Opinion
46794.
SUBMITTED JANUARY 7, 1972.
DECIDED APRIL 4, 1972.
Action for damages. Carroll State Court. Before Judge Brown.
A. Ed Lane, for appellants.
Howe Howe, Tisinger Tisinger, David H. Tisinger, for appellee.
1, 2. In an action for personal injuries the statute of limitation begins to run when the damage for the tortious act was actually sustained by the plaintiff.
SUBMITTED JANUARY 7, 1972 — DECIDED APRIL 4, 1972.
The appellee filed a claim against the appellants for personal injuries and damages to his home.
The petition alleged in part: On or about November 3, 1966, the defendants herein came to plaintiff's home for the purpose of installing a certain butane gas tank on plaintiff's premises, as defendant had contracted to do; in order to install said butane gas tank, the defendants purported to disconnect a gas tank containing liquified petroleum gas, which was at said time located beneath the ground of plaintiff's premises, said gas tank having been installed some ten years earlier; that defendants did represent and purport to plaintiff, that they, the defendants, had properly disconnected and drained said gas tank so that same would be safe and would prevent a hazard or danger to plaintiff or anyone else on plaintiff's property; that in purporting to disconnect said pre-existing butane gas tank on or about November 3, 1966, the defendants did then and there cut and sever a certain copper tube and pipe running from said tank into the cellar and basement of plaintiff's residence; that said copper pipe and tube was cut and severed within two feet of the dirt wall of said cellar of plaintiff's residence, and that the defendants failed and neglected to put any covering stopper or cap over said copper pipe and tube, then and there left by the defendants in the ground near plaintiff's cellar as foresaid.
It was further alleged that: the said new butane tank and system installed by defendants leaked, smelled bad, and failed to function properly so that plaintiff required several visits for repairs to be made by defendants and so that on or about December 11, 1966, at plaintiff's demand, defendants removed said butane gas tank and system installed by them; the plaintiff thereafter purchased a gas tank and system from another company; between December 1966 and this date, plaintiff has made no use whatsoever of said butane gas tank and system purportedly disconnected and drained by the defendants in November 1966; that because of the negligence of the defendants in improperly disconnecting said pre-existing butane gas tank and system, during the period from November 3, 1966 to June 25, 1969, gas and gaseous vapors leaked and flowed from said gas tank into said cellar, so that on June 25, 1969, the floor of the cellar was saturated with said gas and gas vapors; on or about June 25, 1969, plaintiff endeavored to light his gas operated hot water heater located in his cellar, by striking a match thereto; that plaintiff did strike a match and that as he placed said flaming match near the pilot light of said water heater, near the floor of said cellar, suddenly and without warning said cellar exploded; that as a result of said explosion plaintiff was engulfed in flames, and his body was thrown and dashed upon the floor of said cellar, and plaintiff's house was rocked, warped, broken, and damaged.
The defendants filed the defense of the statute of limitation, as to the plaintiff's claim for personal injuries, which was overruled. Upon the trial of the case a verdict was rendered for the plaintiff. The defendants then filed an appeal.
1. The only enumeration of error is on the overruling of the defense of the statute of limitation. The appellants contend the pleadings show that the tort, if any, occurred at the time the gas tank was improperly disconnected which was more than two years prior to the date the claim was filed. With this contention we cannot agree. In Chitty v. Horne-Wilson, Inc., 92 Ga. App. 716, 719 ( 89 S.E.2d 816), the plaintiff filed a suit against the defendants for damages which resulted when the furnace in his home exploded. The explosion occurred some time after the defendants had negligently attempted to repair the plaintiff's furnace. In regard to when the cause of action arose and the statute of limitation began to run the court referring to certain cited cases stated: "But none of the cases cited shows that the statute of limitations begins to run against a tort action at any time except when the damage from the tortious act was actually sustained by the plaintiff. In this case the statute began to run when the furnace exploded, for it was then that the plaintiff alleges he was injured. This being a tort action for personal injuries the cause of action could not have arisen until the injury was sustained on December 13, 1952. Therefore, the petition was filed within the two years allowed by the statute." See Anno., 4 ALR3d 821, 843.
Therefore, applying that which was held in the Chitty case, the statute of limitation did not begin to run in the case sub judice until the explosion occurred.
2. The appellants argue that Wellston Co. v. Sam N. Hodges, Jr. Co., 114 Ga. App. 424 ( 151 S.E.2d 481), is contrary to that which is stated above. The Wellston case held that where a building was improperly constructed "the statute of limitations commenced to run when the negligent acts were committed resulting in damage to the plaintiff in that case, the owner, and not when a portion of the building collapsed. This was based on a determination that legal injury to the owner had resulted long before the collapse of the building." Hunt v. Star Photo Finishing Co., 115 Ga. App. 1, 5 ( 153 S.E.2d 602). However, the Chitty case held that in a personal injury case the cause of action did not accrue until the injury took place.
The appellants also argue that where a tort action is brought against a doctor for malpractice the statute of limitation commences to run at the time at the time the negligent or unskillful act was committed. While this is true under most circumstances, it is not always the case. In Parker v. Vaughan, 124 Ga. App. 300 ( 183 S.E.2d 605), it was held that the statute of limitation did not begin to run until the patient discovered or should have discovered the surgeon's negligence.
The overruling of the defense of the statute of limitation was not error.
Judgment affirmed. Hall, P. J., and Pannell, J., concur.