that time the city examined it and knew how many bolts and nuts were used in tightening it, and how and in what manner and to what extent they were unevenly tightened. The city has kept the sleeve in its possession up to the present time, and has had better opportunity than the plaintiff to ascertain the particulars about the tightening of the sleeve. The city was negligent in tightening unevenly the bolts and nuts holding the six-inch sleeve in place and in failing to inspect adequately the tightening of the nuts and bolts holding the split sleeve, and in failing to inspect adequately the installation of the split sleeve after it had been installed.
The exception here is to the judgment sustaining the city's general demurrer to the petition as amended, on the ground that it set forth no cause of action against the city, and in dismissing the action as to the city.
The judge of the trial court, the Honorable Ralph H. Pharr, in sustaining the general demurrer of the City of Atlanta, wrote an opinion in which he so clearly and adequately shows the imperfections of the petition as amended that we set it forth here and adopt it as the opinion of this court in holding that the trial court did not err in sustaining the general demurrer and dismissing the action as to the city. After briefly stating the issue, the court proceeded as follows: "It is alleged in paragraph 21 that the city ought to have known that the sleeve casting would have a latent defect. Unless some facts are alleged which would give rise to the duty to know of a latent defect this allegation is simply a conclusion of the pleader. See Pacetti v. Central Ry. Co., 6 Ga. App. 97 (1) [64 S.E. 302]. From a careful examination of the pleadings I am unable to find any allegations from which a duty to know of latent defects is imposed upon the city. (While such a duty might arise under the contract, this is not an action on the contract and the provisions of the contract are not set forth.) Ordinarily, liability is not imposed for damages resulting from latent defects which could not have been discovered by the use of ordinary care and diligence, where such defects were not the result of negligence of the party sought to be held liable. See City of Columbus v. Anglin, 120 Ga. 785, 786 (1) [48 S.E. 318]. In paragraph 15 it is alleged that the defects in the sleeve `were latent and would not be discovered upon reasonable inspection by the city.' There is, therefore, no basis for charging the city with notice or knowledge that the sleeve was or likely to be defective. Construing the pleadings in the manner required by law, it appears from the allegations of amended paragraph 6, paragraph 17, and amended paragraph 16 that a properly constructed sleeve would withstand the stress, pressure and strain of uneven tightening of bolts and nuts. If under ordinary circumstances (use of properly constructed sleeves) uneven tightening of bolts and nuts would not be hazardous or result in damage, then how can it be said that such uneven tightening is negligence? To state it another way — if uneven tightening of bolts and nuts results in hazard or damage only when the sleeve is latently defective and nothing is alleged to charge the city with notice of latent defectiveness, would the city be bound to tighten bolts and nuts evenly in all cases? Assuming as true that the alleged uneven tightening was the cause or contributed to the cause of the breaking and damage in the case, such could not impose liability upon the city unless such uneven tightening was negligence. This being an action in tort, damage without negligence would not impose liability. If uneven tightening is not negligence under ordinary circumstances, it could not be negligence here. It being clear from the allegations of plaintiff's petition that under ordinary circumstances uneven tightening would not be negligence, the petition, therefore, fails in that particular. Since it is held that uneven tightening is not negligence under the circumstances alleged, I do not see how a failure to inspect the tightening can be construed to be negligence. If the inspection would have disclosed the uneven tightening, but the uneven tightening was not negligence, then the failure to inspect could not be negligence. It is ordered, therefore, that the renewed general demurrer of defendant, City of Atlanta, to the plaintiff's amended petition is sustained and the case is dismissed as to the City of Atlanta."
Judgment affirmed. Sutton, C.J., and Felton, J., concur.