Opinion
35840.
DECIDED OCTOBER 5, 1955.
Action for damages. Before Judge Manning. Cobb Superior Court. June 2, 1955.
Joseph J. Fine, F. H. Boney, John H. Mobley, for plaintiff in error.
Hewlett, Dennis, Bowden Barton, Sam D. Hewlett, Jr., contra.
1. Properly construed, the petition stated a cause of action against the defendant for negligence, and the trial court did not err in overruling the general demurrer thereto.
2. Unless a "judgment for a sum certain" has been rendered in the trial court, the Court of Appeals has no authority under Code § 6-1801 to award damages in favor of the defendant in error against the plaintiff in error ( Jackson v. Jackson, 178 Ga. 203, 172 S.E. 459, and citations), and the judgment complained of in this case being to the overruling of a general demurrer to a petition seeking unliquidated damages, the requested damages for delay be assessed against the plaintiff in error is denied.
DECIDED OCTOBER 5, 1955.
Richard V. Muller brought an action for damages against State Park Marina, Inc., and the material allegations of the petition are substantially as follows: The defendant has injured and damaged the plaintiff in the sum of $25,000 by reason of the following facts. On or about June 7, 1954, at approximately 1 p. m., the plaintiff was operating his motor boat on Lake Allatoona near Cartersville, Georgia. The defendant owns and operates a boat dock on the lake with a gasoline filling station located thereon, from which it sells to the public generally for boats which are being operated on the lake. On the day in question, the plaintiff steered his boat adjacent to the landing which had been established by the defendant, in order to have the gas tank of the boat filled from the defendant's gasoline pump. At the time the gasoline pump was being operated by one Jack Clark and other attendants of the defendant, whose names are unknown to the plaintiff at the present time. The pump was located immediately adjacent to the water on the boat dock. When the plaintiff docked his boat, he requested the defendant's employees to fill the gasoline tank of the boat. The defendant's attendants, in filling the gas tank of the plaintiff's boat, negligently allowed the gasoline to overflow from the tank into the plaintiff's boat from a gasoline hose attached to one of the defendant's gasoline pumps so as to entirely fill the bottom of the plaintiff's boat with gasoline. The defendant's employees allowed the gasoline to flow into the boat in such quantities that it flowed upon and came into contact with the hot exhaust pipe extending from the motor, which was located in the center of the boat somewhat toward the stern. By reason of the fact that the gasoline came in contact with the hot exhaust pipe, a gasoline explosion ensued which caused the plaintiff to be severely burned and to sustain enumerated injuries about his face, arms, legs, and chest from which he has suffered and will continue to suffer the greatest physical and mental pain and agony, and all of his injuries are permanent in character. Immediately prior to the described occurrence, the plaintiff was a strong and able-bodied man of the age of 26 years, earning and capable of earning $250 per week. For a period of two weeks after the occurrence the plaintiff was unable to work and was confined to his bed, and since that time he has been able to work only one-half day and his earnings have been diminished accordingly. By reason of his injuries, the plaintiff has incurred medical expenses of $605. The defendant was negligent in and about the premises as follows: (a) in failing to provide an automatic cut-off, or other facilities, for stopping the flow of gasoline from its gasoline hose attached to its pump when the tank on the plaintiff's boat became full, thereby preventing the gasoline from spilling over into and about the boat; (b) in failing to observe that gasoline was spilling over from the tank as the defendant's employees filled the tank of the boat; (c) in failing to stop the flow of gasoline from the hose by a hand valve located on the hose for that purpose; (d) in failing to warn the plaintiff of the above acts of negligence, so that he might depart from the premises or take necessary precautions. All of the above and foregoing acts of negligence concurred and jointly co-operated to cause and did cause directly and proximately the injuries of which complaint is made.
The defendant's general demurrer to the petition was overruled, and it has brought the present writ of error here to have that judgment reviewed.
1. "It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference on demurrer, will prevail in determining the rights of the parties. Krueger v. McDougald, 148 Ga. 429 (1) ( 96 S.E. 867)." Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 ( 118 S.E. 471). It is the defendant's contention that, under an application of the foregoing rule of construction, it appears from the petition and inferences properly to be drawn therefrom that the plaintiff could, in the exercise of ordinary care, have avoided the consequences to himself of the negligence of the defendant's employees, and that consequently, according to the rule stated in Code § 105-603, covering such situations, the plaintiff may not recover. The line of the defendant's reasoning is this: Since the plaintiff had been operating his motor boat, he necessarily knew that the exhaust pipe was hot; that, since there is no allegation that the overflow of gasoline into the boat was unknown to him, he must have known of it; that, since there is no allegation that the boat was concealed from the plaintiff's view, it must have been within the range of his view; that, since the plaintiff's injuries are such as those alleged, he must have been in, or close to, the boat; that, since there is no allegation that he had no knowledge of the impending danger, he must necessarily have had knowledge of it; that, since there is no allegation that the explosion ensued immediately upon the overflow of the gasoline into the boat, and it is alleged that quantities of gasoline did overflow sufficient to fill the bottom of the boat before the explosion did ensue, the plaintiff had sufficient time to remove himself from danger before the explosion, since the plaintiff as a conscious human being, without impairment of his bodily senses, was bound to exercise ordinary care to avoid the consequences of the defendant's negligence by getting out of the way of a probable or known danger.
Such a line of reasoning, we think, is faulty. It is nowhere alleged in what position the plaintiff was standing or sitting at the time of the explosion, and had the defendant wished this information, he should have asked for it by special demurrer. Filling a gas tank on a motor boat with gasoline is not ordinarily a dangerous operation, and while overflowing the tank may be dangerous, there is nothing in the petition from which the inference may be drawn that the plaintiff had any reason to anticipate that the tank would be overflowed so that the gasoline would come into contact with the hot exhaust pipe. Indeed, he had every right to anticipate the contrary. While the nature of the plaintiff's injuries, or the fact that he was injured at all, necessarily indicates that he was within the ambit of the explosion, it does not follow that his injuries indicate that he was in the boat or even so near the boat as to observe the filling operation going on, which was under the control of the defendant's employees. We know of no duty on the part of the plaintiff to have supervised the operation; and until he knew of the danger or in the exercise of ordinary care had reason to anticipate the danger, no duty devolved upon him to avoid the consequences of the negligence of the defendant's employees. It follows, we think, that properly construed, most strongly against the pleader, the petition still does not show that the plaintiff could have avoided the consequences of the defendant's negligence, and it is well established that the plaintiff is not required under our rules of pleading to negative his own negligence, if any. Hardwick v. Figgers, 26 Ga. App. 494 (2) ( 106 S.E. 738); Sims v. Martin, 33 Ga. App. 486 (8) ( 126 S.E. 872); Pollard v. Hagan, 60 Ga. App. 581, 583 ( 4 S.E.2d 477).
The cases upon which the defendant relies are not in point, as in each of those cases it appears that the acts which caused the plaintiff's injuries were affirmative acts on the part of the plaintiff himself.
The trial court did not err in overruling the general demurrer to the petition.
2. Headnote 2 requires no elaboration.
Judgment affirmed. Gardner, P.J., and Townsend, J., concur.