Summary
In Mississippi Power Light Co. v. Thomas, 206 Miss. 201, 39 So.2d 759, on reh., 206 Miss. 229, 40 So.2d 597 (1949), Mississippi Power and Light Company had laid a pipeline using dresser couplings and a garage was constructed over the pipeline.
Summary of this case from Entex, Inc. v. McGuireOpinion
April 11, 1949.
1. Negligence — sole intervening or proximate cause — concurrent causes.
A gas pipe line was laid underground by appellant in a vacant lot and about three years later a garage with a dirt floor was erected over the pipe line and thirty-eight (38) days thereafter appellee was injured by an explosion of gas which had escaped into the garage from a break or disconnection in a coupling joint in the pipe line about three or four feet below the surface of the dirt floor at that point, and in an action against it appellant defended that the cause of the injury was negligence in locating and erecting the garage: Held (a) That this would not completely absolve appellant unless it were the sole intervening cause, and (b) that if both appellant and he who erected the garage were guilty of negligence proximately contributing to the injury, appellee could recover from either, regardless of the exent of their respective contributions — that if the precedent negligence of appellant was activated or augmented by the act of another to the point of actual injury, appellant would be answerable for its fault.
2. Negligence — foreseeability — when issue of fact.
Under the stated facts it was defended that the erection of the garage was not a reasonably foreseeable contingency against which appellant was obliged to guard: Held that this was a factual issue to be submitted to the jury on proper instructions, and that having been done, no maintainable ground for reversal was presented on that issue.
3. Negligence — safe appliances — standards of general use — requirements of municipal ordinance.
In the stated situation appellee charged that appellant had used an improper and unsafe gas pipe coupling, and sought to avail of a city ordinance which prohibited that particular type of coupling. The court granted instructions, however, supported by ample proof that if appellant used a coupling, as it did, which was recognized by the trade and general custom as standard and proper when properly installed, there would be no liability as to the type of coupling used, whence on review it was concluded that the controlling issue in the verdict was an improper installation and that the implication of the city ordinance would not require a reversal.
4. Negligence — installation of gas pipe line.
In the stated situation appellee charged that appellant was negligent in the installation of the gas pipe line, particularly as respects the coupling which later broke or became disconnected: Held that this was a factual issue to be submitted to the jury on proper instructions, and that having been done, and the evidence being sufficient on that issue to support the verdict, no reversal could be ordered on that feature.
5. Evidence — opinion evidence — expert witnesses — pipe line installations.
Witnesses who have had special training in installation of gas pipes and fittings, although not experts in the full sense, may give expert testimony as to facts within their special knowledge, and that they were not qualified generally as experts would affect only the weight of their testimony.
6. Appeal — extent of damage personal injury — absence of testimony by physician.
An award of damages for personal injuries in an explosion of gas was not disturbed because not found to be such as to evince passion and prejudice, although no physician was called to appraise the extent and duration of the injuries or their causal connection with the explosion.
Headnotes as revised by Alexander, J.
Smith and Roberds, JJ. and McGehee, C.J. dissenting.
APPEAL from the circuit court of Yazoo County; H.B. GILLESPIE, J.
Henry Barbour, Green Green, and A.M. Nelson, for appellant.
When constructed, there was nothing above this gas line and Thomas the owner never gave appellant any intimation that such a garage as was constructed would be constructed and at the date when the pipe was installed appellant was not required to foresee this construction by Thomas and was authorized to make the installation upon the theory that the line across the vacant lot would remain as was. Assuming, which we deny, that the Dresser coupling was an improper appliance this court said in Roberts v. Mississippi Power Light Co., 193 Miss. 627, 10 So.2d 542, 543: "The measure of prudence which is an element of the definition (of reasonable care) must in turn involve reasonable probabilities according to normal human experience. Such probability in turn involves not an absolute prescience but a degree of foreseeability which consists with normal experience and observation . . .".
Approved by Mr. Justice Alexander in Allgood v. United Gas Corporation, 204 Miss. 94, 37 So.2d 12, where in dealing with the factual background he appropriately declared: ". . . Most recently, we reaffirmed our former holding in Danciger Oil Refining Company v. Free, (Miss.), 35 So.2d 542, 544, that `Courts in civil cases act upon reasonable probabilities. In trials under the common law, to prove a possibility only, or to leave the issue to surmise or conjecture, is never sufficient to sustain a verdict.' In that case, there was negligence by the master in furnishing a faulty appliance. Yet, a verdict for the servant was set aside upon the ground that the act of the servant, which was a link in the causal chain, was the immediate cause of the injury, and we reiterated the established principle that `proof, without more, than a certain event transpired as a result of a stated condition, is proof only of the possibility and does not establish the probability.'
"Injury does not, of itself, imply liability, nor danger negligence; nor yet does causal connection establish, of itself, legally proximate cause. Reasonable foreseeability remains the only just and dependable test. Pollock, Torts, 9th Ed., 32; Salmond, Law of Torts, 6th Ed., 131; Prosser on Torts, page 341; Holmes, The Common Law, p. 56. . . .
"We have lately held that `the master is not liable where the place or instrumentality becomes or remains unsafe because of a breach of duty on the part of the injured servant.' Wilke v. West Const. Company of Tennessee, 196 Miss. 233, 16 So.2d 154, 155, 617. . . ."
Appellant was not required to foresee construction of an 80,000 pound concrete wall without footings directly above a coupling. Thereasto, it had no notice and having none, negligence may not be predicated on this condition. Further, as said in the Allgood cases, supra, p. 13: "We do not think that the proof offered was sufficient to establish that the defendant was guilty of negligence under the first ground above mentioned, since it was not shown with sufficient clearness that the presence of the object in the pathway of the servant on which he stepped, slipped and fell was known to the master or that it had been there for a sufficient time for it to have been discovered by the exercise of reasonable care." This construction by Thomas, the owner, constituted thus the sole proximate cause of the injury, the proximate cause of the fire was the construction, in the manner that it was constructed, of this garage. As owner Thomas might do with his own substantially as he saw fit. Compare McDonald v. Wilmut Gas Oil Co., 180 Miss. 350, 176 So. 395.
As shown by the graph drawn by appellant's engineers from this record, it is quite indisputable that the displacement of this union was under the weight of the concrete which had sunk during this rainy spell 8" into the earth exerting in its downward journey on the underlying Dresser coupling the pressure through the earth lying below the concrete and above the coupling. That thus done as shown by the graph was solely the act of Thomas who did not appear as a witness and therefore, as against his daughter, it may be assumed that if called his testimony would have been adverse. Compare Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Anderson v. Telephone Co., 86 Miss. 341, 38 So. 786; Southern Bell Tel. Tel. v. Quick, 167 Miss. 438, 149 So. 107. This installation without notice by Thomas was that which proximately caused this injury. Compare Lone Star Gas Co. v. Eckel, 110 S.W.2d 936, wherein it is said: "It cannot be said that appellant (gas company) should have anticipated that the owners of the school premises would be negligent in extending its gas lines, or that they would breach the provisions of the city ordinance in question, but it had the right to assume that the extension pipes were sufficiently secure to permit the flow of gas in them, unless it was actually put upon notice that defects probably existed, or were given such information as would put a reasonably prudent person upon notice that defects probably existed, making the flow of gas on the premises dangerous.
"If this were not a sound and necessary rule, then whenever a consumer of natural gas caused a new stove to be installed on his premises by a plumber of his own selection, the gas company could be held liable for damages resulting from a gas leak occasioned by the negligent acts of such plumber. Triplett v. Alabama Power Co., 213 Ala. 190, 104 So. 248. . . .
"We cannot find any just reason to hold that the Gas Company is an insurer of the safety of the gas pipes on a consumers premises, or of the fitness of such pipes for use.
"The remaining issues have to do with the negligent acts, if any, of Weir, Erwin, and Adams, who did the piping for the school district. In each instance the jury was asked to find whether or not the negligent act found was the sole proximate cause of the explosion.
"We believe such a charge is error.
"If any designated act of such persons became the sole cause of the leaks and the explosion, appellant would be excused from all responsibility, regardless of the element of foreseeableness on the part of such persons".
This accident occurred on the private property of Mr. Thomas in a service line thereon located as to which we submit appellant had no further duty after installation than to repair leaks therein if Mr. Thomas should so fail. In short, while appellee was interested in ownership of the gas before it passed through the meter, still, there having been no danger whatsoever through the installation across the vacant lot, appellant was not called upon to take any action until it should have notice of the leak. Compare Mississippi Power Light Co. v. McCormick, 175 Miss. 337, 166 So. 535, where notice of escape is made a condition of responsibility. Compare especially annotations in the A.L.R.'s, supra, where under the heading IV, entitled "Notice of Leak" these cases are collated, and in many instances the duration of leak on the vacant property was for several weeks.
Herein, let it be noted that assuming all other factors, when there was the installation of this garage wherein the gas could be confined that was the predicate which rendered explosion possible. When the installation was, no notice whatever of an intent thus to build was given appellant, and no notice whatsoever of the character of this building, and that whereof in this aspect we here complain is that the property owner, desiring thus to construct, must have given certainly appellant definite information thereof. At the date of the installation, about two and a half years before, no one dreamed there would be a garage of this type and that against which appellant at most was obligated to guard were those dangers inherent in pipe construction across a vacant lot. Suppose appellee's father had seen fit to erect a ten story building on this corner with a sub-basement, appellant would not, in order to have served this residence, been compelled to anticipate any such improvement or make his construction accord therewith, certainly initially. Compare Lone Star Gas Co. v. Eckel, (Tex. Civ. App.), 110 S.W.2d 936, epitomized in 138 A.L.R. 878, thus: ". . . when the owner or person in control of the premises desired to install new pipes and make further extensions on the premises, the gas company could not be held for defects in the installation, or for a failure on the part of the workmen to comply with the city ordinance, unless actual knowledge of the condition that made the use of gas on the premises dangerous was brought home to the gas company". Compare Wilson v. East Gas Co., 68 Ohio App. 490, 42 N.E.2d 180.
Appellant may never be guilty of negligence unless it has notice (actual or constructive) of that which makes its act wrongful. So long as appellant was ignorant of the building without fault no responsibility could be on appellant placed under the authorities collated supra.
To be guilty of negligence one must fail to do that which a reasonable person under similar circumstances would do. Here appellant was not called upon to anticipate that which was then non-existent and whereof it had no notice. Actual conditions alone existing at the date of the installation conditioned the conduct of appellant and when this instruction, predicated liability for that done as to the garage, whereof appellant had neither knowledge nor notice, the law, with deference, was thereby thereasto violated. Had appellant been advised that a garage of this character was to be constructed under sound practice appellant would never have constructed a gas line under a building. It just isn't done. The danger of escaping gas with out the possibility of so ascertaining precluded. If a gas line is constructed under a building it always is encased in a larger pipe so that in case of leakage the gas is brought from under the structure.
In short, the service line as initially constructed was wholly harmless and the proximate cause of the injury was the erection of a building which prevented the escape of the gas into the open air after, with deference, we submit, such building had by its own weight broken the joint. Compare Mississippi Public Service Co. v. Cunningham, 189 Miss. 179, 195 So. 472, wherein the court said: "The appellant (Mississippi Public Service Co.) here was not required to anticipate or foresee that Mrs. Cunningham would order Dill to connect its property with the gas pipe, and that he would obey her by doing so.
"The efficient intervening last contributing proximate cause of this explosion was the joint act of the owner and Dill to which the gas company did not contribute by installing its meter and leaving it unconnected."
The award herein was $3,000, the total amount sued for. Appellee assumes to itemize the damages, aggregating $132.60. She assumes to claim alleged nervousness as a result. The alleged burns were about the face, neck, both arms and hands. She was burned up to the elbow on both arms, all around her neck, eyelashes and eyes were burned, eyebrows and eyelashes singed off.
Appellee remained at the hospital until Tuesday afternoon. She stayed in partially thirty days or more, and was subject to treatment by the physician possibly as much as two months, and claimed severe pain. Appellee did not have a physician to testify, nor show the number of visits or any relevant facts by a doctor. It appears that there was a first degree burn on the back of her right hand, probably not very large, and elsewhere apparently nothing other or further than a reddening of the skin with a singeing. The registered nurse detailed in a general way that the face and neck were red but apparently, though the nurse was the employee of Dr. McCalip, she testified she saw the appellee but once. Although appellee claims that she was compelled to put on glasses no oculist was by her called to show that as a proximate result this occurred, or could occur. It may well be that appellee had reached such an age as that in due course glasses were essential. The proof as to this is purely speculative. Further, without specification other than being greased and bandaged, injury was claimed as to her feet and legs, and the only alleged scars were discoloration claimed by appellee to have resulted. Whether permanent or not, she did not undertake to have a physician tell the jury. The extent of the nervousness is left in serious doubt. It appears that she received her room and board during the time of the alleged injury and voluntarily made no claim of her family for $35.00 a week which she admits she could have received had she been minded to demand. The exact relationship to the store is in no way made clear and it may be that she remained away from the store by reason of the singeing of her lashes and brows. There is no proof of physical disability requiring such absence, certainly none from a competent physician. Failing to call the physician contains implications that if called his testimony would probably be adverse.
So that without pecuniary loss other than the demand for physical pain and suffering, as to which there was no medical testimony whatsoever, we submit that an award of $3,000 was excessive, grossly. It was not shown that any of her clothing was in any way burned or destroyed. No award could have been made for punitive damages.
J.G. Holmes, for appellee.
The defendant argues that if the garage had not been located over the pipe line, the gas, notwithstanding the break, would have escaped into the open air, and therefore the particular injury to the plaintiff would not have occurred. Both Mr. Criss, the defendant's local manager, and Mr. Turner, the defendant's service man, testified positively that the only permission they obtained from Mr. Thomas was to lay the pipe line underground across the lot, and it was not their purpose nor the purpose of the defendant to obtain any right to the surface use of the lot or to deprive the owner thereof of the normal use of the surface or the right to erect buildings or structures thereon. Of course, in these days when automobiles are generally and universally owned and used the erection of a garage on the premises of the home is a common occurrence and a normal use of the home premises and reasonably to be contemplated and anticipated. However, the jury has found by its verdict that the location and weight of the garage was not the cause of the break, but that the use of the Dresser coupling at the place and in the situation where used was improper and unsafe and that the defendant was negligent in so installing it, and that the plaintiff's injury resulted therefrom. Therefore, the verdict of the jury has foreclosed the question as to whether or not the plaintiff's injury was the natural and proximate consequence of the defendant's act. Of course, it was not necessary that the defendant foresee the particular injury to the plaintiff. It was only necessary that it might have foreseen or anticipated that some injury might result from its negligent act. The escape of gas on the home premises is a highly dangerous and hazardous thing. Occupants of the home are not to be deprived of their free access to the yard and premises merely because a gas company has been given permission to lay underground a service line across the residence lot. It is not unreasonable to be expected that notwithstanding the location of the garage over the pipe line occupants of the home and premises and their relatives and friends might have tossed a lighted match or a burning cigarette in or near the opening in the earth through which the gas was escaping, causing an explosion and resulting disastrously to any one or more persons in close proximity thereto. The confinement of the gas in the opening through which it was escaping was such as to result in an explosion if a spark from any source or by any means, whether from a car parked in the yard and started in the vicinity thereof or otherwise. Gas is a subtle thing, and highly dangerous, and those who handle it or deal with it are charged with the highest degree of care commensurate with the dangers involved, and it is to be reasonably anticipated that danger attends the escape of gas wherever it occurs, and that some injury is likely to result therefrom. It is for that reason that the law requires that those who handle it are held to the highest degree of care which skill and foresight applicable to that business can obtain. It is well settled under the decisions of this court that in committing the negligent act of installing a Dresser coupling at the particular place and in the situation and under the circumstances where installed in this case, it was not necessary in order to render the defendant liable that it foresee the particular injury to the plaintiff, but it was only necessary that it might reasonably have foreseen or anticipated that some injury might result.
"When an act or omission is negligent, it is not necessary, in order to render it the proximate cause, that the actor could or might have foreseen the particular consequences or precise form of injury, if by the exercise of reasonable care it might have foreseen or anticipated that some injury might result." Tri-State Transit Company v. Martin, 181 Miss. 388, 179 So. 349.
Further, however, the issue as to whether or not the plaintiff's injury was the natural and probable consequence of the defendant's act was an issue of fact, and a casual examination of the instructions given to the defendant clearly shows that this issue was repeatedly submitted to the jury in most favorable language to the defendant, and the jury has on ample evidence decided this issue in favor of the plaintiff. It is therefore respectfully submitted that there is no merit in this contention of the defendant.
The explosion in this case was so violent that Miss Margaret McRaven, a witness for the plaintiff, felt the jar of it in her home a distance of a block or more away. The garage was immediately enveloped in flames, and the plaintiff was surrounded by flames. Before she could extricate herself from this perilous and terrifying situation she was seriously and painfully burned and rendered in a state of nervous shock. After she got out of the garage she was taken to the home of her parents, and a doctor was called, and also Miss McRaven, a trained nurse, who lives a short distance away, was likewise called. Miss McRaven, knowing that the doctor had been called, undertook to do nothing more than to apply grease to the burned areas and awaited the directions of the doctor for further treatment. Miss McRaven says, however, that she found her badly burned and in a state of nervous shock. After the doctor arrived he directed that she be taken to the hospital, where he then administered further treatment and applied bandages to all of the burned areas. Her face, neck, shoulders, and her hands, and her arms to the elbows, were badly burned. Her eyebrows were burned off, and her eyelashes were burned off, and her hair was singed, and her eyes were burned. All of these injuries caused her to suffer, according to the undisputed evidence, excruciating pain. At the hospital her face, neck and arms were completely bandaged. She was rendered in a state of nervous shock and her nervous system was so disturbed as that she was still suffering from nervous disorders at the time of the trial of this case at the April, 1948, term, more than a year after the explosion. The explosion occurred on Sunday morning, January 26th, 1947, and the plaintiff remained in the hospital under treatment until the following Tuesday, when she was returned to her home, and there remained under the treatment of the doctor for more than a month, suffering throughout this period of time extreme pain. Her burns were so severe and she was so incapacitated therefrom that she was not able to return to her work until in the month of April. Prior to the explosion she was in good health and possessed calm nerves and good eyesight. Prior to her injuries she had never been required to use glasses. The injuries she sustained to her eyes, however, was of such seriousness that she was thereafter required to have glasses, and was still required to use them at the time of the trial more than a year after the explosion. Her nervous system was still injuriously affected at the time of the trial more than a year after the infliction of her injuries.
It is respectfully submitted, therefore, that burns extending over the area of the face, neck, shoulders, hands, arms to the elbows, and destroying the eylashes, eyebrows, and singeing the hair and injuring the eyes, making the use of eye glasses necessary, and incapacitating the victim for more than two months, and affecting the nervous system to such an extent that the injurious effects thereto were still felt more than a year after the explosion, all with the accompanying excruciating pain and suffering which is characteristic of burn injuries, together with the monetary expenditures caused thereby, all amount, when undertaken to be evaluated by the jury, to substantial damages, and the amount awarded in this case, we respectfully submit, is inadequate compensation for the damages sustained.
Appellee brought an action for personal injuries suffered when gas escaping from a pipe-line, laid by appellant, ignited from a spark from her automobile while being started in her garage. The declaration counted, upon two elements of negligence, an improper installation of the pipe and the use of an improper union or pipe connection. From a verdict and judgment in the sum of $3,000, the defendant appeals.
The gas line was laid in 1944, and consisted of several joints approximately twenty feet in length. It was laid between fifteen and eighteen inches underground. The joints were united by what is described as a "Dresser Coupling." One of these couplings pulled apart at a place beneath the garage. This dislocation was both horizontal and vertical, one end of the pipe being some three inches below the opposite end, and the separation being about three inches. The coupling remained attached to the southernmost joint. The garage was erected in the latter part of 1947, and the explosion occurred thirty-eight days thereafter. The garage was erected upon ground which sloped southward to the rear of the garage, and rested upon a solid foundation wall about the sides and rear. These walls were laid upon the surface of the ground, and were six inches thick, and their height varied from six feet at the rear to about two and a half feet at the front. The floor of the garage was constructed by filling inside this foundation wall with dirt to the level of a driveway leading to the street. The floor was finished with three concrete runners so as to accommodate two cars. The weight of the entire garage was estimated at eighty thousand pounds. The broken joint was beneath the dirt fill toward the front part of the fill.
Appellant's concern rises above the usual interest in displacing an adverse verdict, and seems to involve an anxiety that an affirmance of the judgment would impliedly, if not directly, proscribe the use of the "Dresser Coupling," which, he asserts, with testimonial support, has been widely used by this and other gas companies in uniting pipe sections. While we would not be privileged to share this concern as a troubling incident to a conclusion if compelled thereto by a legal necessity, we take occasion to state that neither the verdict nor our conclusions need carry such implication.
This coupling, described without technical nicety, consists of a metal sleeve or coupling body about six inches long, into which the opposing ends of pipe joints are slipped, and which is tightened by octagonal threaded nuts at each end. This action engages and progressively tightens about the pipe a rubber compound gasket, thereby sealing the line against leakage, and by pressure or compression makes a tight, though flexible, joint. Tensile strength is sought to be assured by friction produced through the tightening of the end nuts, which causes a gasket retainer to engage and hold the gaskets fast about the pipe ends. Its merit over other union devices is argued upon the ground of its flexibility which allows the pipe to slip under great pressure rather than allow a break of the pipe at the joint or at a terminal connection. To emphasize this quality of flexibility, a concession is made that it is possible for such joints to pull apart, although when properly installed they afford a tensile strength of about one thousand pounds. Its technical and popular designation as a "slip joint" conveys more than a mere implication that, if improperly applied, it would constitute a hazard not only of leakage but of actual separation.
There was conflicting testimony regarding the comparative strength and safety of other methods of coupling, notably by welding or the use of "ground joints" or screw couplings. Yet, the defendant procured instructions which effectively excluded comparisons with other such devices provided the Dresser Coupling was found to be reasonably safe. Taking into account their widespread use and general approval was therein authorized.
(Hn 1) It is clear that the issue of liability involves the questions whether (1) the coupling used was under the circumstances reasonably safe; (2) whether it was properly installed; (3) whether the erection of the garage was the sole proximate cause of the break; and (4) whether the erection of the garage was a reasonably foreseeable contingency against which the defendant was required to guard, or for which it was bound to make allowance. Of course, negligence in erecting the garage in the manner, and at the location, even though a concurring cause, would not of itself absolve the defendant unless it was the sole intervening cause. These alternatives were presented to the jury through proper instructions. Arguments to support the respective contentions include the observation that a leak in the pipe would not have been a serious hazard had the garage not been erected over the joint, thereby allowing the escaping gas to be accumulated and confined; that a water line of similar dimensions was laid parallel to the gas line and beneath the garage. The water line was joined with a screw coupling, and, though exposed to the same conditions, did not break or pull apart. The "Dresser Coupling" was constructed so as to remain tight against leakage, yet under emergency conditions it allowed a play or expansion by slippage equal to twice the extent to which each pipe end was inserted beyond the gasket. Just what amount of sway or deflection in the line would extend its length to the point of separation is not computed, yet the diagrams exhibited did not show any substantial sag of the line, but only, as stated above, a vertical displacement of the southern or rear section of pipe below the north or front section.
It is noteworthy that the other joints were sufficiently secure to withstand the pressure or strain, however imposed, and that the other end of the coupling here involved remained intact. The connecting pipe joints were not similarly depressed but only the south or rear joint, which retained the coupling, was found to be three inches below the opposing joint. This supports a view that the dislocation was not due to vertical pressure from weight above the joint, but by a horizontal pull which tested its tensile strength. The more plausible theory of the defendant is that such lateral strain resulted from the weight of the rear wall and the adjacent fill, which, exerted at a point beneath the real wall, caused the southern joint to sway in an arc sufficient to cause a shortening of its length beyond the safe margin of about three inches. As stated, the diagrams exhibited do not, however, show any such deflection. The break occurred about seven feet from the front end of the garage, which, as stated, was about two and a half feet above ground, and about twelve feet from the rear wall which was about six feet high. The floor of the garage was between three and four feet above the joint.
Further elaboration of statistical data would not be helpful. The issues sharply presented are: (1) Was the erection of the garage at the place, and in the manner indicated, a reasonably foreseeable probability? If so, (2) was the pipe-line laid with commensurate care in view of such probability? (3) If such erection was not reasonably foreseeable, was it the sole and intervening cause of the break and resulting injury?
Had there been no garage, the pulling apart of the joints would have presented a simple case, although one of the defendant's instructions denied the application of the res ipsa loquiter doctrine.
Now, certain factors are without dispute. The pipe-line did pull apart, gas did escape, and as a result thereof, plaintiff was injured. Was the erection of the garage the sole, proximate cause of the injury? This would have to be true to justify the exoneration of defendant. Yet, there must be more. Its erection must have been a contingency which the defendant was not chargeable with anticipating as a reasonable probability.
This suit involves no contributory negligence by the plaintiff. If both the defendant and he who erected the garage were guilty of negligence proximately contributing to the injury, she may recover from either regardless of the extent of their respective contributions. If precedent negligence of defendant was activated or augmented by the act of another to the point of actual injury, the defendant would be yet answerable for its fault.
(Hn 2) The issues of reasonable foreseeability and of sole, intervening cause were fully submitted by instructions to the jury. Also presented were the issues whether the joint used was proper under the particular circumstances, and whether, even if proper, it was properly or negligently installed. The jury were left free to resolve these issues, and to fix the blame on whomsoever it chose, or to attribute it to mere accident. We are of the opinion that these issues were factual and properly submitted.
(Hn 3) The suit was not grounded upon an alleged violation of a municipal ordinance which provided, in such cases, that "no unions except ground joint or metallic seat unions are allowed." Yet, it is assigned for error that the plaintiff was allowed to introduce in evidence the ordinance of the municipality. We do not digress to follow an assault upon the constitutionality of the ordinance, for the reasons hereafter stated. Attack is directed particularly to the testimony which more than implied that the defendant, by installing "Dresser Couplings" throughout the city, had incurred criminal responsibility. The possibility of adverse prejudice thereby has caused us no little concern.
Regardless of the evidential value and propriety of thus proving negligence (as to which see 38 Am.Jur., Negligence, Sec. 168), we do not here justify it on such ground. The fact of such ordinance was first established by the defendant, although its provisions were not exhibited. Moreover, the defendant procured instructions to the effect that it was not the defendant's duty to furnish any particular kind of coupling, and left for decision only the issue whether there was used a coupling "such as is recognized by the trade and by custom and usage to be reasonably safe and proper under the circumstances, and if you believe that the Dresser Coupling was reasonably safe when properly installed, and recognized as standard and proper, then you should find for the defendant regardless of every other fact and circumstance in the case."
In nullifying the implication of the ordinance, the defendant procured instructions to the effect that if the coupling used was of a type approved and used by the industry, and recognized as being reasonably safe and was properly installed, they would deny recovery. Such instructions authorized a finding that the defendant had used due care in the use of Dresser Couplings; or that such coupling was improperly and negligently installed; or, that the sole cause of the injury was the superseding negligence of the builder of the garage.
To insure against a condemnation by the jury of the Dresser Coupling, per se, the defendant procured instructions that if such coupling was generally accepted and used (and there was ample testimony thereto) and was itself reasonably safe, there could be no recovery "even though you may believe that a welded joint or rigid screw joint would not have broken, or would have broken at some other point, without injuring the plaintiff."
(Hn 4) It is evident, therefore, that the controlling issue was that of a proper installation in view of existing and reasonably foreseeable conditions. The assertion that the pipe-line had been laid for two and a half years, and the injury occurred thirty-eight days after erection of the garage, supplied material for argument which has been plausibly utilized. Yet, the jury had before it testimony that gas escaping into the open air is usally harmless. But, that its concentration within the foundation walls would make it a patent hazard. In this connection, defendant, in concluding that the erection of the building was the sole cause of the injury, assumes as one premise that there may have been a prior disconnection, which, however, negligently caused, would not have culminated in any injury if the garage had not been built. In other words, there would arise a situation explicable in a coined phrase "injuria absque damno." Of course, defendant concedes no prior break as a fact, but stands upon the theory of damnum absque injuria. The jury were free, therefore, to consider whether the garage caused the break, or merely magnified its effects. It may bear repetition that the refendant may escape liability only upon an intial finding that the garage, as and where constructed, was the sole proximate cause of the injury. But, for the garage, resourcefulness of the defendant would be put to severe test to defend against such breakage and a resultant injury.
In some, but not all, of plaintiff's instructions, the jury were told that the defendant was charged with "the highest degree of care commensurate with the dangers of gas leaking or escaping from any coupling . . ." The writer of this opinion, who does not in this respect speak for the Court, is of the opinion that there are no "degrees" of care, but that requisite care is comprehensively defined as that degree of care commensurate with appreciable danger, appraised in terms of ordinary prudence, and interpreted in the light of the attendant circumstances. Roberts v. Mississippi Power Light Co., 193 Miss. 627, 10 So.2d 542. Yet, the employment of the phrase "highest degree of care" has been frequently used. State to Use of Johnson v. Cunningham, 107 Miss. 140, 65 So. 115, 51 L.R.A., N.S., 1179. In its superlative aspect, it implies a responsibility which is violated by only slight negligence. Is its force sufficiently restrained by the qualification that such care be commensurate with the danger? Certainly if it is to be measured by the danger and limited thereby, the uncertainity which could otherwise blur the outlines of the vague superlative are at once brought into focus by the clarity of the limitation. Other instructions for the plaintiff, and all those for the defendant, fixed the measure of care by the standard of reasonable prudence.
The issue whether the coupling was properly installed was submitted by the circumstances that it pulled apart and direct testimony in this regard was sought to be elicited from defendant's witness Turner who made the installation. He stated: "I put it together as near correct as my knowledge." In response to repeated inquiries whether if it had been properly coupled, it would, under the circumstances, have pulled apart, the witness persisted in the ambiguous answer, "Well, it did pull apart." The jury was therefore faced with an interpretation which, on the one hand, meant that it would pull apart despite due care, which would search the adequacy of the coupling as a proper device; and on the other hand, could infer that the very fact of disconnection bespoke a faulty installation.
(Hn 5) Objection is made to the alleged error of the trial court in admitting the testimony of the plaintiff's witnesses, William and Jenne. Their qualifications as expert witnesses is challenged. Both had special training in installation of gas pipes and fittings, and if they had not been accepted by the trial judge as expert witnesses, at least they gave expert testimony as to facts within their special knowledge. See McKelvey on Evidence, 5th Ed., page 339. Such considerations affect only the weight of their testimony.
(Hn 6) Testimony as to the measure of damages is disturbingly indefinite. No physician was called to appraise the extent or duration of the injuries, nor as to their causal connection with the explosion. The case hovers close to the shadow of Hawkins v. Stringer, Miss., 38 So.2d 454, yet the extent of plaintiff's suffering and the causal connection between her disabilities and the negligent act place her beyond, but perilously close to, the pale of the cited case. The amount of the award presents another challenge. We have concluded, however, that there is not in it evidence of passion or prejudice, and that however it may assault our judgment, it does not shock the conscience.
Affirmed.
ON SUGGESTION OF ERROR.
Appellant has filed an elaborate suggestion of error in this case, asserting as a necessity therefor the uncertain status under our former decision herein of the standard Dresser Coupling in standard gas service installation, and basing its sole contention at the outset upon the following point: "Appellant, a public utility, had a contitutional right to install in this line a dresser coupling, hereinafter called `Dresser'; so to do cannot constitutionally be declared negligence; this suggestion is limited to that constitutional point and the obligation of this court as an inferior court quo ad and must herein conform to that declared requisite by federal supreme court."
The same point was raised upon the original presentation of this appeal, and in our original opinion we stated "Appellant's concern rises above the usual interest in displacing an adverse verdict, and seems to involve an anxiety that an affirmance of the judgment would impliedly, if not directly, proscribe the use of the `Dresser Coupling' which, he asserts, with testimonial support, has been widely used by this and other gas companies in uniting pipe sections. While we would not be privileged to share this concern as a troubling incident to a conclusion if compelled thereto by a legal necessity, we take occasion to state that neither the verdict nor our conclusions need carry such implication." Mississippi Power Light Co. v. Thomas, Miss., 39 So.2d 759, 760. Our decision then proceeds to a conclusion upon the basis that the evidence in this case, and the reasonable inferences to be drawn therefrom, show that the Dresser coupling was not properly installed and connected. The very coupling from which the pipe in question became disconnected was produced in evidence and sent up to this court as an exhibit in the case. It measures slightly over six inches in length. Appellant attached to its original brief an appendix of twenty-four pages consisting of photographs, diagrams and cross-sections of the standard Dresser coupling, including a diagram showing that under proper installation the pipes should be inserted into the coupling so as to meet end to end in the center thereof. With the coupling herein evidence each section of the pipe in the service line should have been inserted for a distance of three inches into the coupling so as to connect the service pipes end to end. The proof in this case jusifies the conclusion that one of the service pipes was not so inserted into the coupling. The "Dresser Coupling" in itself is recognized as a standard appliance which, when properly used, is perhaps as effective and safe as any other type of coupling, and its use by appellant is not prohibited or proscribed by our decision.
Notwithstanding the preliminary statement in appellant's suggestion of error limiting the same to the question just discussed, the appellant contends that the ordinance of Yazoo City is unconstitutional and brands appellant as a callous criminal. As was pointed out in our original decision, the fact of the existence of this ordinance was first brought out by appellant's counsel during the course of the trial, and the jury was clearly instructed that it was not appellant's duty to furnish any particular type of coupling and if the Dresser coupling was a standard, recognized and proper type of coupling, the appellant has a right to use it. The constitutionality of the said ordinance is not involved in this decision.
The suggestion of error is accordingly overruled.
Suggestion of error overruled.
As stated in the controlling opinion herein, this suit is predicated upon two charges or elements of alleged negligence — an improper installation of the service gas pipe-line, and the use of an improper union or coupling for the safe connection of the pipe-line. I do not think there was sufficient evidence, if any evidence at all, to show that the gas line was improperly installed. The specific charge of the declaration in that regard is that the Power Light Company had "negligently failed to make secure one of the joints thereof and to provide a proper appliance or coupling for said joint, so as to render the same reasonably secure against the pressure of gas," etc.
A Mr. Turner testified, in substance, that on account of the shortage of skillful workers in 1944, when this underground service gas line was installed across the vacant lot on which the garage was later erected, thirty-eight days before the explosion, more than two and a half years after the pipe installation, he, personally, connected the ends of the lengths of pipe by use of the "Dresser Coupling" at six locations along the pipe-line, and when asked whether or not such coupling would pull loose if properly installed, he replied "that one did." Moreover, I am of the opinion that it is conclusively shown that he did in fact securely install the coupling so as to make it reasonably safe to withstand pressure of gas, since there was no proof whatsoever in the record that he did not do so, or that it came loose during the period of more than two and a half years prior to the erection of the garage over the coupling joint which became disconnected and caused the explosion.
Mention should be made herein of the fact that on the morning of the explosion, the plaintiff had theretofore driven the automobile out of the garage to go to Mass, returned it to the garage, and later when starting the automobile for the purpose of taking her nephew to the ten o'clock Mass, the explosion occurred. If the pipe under the garage had become disconnected during or prior to the night before the explosion, it would appear that the gas which had accumulated therein during the night would have become ignited on her first trip to the garage for the purpose of using the car to go to the early Mass. that morning. And mention should be further made that this was during the winter rains and that the concrete foundation of the garage at the back end thereof, where it was approximately five feet high and where it had been placed on top of the ground as a footing, and approximately eighteen inches above the pipe-line, was found to be sunk to within five inches of the pipe-line after the explosion. I do not think that an explosion from leaking gas under the ground would have had a tendency to lower the foundation, since the pressure of the gas would have been upward.
It is stated in the controlling opinion that "it is noteworthy that the other joints were sufficiently secure to withstand the pressure or strain, however imposed, and that the other end of the coupling here involved remainded intact." I think it is more noteworthy that the weight of this 80,000-pound garage was not over any of the other joints. In fact, service gas pipe-lines are not placed beneath buildings, but are extended into buildings so as to connect with the gas appliances from a meter located outside of and immediately adjacent to such buildings.
I also think that it is extending the doctrine of negligence entirely too far to hold that because the defendant should have reasonably foreseen that a garage might later be erected over the pipe-line would mean that the power and light company should have also reasonably anticipated that the forces of nature causing soil to slide would combine with the weight of the garage so as to disconnect a coupling underneath the same during heavy rains where the connection had remained intact for more than two and a half years.
It was shown, without dispute, that thousands of other Dresser Couplings were used throughout the City of Yazoo and elsewhere, including those throughout the area of sliding soil and elsewhere in our Capital City and in other parts of the country, and without explosions resulting from the use thereof. Such couplings were shown to be in general use as a reasonably safe appliance or connection by the gas distributing industry. In fact, in Crocker's "Piping Handbook," published by McGraw-Hill Book Co., Inc., New York and London, 1945, 4th Ed., it is stated that such a coupling "is well known under the trade names of Dresser Coupling and Dayton Coupling, and is used extensively for air, gas, oil, water, and other services above or underground. . . ." It seems to be generally recognized by the experts in this industry that flexibility in connections is desirable to prevent the line breaking under extraordinary pressure — a quality not found in an underground welded joint; that where a welded joint is used an unsual pressure of weight or from sliding soil may not break it at the point of connection, but will break elsewhere with the likelihood of causing damage. Most assuredly, one making a pipe-line installation would not be required to anticipate more damage from such a result at one place rather than at another.
In the case of Chester Company v. Wisconsin Power Light Co., 211 Wis. 158, 247 N.W. 861, the company was held liable because it failed to use a flexible joint or connection. If the present suit was for an injury caused by the breaking of a pipe-line where a welded joint was used, it is to be presumed that we would follow this Wisconsin case and hold that liability should be predicated upon the failure to do what the defendant in the case at bar did do, in an absence of a decision of our own Court, or the weight of authority from other jurisdictions to the contrary. Thus it was that when this pipe-line was installed the defendant was confronted with a well-reasoned opinion from a Supreme Court holding that the flexible connection should have been used; and since there is no decision cited to the contrary, I do not think we should hold the defendant liable for using such appliances as are in general use in the gas distribution industry.
No contention is made anywhere in the brief on behalf of the appellee that the verdict in this case should be upheld on the ground that this coupling was not made secure by the workman when the same was originally installed, although this charge is contained in the declaration and the workman was interrogated in regard thereto. In other words, the contention urged by the appellee here for the affirmance of the judgement appealed from is based upon the negligent use of the Dresser Coupling as not being a reasonably safe appliance. However, the controlling opinion states that "neither the verdict nor our conclusions need carry such implication," thereby meaning to say that the decision of the controlling opinion in this case is not to be construed as condemning the use of the Dresser Coupling.
With the utmost deference, it seems to me that unless the use of this Dresser Coupling is to be condemned, and which I don't think would be warranted under the proof, the affirmance of the case must necessarily rest upon the alleged failure of the workman "to make secure one of the joints" of the pipe, as alleged in the declaration, and this notwithstanding that the workman made the connection so secure that it held for more than two and a half years after its installation, without showing leakage during that time. We are not permitted to conjecture that it is possible that there may have been a leakage prior to the occasion complained of. The burden was upon the plaintiff to prove such fact, either directly or circumstantially, if the same is to be relied on to support the contention that the weight of the garage and the forces of nature acting upon the soil did not combine as the sole and efficient, intervening and independent cause to produce the reasonably unforeseeable dislocation of the coupling beneath such garage. The jury should not be permitted to say that a connection joint in a pipe-line which has withstood pressure by gas and the forces of nature for more than two and a half years was not securely fastened in the beginning.
Reliance is placed on the fact that the water pipe-line underneath the garage did not become dislocated. However, this line was a distance of about seven feet from the gas line underneath the garage, and this distance graduated to twenty feet out to the end of the lot at the street, and it was not shown that the concrete wall of the garage had sunk where it crossed the water pipe-line. It was shown that the connections of the water pipe-line were screw joints, the use of which have been discontinued by the United Gas Company, one of the fifty-three subsidiaries of the parent company, and that the use of Dresser Couplings in underground gas pipe-lines has continued to be recognized as standard equipment in general use. And while the failure of the water pipe-line to become dislocated may have afforded the basis of a persuasive argument to the jury, it was an immaterial circumstance for the reasons above stated on the issue of whether or not a Dresser Coupling in the gas pipe-line was a reasonably safe appliance.
It is true, as stated in the controlling opinion, that "the pipe-line did pull apart, gas did escape, and as a result thereof, plaintiff was injured"; but the test of liability is whether or not in installing the pipe-line the power and light company exercised the proper care to use a reasonably safe coupling and had properly installed the same in such manner as to protect against a reasonably foreseeable accident which occurred more than two and a half years after the installation thereof. I do not think the affirmative of this proposition is a debatable issue under the undisputed evidence disclosed by this record, including the facts hereinbefore set forth, and that therefore the directed verdict in favor of the defendant should have been granted as requested.
But if mistaken in the view above stated, I am unable to see how we would be justified in not reversing this case for a new trial on the ground that the verdict is contrary to the great and overwhelming weight of the evidence, and for the further reason that the plaintiff was permitted to greatly prejudice the rights of the defendant before the jury by the introduction of a city ordinance and to contend that the same characterizes as a criminal act the use of a Dresser Coupling in gas pipe installations in Yazoo City. And this was permitted notwithstanding the fact that neither the city council nor its gas line inspectors are shown to have ever objected to the general use of these couplings throughout the city as not being in compliance with such ordinance. Moreover, the plaintiff was permitted in the cross-examination of a witness or witnesses to show that these couplings were being used all over the city, and to demand the question to be answered as to whether or not the witness did not know that the use of such a coupling was a violation of the law. Objection was promptly interposed, but overruled. Witness was then asked, "If it is a violation of law, Mississippi Power Light Company is violating the law all over Yazoo City." This question was objected to without avail. Another witness for the defendant, the one who installed the pipe-line, was also asked, on cross-examination, if he didn't know when he installed this coupling and some four or five others that it was a violation of law in Yazoo City to use this type of coupling. Objection to this question was overruled, and the witness was then asked, "If it was a violation of law, in this short line of 86 feet, you violated the law five times in the construction of this line." As a matter of fact, the city had no authority in the proper exercise of its police powers to adopt an ordinance that would condemn the use of couplings recognized to be standard equipment and in general use by the defendant and other gas distributing companies, which were shown to be a reasonably safe appliance, since to prohibit such use would be an unreasonable exercise of power.
Be that as it may, the suit was not predicated upon the alleged violence of a city ordinance, and the same should not have been introduced in evidence, nor should the plaintiff have been permitted to characterize the acts of the defendant and its employees as criminal when the inevitable effect of doing so would prejudice a jury against the defendant as having no regard for the ordinance adopted by the constituted authorities of the municipality.
The controlling opinion states, and I think with deference it erroneously states, that "the fact of such ordinance was first established by the defendant, although its provisions were not exhibited." The questions which had been asked by the defendant's counsel were with reference to the regulations of the code as to laying pipes "under the houses and up through the floors and walls of the houses and to the space heaters," etc., when he was examining a witness, who testified that he did not put in underground pipes, but only house pipes. He was then asked: "Q. You have a certain specified code as to what should be done? A. That is right. Q. And those pipes are above the ground? A. That is right." In other words, these questions by the defendant's counsel did not justify the introduction of the ordinance complained of or the highly prejudicial cross-examination of the defendant's witnesses in regard to their alleged repeated violations of the law. And it is inconceivable to me how any occurrence or circumstance that may be developed during a trial where a young lady has been burned or injured, through no fault of her own, could have been more prejudicial to the rights of the defendant before the jury, even though the court did instruct the jury that the defendant was not required to use any particular type of coupling but was only required to use a reasonably safe one.
In fact, the court correctly instructed the jury as to the law in the instructions granted to the defendant, but these instructions were not followed, and evidently due to the fact that the jury was led into believing from the city ordinance and the characterization of the acts of the defendant as criminal violations thereof, that the plaintiff was nevertheless entitled to a verdict, without regard to the fact that the defendant had used a reasonably safe coupling and had properly installed the same.
However, as hereinbefore stated, I am of the opinion that the defendant was entitled to a peremptory instruction for the reason that there was no substantial evidence to show that it had not exercised the proper care to use and securely install a reasonably safe coupling, then and now in general use, for the pipe connection from which the gas escaped, and that even though the owner of the lot had the right to install thereon the garage wherever he should choose to locate it, the fact remains that the injuries to the complainant herein complained of were due to an accident which was not reasonably forseeable, the suit here being predicated on negligence and not upon any alleged duty to insure against a remote possibility.
Smith and Roberds, JJ., concur in this dissent.