Opinion
34291.
DECIDED NOVEMBER 21, 1952.
Action for damages; from Ware Superior Court — Judge Thomas. July 24, 1952.
S. Thomas Memory, Ben A. Hodges, for plaintiff in error.
Wilson Wilson, contra.
1. Where it was alleged that the plaintiff purchased from the defendants an oil heater, which was delivered to the plaintiff in an open package, placed and installed in his house, and demonstrated by the defendants, and that the plaintiff himself lighted the heater for the first time fifteen days later, following the defendant's instructions, at which time it exploded, causing the injuries complained of, because of a leak in the oil tank which was a latent defect rendering the heater inherently dangerous, these allegations were sufficient to show a duty on the part of the defendants to discover the defects complained of, and to show a breach of the seller's implied warranty that the heater was reasonably suited to the use intended and that the seller knew of no latent defects undisclosed.
2. As against general demurrer, the general allegation of the agency of one of the defendants for the other was sufficient.
3. The petition set out a cause of action, and the court erred in dismissing it on general demurrer.
DECIDED NOVEMBER 21, 1952.
Abraham B. Williams sued L. C. Ballenger, t/a Ballenger Furniture Company, and William Q. Harper for damages for personal injuries and property loss sustained as a result of an explosion of an oil stove which the defendants had sold to the plaintiff. The plaintiff alleged in his petition: that, on November 5, 1951, said Harper, agent, servant, and employee of Ballenger Furniture Company, and L. C. Ballenger, t/a Ballenger Furniture Company, for a named consideration delivered the two-burner oil heater to the plaintiff's house and place of business, and represented to the plaintiff that the heater was new and removed it from a pasteboard container which had been opened prior to the time of delivery; that Harper removed the heater from the truck and carried it into Williams' house and, upon request of Williams, proceeded to demonstrate the proper procedure in operating the heater, during which demonstration the heater was allowed to burn for about twenty minutes; that the heater was not turned on again until November 20, 1951, on which date Williams followed the instructions as set out and demonstrated by Harper, turned the kerosene oil on and lighted the heater; that within ten minutes after the burners were lighted and while the plaintiff was in the room where the heater had been placed by the agent Harper, the explosion occurred and caused the injuries and damage complained of.
It was alleged: that the heater was equipped with two kerosene burners and with a tank or receptacle at the back and near the top wherein kerosene which was fed to the burners was stored; that, when the burners were turned "on" and lighted, the kerosene flowed from the tank, keeping the wicks of the burners replenished with kerosene, and, when the burners were not lighted, the flow of kerosene would have automatically stopped had not the heater been defective; that the plaintiff was not familiar with and knew nothing about kerosene heaters and was unaware of the dangerous condition that existed; and that the plaintiff had a right to rely upon the representations of the defendant Harper, agent, servant, and employee of L. C. Ballenger, t/a Ballenger Furniture Company, both express and implied, that the heater was new and could be safely used for the purposes for which it was constructed, i. e., heating purposes.
It was further alleged: that the heater was inherently dangerous, when it was placed in Williams' house by Harper, because of latent defects which were not apparent to the plaintiff because of his lack of knowledge of the internal structure of the heater; that the plaintiff could not have discovered by ordinary diligence the defective condition of the heater; that the explosion occurred because the tank or receptacle was defective, in that the seams around its ends were not properly sealed, so that the kerosene seeped out into the pan underneath the tank and down into the internal structure of the heater; that when the plaintiff, not realizing that the entire interior of the heater was saturated with kerosene, lighted the burners, the heat from the burners caused the excess kerosene to become vaporized, and it was set on fire by the open flame, thus causing the explosion; and that the plaintiff, being without knowledge of the internal structure of the heater, was unable to set out specifically and in detail the particulars in which the heater was defective.
The plaintiff alleged: that the defendants were careless and negligent, in that they offered for sale, sold and delivered to him a kerosene heater with latent defects which the defendants knew, or should have known, existed; that such action on the part of the defendants constituted negligence on their part; and that the defects were such as to have attracted the attention of a prudent dealer, and because of the defects the heater was inherently dangerous.
The defendants filed a general demurrer to the petition on the following grounds: (1) the petition fails to set out a cause of action against them; (2) the petition shows on its face that no conduct on the part of the defendants was the proximate cause of the plaintiff's injuries and that the defendants were not negligent in any manner; (3) the petition shows that the heater was sold by, and that all representations in regard thereto were made by, the defendant Harper, and not by L. C. Ballenger, t/a Ballenger Furniture Company, and it is not alleged that Harper was acting in behalf of the other defendant or within the scope of his employment; and (4) the petition shows that the plaintiff caused the explosion complained of, in that the accumulation of kerosene which caused the explosion could have been caused only by the negligent operation of the oil stove by the plaintiff, in not turning the burners to an "off" position.
The court sustained the general demurrer and dismissed the action, and the plaintiff excepted.
1. The plaintiff's petition shows that he purchased from the defendants a two-burner oil heater, which was delivered to him in an open package and was placed and installed in his house by the defendant Harper, who represented it to be a new heater and suited for the purpose of heating his house, and who showed him how to operate it, during which demonstration the heater was lighted and allowed to burn for about twenty minutes. Some fifteen days thereafter, the plaintiff lighted the heater for the first time subsequent to its delivery, and it exploded and caused the injuries and damage complained of. It is alleged that the heater was inherently dangerous when it was placed in the plaintiff's house by the defendants because of latent defects therein, which were not apparent to the plaintiff on account of his lack of knowledge of the structure of the heater, and which could not have been discovered by him by the exercise of ordinary diligence. It is charged that the defendants were negligent in selling and delivering to the plaintiff a heater with latent defects, which the defendants knew, or should have known, existed. The plaintiff's suit is based on the breach of an implied warranty by the defendants in the sale of the heater to him.
Code, § 96-301, is as follows: "If there is no express covenant of warranty, the purchaser must exercise caution in detecting defects; the seller, however, in all cases (unless expressly or from the nature of the transaction excepted) warrants that — 1. He has a valid title and right to sell. 2. The article sold is merchantable, and reasonably suited to the use intended. 3. He knows of no latent defects undisclosed."
But it is contended by the defendants in error that the alleged defect in the stove was a latent or concealed defect, and that there was no obligation or duty on their part to discover such defect; and that, for this reason, the petition was subject to general demurrer. It was ruled in Snowden v. Waterman Co., 105 Ga. 384, 387 ( 31 S.E. 110): "The law imposes upon the vendee the duty of exercising caution in detecting defects; and hence it is a well-established rule, that where the defect is patent, or could have been ascertained by the exercise of diligence, there can be no recovery upon the ground of an implied warranty. In all such cases the doctrine of caveat emptor applies. But in cases of latent defects, the existence of which can not be ascertained by an examination of the property, the law protects a purchaser by imposing upon the vendor an implied warranty, whenever the defect is of such a nature as to render the article sold unsuited to the use intended. In cases of latent defects, therefore, the doctrine of caveat venditor applies." And it was held in the first headnote in that case: "A vendee of personal property, by making a personal examination and inspection of the same before the purchase with the view of determining for himself the quality and condition of the property, does not thereby waive an implied warranty by the vendor that the article sold is merchantable and reasonably suited to the use intended; and the vendee can maintain a suit for such breach of the warranty growing out of a latent defect which could not, in the exercise of due caution, have been detected; and this is true notwithstanding the vendor was ignorant of the existence of such defect." Also, see Snowden v. Waterman, 100 Ga. 588 (1) ( 28 S.E. 121). Implied warranty is a guaranty against loss from latent defects. Wilkinson v. Rich's Inc., 77 Ga. App. 239, 244 (2) ( 48 S.E.2d 552).
The allegations of the present petition are very similar to the allegations of the petition in King Hardware Co. v. Ennis, 39 Ga. App. 355, 356 ( 147 S.E. 119). The subject matter of that suit was a defective gasoline stove, which exploded, and in the present case it was a defective oil stove. It was said in that case (p. 360): "It is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article purchased and sold by him for the purpose of discovering latent or concealed defects, but that when he purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury. [Citations.] This is to speak only of articles which are not inherently dangerous. While we construe the petition in this case as alleging, not that the stove was inherently dangerous, but that it was dangerous because of a defect, we think it may be reasonably inferred from all the facts alleged that the defect was one which a reasonably prudent dealer should have discovered before placing it upon the market and delivering it to a customer."
It was alleged in the present case that the oil stove was inherently dangerous on account of the alleged defects therein; that the defendants delivered it to him in an opened package, installed it in his house, and showed him how to operate it; and that he followed their instructions in lighting the heater, when it exploded. It was further said in the King Hardware case (supra, at p. 361): "It is a matter of common knowledge that cooking stoves do not come in sealed packages, but are readily subject to be exposed, and usually are exposed, if not demonstrated, in the process of selling. It is well known that dealers selling such articles do as a matter of fact pretend to know something of their construction and of the manner of their manipulation, and the case is different from those instances where the dealer receives and transmits an article in an unbroken package, with no occasion to investigate or to become acquainted with its character. [Citations.] Thus, it can not be said that the defendants in this case should not have known of the defective condition of the stove in question. On the contrary, the petition, as against demurrer, sufficiently shows a duty of knowledge, and in such a case a charge of implied notice is sufficient. Where preliminary facts necessary to disclose duty of knowledge by the proprietor have been set forth, a statement, as a conclusion, that he knew or ought to have known is not objectionable as failing to show negligence."
2. As against general demurrer, the petition was sufficient to show that Harper was the agent of L. C. Ballenger, t/a Ballenger Furniture Company, and was acting for him in the sale of the stove to the plaintiff. Where agency is expressly averred, a general allegation is sufficient.
3. We are of the opinion, and so hold, that the petition set out a cause of action against the defendants, and that the court erred in dismissing the petition on general demurrer.
Judgment reversed. Felton and Worrill, JJ., concur.