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Action for damages. Before Judge Atkinson. Chatham Superior Court. July 2, 1953.
The trial court did not err in overruling the general demurrers to the petition, nor in sustaining certain of the special demurrers to allegations of the petition respecting an element of damages claimed which was not recoverable.
Johnny S. Spahos brought a suit against George G. Altman and Kuhr Brothers, Incorporated, in Chatham Superior Court. His petition is in two counts, each of which is in substance the same, except that in one count he treats Kuhr Brothers, Incorporated, as the agent of Altman, and in the other he alleges it to be an independent contractor. The petition alleges in substance: that the plaintiff entered into a contract with Altman to purchase from Altman a house located in Savannah Beach, Georgia; that Altman agreed to furnish a furnace for the house, before conveying the house to the plaintiff; that in compliance with the contract Altman engaged Kuhr Brothers, Inc., to install the furnace; that the furnace was installed in the house with a furnace pipe resting against some of the woodwork of the house, namely a door header; that the defendants violated the following ordinance by installing the pipe, a flue, so that it came within two inches of the wooden portion of the house: "Be it ordained by the Mayor and Councilmen of Savannah Beach, Tybee Island, and it is hereby ordained by the authority of the same, as follows: . . . Sec. 5 . . . (g) All wooden and other combustible construction shall be kept at least two inches from chimneys and flues . . ."; that the pipe was covered only by a very thin layer of asbestos; that placing it against the wooden door header created an imminent danger of causing the house to catch fire and burn; that the defendants violated another part of the city ordinance by not having the work inspected by the authorities of the city, that part being as follows: Sec. 6 (b) "Flues not conforming to the requirements for chimneys shall be used only if of a type approved by the building official . . ."; that the flue installed did not conform to the requirements for chimneys; that the type of flue installed by the defendant Kuhr Brothers, Inc., was never approved by the building official; that the failure to obtain the approval of the building official for this type of flue was negligence; that such negligence was a proximate cause of the damages sued for by reason of the fact that, had the defendants not been guilty of such negligence, their plan to install this particular type of flue would have been detected by the building official and the danger of the house burning would have been discovered, revealed, and averted; that the defendants failed to obtain from the Building Inspector of the Town of Savannah Beach a building permit for the installation of the furnace; that section 4 of the Building Code of the Town of Savannah Beach, ordained by the mayor and councilmen of said town in council assembled on March 6, 1947 provides: "Application for a building permit must be made by the owner or his agent accompanied by a set of plans or blueprints together with specifications of the work to be done . . . A permit must be secured for . . . all alterations"; that the failure of the defendants to obtain a building permit for said alteration was a violation of the law and was negligence; that such negligence
was a proximate cause of the damages sued for, by reason of the fact that, had the defendants not been guilty of such negligence, their negligent plan for construction or alteration as aforesaid would have been detected by the building inspector, and the plan would not have been allowed to be carried out; that the defendants "knew, or from the fact of the proximity of the said smoke pipe or flue to the said wooden structure, should leave realized that the furnace was or was likely to be dangerous for the use for which it had been intended; that the defendants had no reason to believe that the persons for whose use the furnace was installed would realize its dangerous condition; that tho defendants failed to inform the plaintiff and failed to do anything to inform the plaintiff of the dangerous condition of the furnace or of the facts which made it likely to be dangerous; that the dangerous condition was unknown to the plaintiff; that the plaintiff, not knowing of the danger, moved his family and household effects into the house and began using the furnace; that by reason of the contact of the flue with the wooden header, the house caught fire and burned, causing the plaintiff enumerated damages.
The defendants' general demurrers to the petition were overruled, and they except in separate bills of exceptions. Certain of the defendants' special demurrers to the petition were sustained, and the plaintiff excepts thereto by cross-bill of exceptions.
1. The action is one ex delicto and not one ex contractu. While the plaintiff sets out in his petition a copy of the sales agreement between himself and the defendant Altman, which contained the agreement as to the installation of the furnace, he does not predicate his action on a breach of a contract provision or of an express duty undertaken by Altman under the contract. The contract was alleged to show that the plaintiff and Altman stood in the relationship of vendor and vendee, and to show that Altman owed to the plaintiff the peculiar duties owed by a vendor to a vendee, and it is for the violation of one of these peculiar duties which arose by reason of their relationship that the plaintiff sued. Rushin v. Central of Ga. Ry. Co., 128 Ga. 726 (58 S. E. 357). It is also for this reason that the question of the merger of warranties and covenants in deeds does not arise in this case. The duty sued on has its source in the law and not in the contracts. MacPherson v. Buick Motor Co., 217 N. Y. 382 (111 N. E. 1050).
2. (a) Over and beyond the obligation in contracts, it is fundamental that every person owes a duty to exercise ordinary care not to supply by sale, lease, etc., a thing, instrumentality, or building which is so defectively constructed or conditioned as to be imminently dangerous to the person to whom supplied or subject to damages itself by reason of its condition. Moody v. Martin Motor Co., 76 Ga. App. 456 (46 S. E. 2d 197); Restatement of the Law of Torts, p. 1039, 388. The pleaded ordinances in this case were passed for the purpose of preventing such catastrophes as the one alleged in this case. The owner of the property and the contractor, it would seem, are the ones upon whom the primary duty of permits and inspections is placed. A purchaser of a house would have a right to assume that the permits had been granted and the proper inspections made. The basic premise is that the owner should procure experts to do the construction work and/or have the work inspected and checked and approved by official experts to render the property safe for use.
(b) While ordinarily an independent contractor is relieved of liability where the work contracted for is accepted by the owner, an exception applies when the work is so defectively done as to be imminently dangerous. Moody v. Martin Motor Co., supra; Davey v. Turner, 55 Ga. App. 786 (191 S. E. 382); Young v. Smith & Kelly Co., 124 Ga. 475 (52 S. E. 765, 110 Am. St. R. 186, 4 Ann. Cas. 226); Holland Furnace Co. v. Nauracaj, 105 Ind. App. 574 (14 N. E. 2d 339); McCloud v. Leavitt Corp., 79 Fed. Supp. 286. In such a case the independent contractor is not exonerated. Neither should the owner be excused, especially under the facts of this case where the permits and inspections were not procured. The owner in such a case cannot relieve himself or his contractor without exercising ordinary care to see that the property can safely be supplied to others for use. To be imminently dangerous, it is not necessary for the article or instrumentality to cause damage immediately upon its first use. The nature of the article or instrumentality is the primary consideration in determining whether it is imminently dangerous. We cannot say as a matter of law that, because the furnace installation was completed prior to November 3, 1952, and the plaintiff's house did not burn until January 4, 1953, the furnace installation was not imminently dangerous.
(c) The principle above discussed has been applied in this State as to personal injuries. We see no reason why it should not be applied to a case where the breach of duty resulted in loss of property and where, but for the fortuitous working of fate, the loss of life or serious personal injury might have resulted.
(d) The petition alleges that the defendants' individual negligence combined to produce the plaintiff's injuries; therefore the defendants are joint tortfeasors as to the plaintiff, and can be joined as defendants in a single action. Hopkins v. City of Atlanta, 172 Ga. 254 (157 S. E. 473).
3. The negligence of the defendant Altman did not become the superseding sole proximate cause of the injury because it does not appear that Altman sold the house with actual knowledge of the contractor's negligence. We cannot say as a matter of law that the plaintiff was negligent in not discovering the defect and avoiding the consequences thereof and that such negligence was the sole proximate cause of his injuries, when he had the right to presume that permits had been granted and proper inspections made.
4. The plaintiff alleged that the flame from the beam or moulding spread through the furnace room to the back bedroom, where the plaintiff's eleven-year-old son was sleeping, and to the entire attic of the house, and that after the flame was discovered, the plaintiff made two attempts to save his son from the smoke and flames in said bedroom before he was able to carry him to safety. The plaintiff further alleges: that the defendants' negligence resulted in agonizing fright and anxiety to the plaintiff, arising out of his fear for the safety of his wife and four small children; that the natural consequence of the shock of such fear was a mental anguish which the plaintiff suffered over the safety and welfare of his family; that the mental anguish and anxiety continues by reason of the concern the plaintiff still has for the welfare of his children and his wife, who are still suffering from the shock caused by such negligence. Special demurrers to the allegations of mental pain and suffering were sustained, and these allegations were stricken. This judgment is excepted to in the cross-bill of exceptions.
The plaintiff contends that he is entitled to damages for mental pain and suffering, because (1) there was an injury to his "purse," in that he suffered financial loss in the burning of his house; and (2) the defendants' negligence amounted to "recklessness, wantonness, a complete want of care, absolute disregard for the safety of others and a conscious, callous indifference to the consequences of such negligence." Many cases state that a person cannot recover damages for mental pain and suffering in cases where mere negligence is the basis of the action unless there is present an injury to the person or "his purse," or where there is an injury to the person or he suffers "pecuniary loss."
We think that the plaintiff has misinterpreted what is meant by an injury to a person's purse. The probable keystone of our law on this matter is Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183). Many cases contain various interpretations and applications of the law as announced in the Chapman case. We think that the correct interpretation of this principle is as follows: In cases where mere negligence is relied on, before damages for mental pain and suffering are allowable, there must also be aid actual physical injury to the person, or a pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person's reputation, or the mental pain and suffering must cause a physical injury to the person. Sappington v. Atlanta & W. P. R. Co., 127 Ga. 178, 181 (56 S. E. 311); Goddard v. Watters, 14 Ga. App. 722 (1) (82 S. E. 304); Williamson v. Central of Ga. Ry. Co., 127 Ga. 125 (4a) (56 S. E. 119); Hines v. Evans, 25 Ga. App. 829 (105 S. E. 59). We can find but one case in Georgia where a person sought damages for mental pain and suffering in addition to damages to his personal property. In Davis v. Hall, 21 Ga. App. 265 (2) (94 S. E. 274), it was held that, "Where the injury complained of is not a personal tort, but an injury to property, there can be no recovery for mental suffering"; and while the court erroneously based its conclusion on Stovall v. Caverly, 139 Ga. 243, 246 (4) (77 S. E. 29), we think that the statement of the law is a correct one. See 15 Am. Jur., Damages, 181, p. 598; 25 C. J. S., Damages, 68, p. 555. In cases where mere negligence is not relied on, but the conduct complained of is malicious, wilful, or wanton, mental pain and suffering may be recovered without the attendant circumstances mentioned above. Young v. W. & A. R., 39 Ga. App. 761 (158 S. E. 414): Atlanta Hub Co. v. Jones, 47 Ga. App. 778 (171 S. E. 470); Dunn v. Western Union Telegraph Co., 2 Ga. App. 845 (3) (59 S. E. 189). While the plaintiff alleges that the defendants' conduct amounted to a wanton disregard of the safety of others, we think that the particular facts alleged do not support that conclusion. It is not alleged that the defendants had actual knowledge that the manner in which the furnace was installed would almost positively result in the burning of the house, and that with this knowledge the defendants with utter disregard for the consequences proceeded to install the furnace in such manner. Since the injury sued for was to property only and the conduct sued upon was not malicious, wilful, or wanton, the court did not err in sustaining the demurrer to the allegations and in striking them.
The court did not err in overruling the general demurrers to the petition, and in sustaining the special demurrers to the allegations of mental pain and suffering.
Judgments affirmed. Felton, C. J., and Nichols, J., concur.
Emanuel Kronstadt, for G. G. Altman.
Lewis, Wylly & Javetz, for Kuhr Bros., Inc.
Sullivan & Maner, for J. S. Spahos.
Saturday May 23 03:22 EDT

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