Fulton Ice & Coal Co. v. Pece, 116 S.E. 57

Fulton Ice & Coal Co. v. Pece

116 S.E. 57

Ga. Ct. App.

1923

Check Treatment

Bell, J.

(After stating the foregoing facts.)

1. In thе statement, of facts it was necessary to refer to both the defendant companies, and their names were simply abbreviated therein. The Standard Company filed no demurrer, and we are concerned in this opinion only with the demurrer of the Fulton Company; so that this company will herеinafter be referred to as the defendant, and the plaintiff in the court below will be called the plaintiff herein.

The petition would seem to present a case of more or less complexity, but the difficulties which would appear at the outset are to a great extent remоved when once we conceive the relation existing between the plaintiff and the defendant, and the duty owing by the latter to the former. Very fortunately for the writer, this relation has been clearly determined and the duty well defined by the opinion of this court by Judge Powell in the case of Huey v. Atlanta, 8 Ga. App. 597 (70 S. E. 71). We сould not hope to add anything worth while to what he has said in that case. Suffice it to observe that the relation is that of an owner or occupier of land and his invitee. The duty owing by the defendant to the plaintiff is founded upon that principle which is codified in section 4420 of the Civil Code (1910) as fоllows: “Where the owner or occupier of land, by express or implied invitation, in*515duces or leads others to come upon his premises for any lawful purpose, he is-liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Whether, under the relation which we have seen to exist, it was the duty of the defendant to inspect its premises or to warn the plaintiff of any defects therein depends upon the meaning of this section of the code, which as we undеrstand imposes a liability not only for known defects, but for those which could have been known in the exercise of ordinary care, whether ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍actually known or not. It is the duty of the proprietor in such a case to use ordinary care to see that his premises are. in a safe condition for those whom he invites thereon for any lawful purpose, either expressly or by implication. If he does not know the condition of his premises, it is his duty, in the exercise of ordinary care, to find out their condition, and he will be liable for such defects as a reasonable inspection would have disclosed. We think this conclusion is inevitable from the following cases in which the duty of the proprietor, herein dealt with, was involved. Atlanta Oil Mills v. Coffey, 80 Ga. 145 (2) (4 S. E. 759, 12 Am. St. R. 244); Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060); Monahan v. National Realty Co., 4 Ga. App. 680 (62 S. E. 127); Pacetti v. Central of Georgia Ry. Co., 6 Ga. App. 97 (67 S. E. 302); Moone v. Smith, 6 Ga. App. 649 (65 S. E. 712); Central of Georgia Ry. Co. v. Hunter, 128 Ga. 600 (1); Huey v. City of Atlanta, supra. If there were defects in the drum or tank as alleged, they may be treated as defects of the premises, since this affected the safety of the premises within the range of danger from the explosion.

If I invite another upon my premises upon a matter of business of concern to myself, I am liable to him for such injuries as he may suffer by reason of any defects which, in the exercise of ordinary care, an inspection would have disclosed. If I do not know of the condition of my premises, I am still liable if I could have ascertained the same by a reasonable examination. It is my duty to exercise ordinary care to find out the condition,— to see what that condition is. If I do not know, how may I know unless I inspect? It is my duty to warn such one of defects of which I know and of which he does not know or could not have known in the exercise of ordinary care, but how may I warn him of defects *516if I do not know of them myself ? Of course I can not warn him of these specificalty, but this does not relieve me of a liability for a failure to warn altogether. If I do not know the condition, and have not made an inspection thereof, but could have known by the exercise of ordinary care, then I am liable for a failure to warn, to the same extent as if I had known. - If I do not know the condition and have not exercised ordinary care to find out, I should at least warn my invited guest to look out for himself. I should warn him of that possible danger in whatever I have not myself exercised ordinary care to examine.

In the case at bar, under the allegations as made, it can not property be said as a matter of law that there was no duty to inspect and no duty to warn. The defendant owed to the plaintiff, of course, only the duty of exercising ordinary care for his safety. If this ordinary ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍care required an inspection and warning, the defendant would be liable for a failure in these respects. These matters should be submitted tо a jury, but can not be so submitted when they are stricken from the plaintiff’s petition. We think they should not have been stricken.

It was stated by the Supreme Court of the United States in the case of Bennett v. Louisville & Nashville Bailroad Co., 102. U. S. 577, wherein the plaintiff sought damages for injuries caused to her by defects in a wharf uрon which she was impliedly invited, that it was “the plain duty .of the company to take such precautions, from time to time, as ordinary care and prudence would suggest to be necessary for the safety of those who had occasion to use the premises for the purposes for whiсh they had been appropriated by the company, and for which, with its knowledge and permission, it was commonly used by. the public.” But it is claimed that an inspection of this particular instrumentality, which was a “ closed vessel,” is shown by the allegations of the complaint to have been altogеther impracticable, if not impossible. If the defendant did not know that it' was in a safe condition for the purpose in hand, it was its duty, as above concluded, to find out, if it could do so in the exercise of ordinary care. If by the exercise of such diligence its' condition could not have beеn found out, then the defendant should not, in ignorance thereof, under the case- as pleaded, have dealt with the instrumentality in the manner alleged. If ordinary cafe requires an inspection, it requires that *517inspection even if it may be difficult. The difficulty of the inspection does not determine thе degree of care, but the degree of care may determine the extent of the inspection. In other words, to say that one should make an inspection, however difficult it may be, does not impose a higher degree of care than ordinary care, provided that to the extent of such care the inspection was required. If ordinary diligence demands an inspection, then the difficulty of making that inspection, however great, will not enlarge the degree of diligence which the law requires. Again, there may be other modes of inspecting an instrument such as this drum besides a visual examination; as a matter of law we can not say. An expert might determine its condition by sounding or in other ways which might suggest themselves. It can not be held as a matter of law that an inspection was so impracticable as that in ordinary diligence it could not have been done.

In the case of Richmond & Danville R. Co. v. Elliott, 149 U. S. 266 (2), which was an action for damage to an employee of another, -lawfully upon the premises of the defendant, who was injured by reason of an explosion of a boiler alleged to have been defective, the court said: “ The injury was caused by the explosion of a boiler of an engine, and it is insisted that the testimony shows that the engine was handled properly and carefully; that the defect in the iron casting of the dome ring, which, after the explosion was found to have existed, was a defect which could not with the exercise of reasonable care havе been discovered by the company; and that it took all reasonable and pyoper care to test the boiler and engine, and from such test no defect was discovered. Hence the contention is that the court should ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍have instructed the jury to find a verdict for the defendant. Pеrhaps, in view of what may be developed on a new trial, it is not well to comment on the testimony in respect to these matters. Whether there was negligence in respect to the accumulation of steam is a question of fact, involving, first, the capacity of the boiler, the amоunt of steam which had accumulated, and the precautions which were taken to prevent its going above a certain pressure. With regard to the defect in the iron casting, which seems to have been revealed by the explosion, it may be said that it is not necessarily the duty of a рurchaser of machinery, whether simple or complicated, to tear it to pieces to see if there be not some latent defect. If he purchases *518from a manufacturer of recognized standing, he is justified in assuming that in the manufacture proper care was taken, and that proper tests were made of the different parts of the machinery, and that as delivered to him it is in a fair and reasonable condition for use. We do not mean to say that it is never the duty of a purchaser to make tests or examinations of his own, or that he can always and wholly rely upon the assumption that the manufacturer has fully and sufficiently tested. It may be, and doubtless often is, his duty when placing the machine in actual use to subject it to ordinary tests for determining its strength and efficiency. Applying these rules, if the railroad company after purchasing this engine made such reаsonable examination as was possible without tearing the machinery to pieces, and subjected it fully to all the ordinary tests which are applied for determining the efficiency and strength of completed engines, and such examination and tests had disclosed no defect, it can nоt in an action by one who is a stranger to the company be adjudged guilty of negligence because there was a latent defect, one which subsequently caused the destruction of the engine and injury to such party.” That case originated in Fulton county, Georgia.

We think we can with stronger rеason in the case at bar, wherein the vessel is alleged to have been old, worn, and long in use by the defendant, say, as did the Supreme Court, that we can not hold “ that it is never the duty of a purchaser to make tests or examinations of his own, or that he can always and wholly rely upon the assumption that the manufacturer has fully and sufficiently tested. It may be, and doubtless often is, his duty when placing the machine in actual use to subject it to ordinary tests for determining its strength and efficiency.” Of course, these rulings apply only to cases where the invitee is upon only those parts of the premises which are necessary for ingress and egress, or whose use is necessary or incidental to the mutual purpose or business of the invitation.

2. It is urged in the argument upon the general demurrers that the allegation in the plaintiff’s petition, that the defendant knew or in the exercise of ordinary care should have known of the defective condition of the drum, fails to show any responsibility as for knowledge. While the plaintiff was not an employee of the defendant, yet the duty which the defendant owed to the plaintiff *519in respect to the premises is quite analogous to that of the mаster to his servant in regard to furnishing the servant a safe place to work, and under which duty the master is liable for such defects in the place as he knew of, or of which he ought to have known in the exercise of ordinary care. In this class of cases it has been held that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍where facts are pleaded which disclose the relation from which such duty of the master arises, a general allegation that the master knew, or ought in the exercise of ordinary care to have known, of defects resulting in injury to the servant is not objectionable and is sufficient to charge a liability upоn the master for such defects. Cedartown Cotton &c. Co. v. Miles, 2 Ga. App. 79 (1), 82 (58 S. E. 289); Southern States Cement Co. v. Helms, 2 Ga. App. 308 (58 S. E. 524). A different rule prevails, however, in that class of cases where such duty does not arise merely from the relation, that is to say where a duty arises only after knowledge, and where there is no duty to know. Babcock Lumber Co. v. Johnson, 120 Ga. 1030 (6) (48 S. E. 438); Fraser v. Smith & Kelly Co., 136 Ga. 18 (2) (70 S. E. 792); Thomas v. Georgia Granite Co., 140 Ga. 459, 460 (79 S. E. 130); Central of Georgia Ry. Co. v. Tapley, 145 Ga. 792 (2) (89 S. E. 841). The Babcock case, just‘cited, was one of master and servant, but the plаintiff alleged that his injuries resulted from a defective beam with which he came in contact, but which was no part of the machinery and no part of the premises upon which he was called upon to perform his work, and that he was using the beam for an unintended purpose and outside of thе scope of his duties. Therefore it was held in that case that the relation did not raise the duty on the master to know of its defective condition, and that the mere general allegation that the master knew or should have known of the defect was insufficient as a charge of notice. We think that the case now at bar comes within the class first mentioned, holding that where the facts show the relation from which the duty to know arises, a general averment that the defendant knew or ought to have known of the defects from which the injury resulted is sufficient to set forth a cause of action in this particular respect.

3. We are asked to apply in this case the rule announced in Dartmouth Spinning Co. v. Achord, 84 Ga. 14 (10 S. E. 449, 6 L. R. A. 190), to the effect that a repairer of machinery assumes *520the risk of defects which he is called upon to repair or which are incident thereto, though concealed. We do not think the decision in that case is at all in the way of holding that under thе allegations of plaintiff’s petition he did not assume the risk of the alleged defects which resulted in his injury. His petition as amended discloses that they were in no way connected with those which he was called upon to repair, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and by clear implication it is averred tliat the injury did not result from thе defects he was sent to repair, nor from others incident thereto, nor from his faulty workmanship, but from an independent condition of which he was not informed. Of course, it would be another matter if his evidence at the trial should reveal such facts as would bring him within the rule of that case. • In this connection see Huey v. City of Atlanta, supra.

4-6. We think it is unnecessary to add anything to the statements contained in headnotes 4, 5, and 6.

7. Applying the foregoing principles to this case, the court erred in overruling the special demurrer to the second count, in which it was urged that no acts of negligence were sufficiently spеcified, but did not err in overruling any of the other demurrers either general or special. It was error, however, to sustain the defendant’s other special demurrers.

It may again be noted that no questions which were raised by the demurrers were referred to by counsel for either side in their briefs except such as are dealt with in this opinion.

Judgment reversed on both bills of exceptions.

Stephens, J., concurs. ■ Jenlcins, P. J., disqualified.