Opinion
No. 39576.
May 2, 1955.
1. Gas — explosion — negligence — personal injuries — distributor held not liable — efficient intervening last proximate cause — unlawful act of third person.
Where plumber installed gas piping in new house, city issued a certificate certifying that piping complied with city ordinance, and natural gas distributor connected service line with piping, but found something wrong with the piping and turned off gas at meter, without warning contractor or prospective purchaser, and thereafter unknown person turned on gas at meter, and prospective purchaser was injured in explosion, explosion was not proximately caused by any negligence of distributor, and distributor was not liable for prospective purchaser's injuries.
2. Gas — explosion — efficient intervening last proximate cause — unlawful act of third person.
Under facts of case, the efficient intervening last proximate cause of the explosion and resulting injury was the unlawful act of third person in turning the meter cock allowing the gas to flow into the house.
3. Gas — distributor — not insurer of its product — after consumer's piping connected — to distributor's line.
Natural gas distributor is not an insurer of its product once gas piping on premises of consumer is connected to distributor's main line.
4. Gas — distributor's responsibility — for damages caused by its product.
Natural gas distributor is not responsible for all damage caused by its product, regardless of fact that damage is proximately caused by intervening forces and agencies over which distributor has no control.
5. Gas — escaping gas — distributor's duty — on being apprized of.
When natural gas distributor has notice that gas is escaping on premises of consumer, distributor must either shut off gas or remedy defect, as quickly as practicably possible.
6. Gas — distributor — degree of care — chargeable with.
Natural gas distributors are charged with the degree of care and skill commensurate with the danger of use of natural gas.
Headnotes as revised by Arrington, J.
APPEAL from the Circuit Court of Coahoma County; E.H. GREEN, Judge.
Wright, Overstreet Kuykendall, Jackson; Brewer Brewer, Howard G. Woodward, Clarksdale, for appellant.
I. Where a Gas company has not rendered service to a new customer, the company is not liable for injuries resulting when a person unlawfully turns on the gas. Mississippi Power Light Co. v. McCormick, 175 Miss. 337, 166 So. 534; Mississippi Public Service Co. v. Cunningham, 189 Miss. 179, 195 So. 472; Sec. 8, Clarksdale Municipal Gas Code.
II. The record shows the Gas company performed every duty enjoined upon it to be performed, and did not fail to perform any duty owed to the plaintiff; and the verdict and judgment is against the overwhelming weight of the evidence. Mississippi Public Service Co. v. Cunningham, supra; Secs. 10(b), 12(f), Clarksdale Municipal Gas Code.
III. Under the allegations of the declaration and the evidence proved at the trial, defendant was clearly entitled to a directed verdict. Armiger v. Baltimore Transit Co., 173 Md. 416, 196 A. 111; Atchison, T. S.F.R.R. Co. v. Toops, 281 U.S. 351, 74 L.Ed. 896, 50 S.Ct. 281; B. O.R.R. Co. v. Goodman, 275 U.S. 66, 72 L.Ed. 167, 82 S.Ct. 24, 56 A.L.R. 645; Behling v. S.W. Pac. Pipe Lines, 160 Pa. 359, 28 A. 777; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470; Border Gas Co. v. Windrow, 3 F.2d 974; Canfield v. West Virginia Cent. Gas Co., 93 S.E. 815; Chattanooga Light Power Co. v. Hodges, 109 Tenn. 331, 70 S.W. 616; Christo v. Macon Gas Co., 19 Ga. App. 541, 91 S.E. 1007; Columbus G.R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Conway v. Philadelphia Gas Works, 336 Pa. 11, 7 A. 326; Coy v. Indianapolis Gas Co., 146 Ind. 655, 46 N.E. 17; Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73; Graham v. North Carolina Butane Co., 58 S.E.2d 757; Gulf, M. N.R.R. Co. v. Sparkman, 180 Miss. 456, 177 So. 760; Illinois Cent. R.R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Leonard v. Enterprise Realty Co., 187 Ky. 578, 219 S.W. 1066, 10 A.L.R. 238; Lone Star Gas Co. v. Eckell, 110 S.W.2d 936; Mississippi Power Light Co. v. McCormick, supra; Mississippi Public Service Co. v. Cunningham, supra; Morril v. Morril, 104 N.J.L. 557, 142 A. 337, 60 A.L.R. 102; Newland v. City of Winfield, 289 P. 402; Oklahoma Natural Gas Co. v. Appel, 266 P.2d 442; Pennsylvania R.R. Co. v. Cumberland, 288 U.S. 333, 77 L.Ed. 819, 53 S.Ct. 391; Rich v. Asheville Elec. Co., 152 N.C. 689, 68 S.E. 232; Rowlands v. Morphis, 158 Miss. 662, 130 So. 906; Schmeer v. Gas Light Co., 147 N.Y. 529, 42 N.E. 202, 30 L.R.A. 653, 25 A.L.R. 285; Shaw v. Wisconsin Power Light Co., 256 Wis. 176, 40 N.W.2d 498; Stephany v. Equitable Gas Co., 347 Pa. 110, 31 A.2d 523; Triple State Natural Gas Oil Co. v. Wellman (Ky.), 70 S.W. 49; Triplett v. Alabama Power Co. (Ala.), 104 So. 248; York v. North Central Gas Co. (Wyo.), 237 P.2d 845; Sec. 8, Clarksdale Municipal Gas Code; 24 Am. Jur., Secs. 21, 29 pp. 681, 685; 38 Am. Jur. pp. 1044, et seq., 1060; Annos. 25 A.L.R. pp. 266, 289; 90 A.L.R. 1085; 26 A.L.R. 2d pp. 150, 175
IV. Irrelevant, immaterial and prejudicial evidence was admitted over the objection of the appellant, confusing and conflicting instructions were given, and defendant's requested instruction defining the duty of the Gas company was refused; and the excessive amount of the verdict evinces bias and prejudice on the part of the jury. Dunlap v. Hearn, 37 Miss. 471; Gill v. Eakin, 203 Miss. 204, 33 So.2d 821; J.M. Griffin Sons v. Newton Butane Gas Oil Co., 210 Miss. 797, 50 So.2d 370; Macon County v. Shores, 97 U.S. 72, 24 L.Ed. 42; Mississippi Power Co. v. May, 173 Miss. 580, 161 So. pp. 149, 755; Mississippi Public Service Co. v. Bassett, 184 Miss. 6, 184 So. 419; Mississippi Public Service Co. v. Cunningham, supra; Noxubee County v. Long, 141 Miss. 72, 106 So. 83; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; 38 Am. Jur. pp. 1075, 1077, 1079; 53 Am. Jur. pp. 88, 406; 4 C.J.S. 465; 32 C.J.S. 612; 38 C.J.S. 739.
Roberson, Luckett Roberson, Clarksdale, for appellee.
I. The case against appellant is not dependent upon a finding that it turned on the gas after discovering the fact that there was an opening in the pipes through which gas would escape. American Heating Plumbing Co. v. Grimes, 192 Miss. 125, 4 So.2d 890; Brown v. Y. M.V.R.R. Co., 88 Miss. 687, 41 So. 383; C. R. Stores, Inc. v. Scarborough, 189 Miss. 872, 196 So. 650; Coker v. Five-Two Taxi Service, Inc., 211 Miss. 820, 52 So.2d 356; Curtiss Candy Co. v. Johnson, 163 Miss. 426, 141 So. 762; Gee v. Rimmer, 188 Miss. 460, 195 So. 342; Hartford Fire Ins. Co. v. Williams, 165 Miss. 233, 145 So. 94; Mississippi Power Light Co. v. McCormick, 175 Miss. 337, 166 So. 534; Planters Wholesale Groc. Co. v. Kincade, 210 Miss. 712, 50 So.2d 578; Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86; Soderstrom v. Robinson, 193 Miss. 261, 8 So.2d 501; Williams v. Larkin, 166 Miss. 837, 147 So. 337.
II. Appellant was not entitled to a directed verdict. American Heating Plumbing Co. v. Grimes, supra; Canfield v. West Virginia Cent. Gas Co., 93 S.E. 815; Christo v. Macon Gas Co., 91 S.E. 1007; Conway v. Philadelphia Gas Works Co. (Pa.), 7 A.2d 326; Graham v. North Carolina Butane Co., 58 S.E.2d 763; Lone Star Gas Co. v. Eckell, 110 S.W.2d 936; Newland v. City of Wingfield, 289 P. 402; Oklahoma Natural Gas Co. v. Appel, 266 P.2d 442; Sears, Roebuck Co. v. Burke, 208 Miss. 306, 44 So.2d 448; Stephany v. Equitable Gas Co. (Pa.), 31 A.2d 523; Triple State Natural Gas Oil Co. v. Wellman (Ky.), 70 S.W. 49; Triplett v. Alabama Power Co., 213 Ala. 190, 104 So. 248; York v. North Central Gas Co. (Wyo.), 237 P.2d 845.
III. Appellant's criticisms of the Court's rulings on evidence and of the instructions are frivolous and wholly without merit. Blackwell v. State (Miss.), 44 So.2d 409; Magnolia Miss Dress Co., Inc. v. Zorn, 204 Miss. 1, 36 So.2d 795; Murry Chevrolet Co. v. Cotten, 169 Miss. 521, 152 So. 657; New Orleans N.E.R.R. Co. v. Bryant, 209 Miss. 193, 46 So.2d 433; Orr v. Columbus G. Ry. Co., 210 Miss. 63, 48 So.2d 630; Price v. State (Miss.), 54 So.2d 667; Shaw v. Wisconsin Power Light Co., 49 N.W.2d 498; 32 C.J.S., Evidence, Secs. 709, 711.
IV. Appellant was negligent in not assuring itself before it turned gas under pressure into the piping that there were no openings from which gas could escape. Mississippi Public Service Co. v. Cunningham, 189 Miss. 179, 195 So. 472.
V. Appellant was negligent in leaving the meter connected after it discovered that the outlets were either leaking or not securely capped. Mississippi Public Service Co. v. Cunningham, supra.
VI. Appellant was grossly negligent in failing to warn appellee and others that there was an opening or openings in the pipes through which gas would escape. American Heating Plumbing Co. v. Grimes, supra; Fairfax Gas Supply Co. v. Hadary, 151 F.2d 939; Mississippi Public Service Co. v. Bassett, 184 Miss. 6, 184 So. 419; 65 C.J.S. 559; A.L.I., Restatement of the Law (Torts), Sec. 388.
VII. Appellee was entitled to rely on appellant's assurances of safety, and appellant is liable for harm suffered by appellee in action taken in reliance thereon. Alabama Utilities Service Co. v. Hammond (Ala.), 144 So. 822; American Heating Plumbing Co. v. Grimes, supra; J.M. Griffin Sons v. Newton Butane Gas Oil Co., 210 Miss. 797, 50 So.2d 370; Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747; Williams v. Larkin, 166 Miss. 837, 147 So. 337; A.L.I., Restatement of the Law (Torts), Sec. 311.
VIII. Appellant is liable for appellee's injuries if its servants committed any act of negligence which caused and contributed to the explosion. Jakup v. Lewis Grocer Co., 190 Miss. 444, 220 So. 597; Teche Lines, Inc. v. Bounds, supra; Williams v. Larkin, supra.
IX. The damages awarded by the jury are not excessive. Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Gatlin v. Allen, 203 Miss. 135, 32 So.2d 304; General Benev. Assn. v. Fowler, 210 Miss. 578, 50 So.2d 137; Gulf Rfg. Co. v. Myrick, 220 Miss. 429, 71 So.2d 217; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Kincade Lofton v. Stephens (Miss.), 50 So.2d 587; Mississippi Cent. R.R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; St. Louis S.F.R.R. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478; S.H. Kress Co. v. Sharp, 159 Miss. 283, 131 So. 412; Thomas v. Mickel, 214 Miss. 176, 58 So.2d 494; Tri-State Transit Co. of La. v. Worley, 197 Miss. 663, 20 So.2d 477; Vascoe v. Ford, 212 Miss. 370, 54 So.2d 541; Yazoo M.V.R.R. Co. v. Grant, 86 Miss. 565, 38 So. 502, 504.
The appellee, William O. Goudelock, brought suit against Harry D. Kantor and Phillip Kantor, doing business as Harry D. Kantor and Son, and the Mississippi Valley Gas Company in the Circuit Court of Coahoma County for injuries received on December 21, 1953, in an explosion at a house being constructed by the Kantors for sale to the plaintiff in the City of Clarksdale, Mississippi. Prior to the trial, a non-suit was taken as to the Kantors upon the payment of $6,000.
The cause proceeded to trial against the appellant gas company and judgment was rendered in favor of the appellee in the sum of $35,000, from which judgment the appellant appeals to this Court.
Harry D. Kantor and Phillip Kantor were in the construction business in Clarksdale, doing business as Harry D. Kantor and Son, hereinafter referred to as Kantor. Kantor and appellee entered into an agreement whereby Kantor was to construct and sell to appellee a house in the Greenacres Subdivision in the City of Clarksdale. At the time of the explosion on December 21, 1953, Kantor was the owner of the house and lot wherein the explosion occurred, and was in sole and exclusive control of the work being done on the premises. On the date of the explosion, the house was nearing completion, with the exception of some interior painting, finishing work and the installation of certain appliances. Due to the cold weather prevailing at the time, the painters could not work in the house and Kantor told the appellee to have the gas turned on. On Monday, December 14, appellee made application for natural gas service. This application for meter connection had to be made by the owner, who was to be the customer of the appellant gas company. The plumber had completed the installation of the gas piping in the house, and on Tuesday, December 15, requested of the city an inspection of the piping in accordance with the municipal gas code of the City of Clarksdale. On this same day, the inspection was made and the piping found to meet the requirements of said code, and, accordingly, the city issued to the gas company and Kantor a certificate of such inspection. On this date, the appellant's employee, Hubbard, with his helper Carter, went to the premises to install the meter, but found that the gas line had not been laid from the main to the point where the meter was to be placed. On December 16, this service line was laid. On the following day, Thursday, the 17th, Mr. Hubbard, with his helper Carter, returned to the premises and installed the gas meter which connected the service line with the gas piping in the house. Upon installing the meter, he observed that gas was passing through the meter, there was a clicking sound, indicating to him that gas was flowing through the meter and that something was wrong with the piping in the house. Hubbard then turned off the gas at the meter with a Stillson wrench. He then went around the house, and finding no one on the premises, left. Hubbard did not notify Kantor or the appellee that he had discovered that gas was passing through the meter, which indicated something was wrong with the piping in the house.
The evidence on behalf of appellee shows that Mr. Drew, the plumber who installed the pipes in the house for Kantor, installed a heater in the house on Friday or Saturday, December the 18th or 19th, and at that time no gas was flowing into the house — no gas service was being rendered. A Mr. Bell did some finishing work in the utility room where the explosion occurred on Friday, December 17, and testified that he smelled no gas while he was working. On Sunday, December 20, the painters worked all day on the interior of the house. On Monday, about 10 o'clock A.M., the appellee and his son went to inspect the house that he had agreed to purchase. He entered through the front door; the heater was on and some men were working; he passed through the house and went to the utility room, and there he attempted to light a cigaret. Upon striking his lighter, the explosion occurred and he was severely burned. It developed that some time after the city inspection and before the time of the explosion, someone had removed the cap off of the gas pipe in the utility room, and some unknown person or persons had turned the gas on at the meter. Mr. Drew, the plumber, was working nearby, heard the explosion, and went to the scene immediately thereafter. After helping the appellee in a car to go to the hospital, he went into the house and noticed that the furnace was burning and he cut it off; he then went to the utility room and saw the gas pipe open and burning. He then obtained a heavy pair of pliers and turned the gas off at the meter.
The negligence charged against appellant was that the appellant negligently and carelessly turned on the gas meter when its servants knew, or should have known, that gas was escaping somewhere within the interior of the residence; that the gas company negligently failed to cut off said gas meter after knowing that gas was escaping and that appellant failed to notify or warn any person that gas was escaping in the house.
(Hn 1) Appellant first contends that it was entitled to a peremptory instruction in that the appellee failed to prove any negligence on its part contributing or proximately causing the explosion which resulted in the unfortunate injuries to appellee. With this, we agree. In view of our conclusion, it is unnecessary to consider appellant's other assignments of error.
Section 8 of the Municipal Gas Code of the City of Clarksdale provides: "It shall be unlawful for any person, excepting an authorized agent or employee of a person engaged in the business of furnishing or supplying gas and whose service pipes supply or connect with the particular premises, to turn on or reconnect gas service in or on any premises where and when gas service is not at the time being rendered.
"It shall further be unlawful to turn on or connect gas on or in any premises unless all outlets are properly and securely connected to appliances or capped or plugged with screwed joint fittings."
Section 10 of said Code provides, in part, as follows: "(a) When the final piping inspection has been made, if the installation is found to comply with the provisions of this code, a certificate of inspection shall be issued by the department having jurisdiction; failure to perform required steps shall not invalidate if effectually issued.
"(b) A certificate or notification of such final piping inspection shall be issued to the gas company supplying gas to the premises who may thereon rely.
"(c) It shall be unlawful for any person furnishing gas to turn on or cause to be turned on any gas meter or meters until such certificate or notification of inspection as herein provided shall have been issued."
Sections 11(f) and 12(f) provide: "1. Before turning gas under pressure into any piping, the person in charge shall assure himself that there are no openings from which gas can escape."
Section 12(f) 3 provides in part that when a leak is discovered in the house piping at the time the meter is installed that "the meter cock should then be turned off until the necessary repairs have been made, after which the above tests should be repeated."
It is argued by appellee that the appellant was negligent in installing the meter and connecting the service line to the gas piping of the house without first ascertaining that all outlets were plugged or else all appliances were securely connected. With this we cannot agree. Answer enough would be that before installing the meter appellant had a right to rely upon the city's certificate certifying that the piping in the house complied with the city ordinance. Sec. 10(b). Appellant's action in so installing the meter in nowise contributed to or proximately caused appellee's injury, inasmuch as after turning the gas on, Hubbard immediately turned the gas off upon discovering that gas was passing through the meter and that something was wrong with the gas piping of the house. This occurred on Thursday, December 17, and the explosion which caused appellee's injury did not occur until Monday, December 21. Mr. Hubbard testified that he turned the gas off, and insofar as the record shows, appellant had nothing further to do with the premises until after the explosion. Kantor had exclusive control of the premises and all work done thereon. The appellant was not responsible for the piping of the house. It is undisputed that appellant's servant, Hubbard turned the gas off at the meter on Thursday, December 17. This is corroborated by Mr. Drew, appellee's witness, who testified that the gas was not on the day he installed the wall furnace, either Friday or Saturday, subsequent to the installing of the meter by appellant on Thursday. Nothing to the contrary appears in the record. Moreover, proof was made by a qualified expert to the effect that from the volume of gas that had passed through the meter from the time some one turned on the gas until the explosion, that the gas had been turned on between seven and eight o'clock A.M. on Sunday, December 20, which was the same day the painters worked in the house.
By turning off the gas at the meter, appellant complied with the duty imposed upon it by the gas code of the City of Clarksdale, which provides in Sec. 12 (f)3 that upon the discovery of a leak when installing the meter that "the meter cock should then be turned off until the necessary repairs have been made . . ." Appellant had the right to rely upon Section 8 of the code, which provides that no person other than appellant would turn on the gas at the meter, and was not required to anticipate or foresee that someone would unlawfully turn on the gas in violation of Section 8. Mississippi Public Service Co. v. Cunningham, 189 Miss. 179, 195 So. 472. (Hn 2) Appellant did all that was required of it in its operations at the premises in question. It installed its meter in reliance upon the city certificate of inspection, and upon discovering that gas was somehow escaping, turned the gas off at the meter. This, without more, did not proximately cause the injury to the appellee. The wrongful and unlawful turning on of the gas at the meter was the efficient intervening last contributing proximate cause of the explosion. (Hn 3) To hold otherwise would make a distributor of natural gas an insurer of its product once the gas piping on the premises was connected to the main line — (Hn 4) to hold it responsible for any damage caused by its product regardless of the fact that the damage was proximately caused by intervening forces and agencies over which it had no control. Such is not the rule in Mississippi. Mississippi Public Service Co. v. Cunningham, supra, was decided by this Court in 1940. It involved a factual situation very similar to the instant case, and city ordinances of the same kind and character as those enacted by the City of Clarksdale. This Court there held that the leaving of the gas line connected but cut off at the meter after the discovery of a leak was not negligence on the part of the appellant in that case. Since the rendition of that decision, thirteen years have elapsed wherein the rule announced in the Cunningham case could have been changed by appropriate legislation. No such action was taken by the City of Clarksdale, its ordinances placing upon the gas distributor only the duty to cut the gas off at the meter in the event a leak was discovered. This Court is cognizant of the fact that the appellant was selling and delivering natural gas, which is a highly dangerous substance. (Hn 5) However, the law is, as stated in the Cunningham case, supra, "when a gas company has notice that gas is escaping in the premises of a patron, the company must either shut off the gas or remedy the defect, and one or the other must be done as quickly as practicably possible. (Hn 6) Natural gas is an extraordinarily dangerous element, and those who are authorized to furnish it for use among the public are charged with a degree of care and skill commensurate with that danger; and in such cases, as in all cases of known danger, `the sacredness of life and limb is the declared basis upon which the law imposes a duty of care. Green v. Maddox, 168 Miss. 171, 180, 149 So. 882, 151 So. 161.' See Miss. Power Light Co. v. McCormick, 175 Miss. 337, 166 So. 534, 535." (Emphasis ours).
The soundness of the rule expressed in the Cunningham case, supra, as applied to this case is emphasized by the fact that Justice Ethridge's dissent was based primarily upon the fact that there the gas distributor installed its meter without first obtaining a certificate of inspection from the city as required by ordinances involved. In this case, appellant first acquired and relied upon such a certificate; appellant cut off the gas immediately, as it was required to do, once it became known that gas was escaping. Under the law and the circumstances of this case, this is all that was required.
Mrs. Goudelock testified, and the jury had a right to accept her testimony although it was disputed, that on Thursday, December 17, she telephoned the gas company and asked if gas service had been installed in the house so that the painters could do interior painting, and a lady employee of the gas company stated that gas would be connected the next afternoon; on the next day, Mrs. Goudelock again telephoned appellant and was told by an employee of the gas company that gas had been turned on and that the house could be heated so that the painters could work. Whether or not Mrs. Goudelock and her husband did or did not believe that the gas had been turned on is immaterial; the efficient intervening last proximate cause of the explosion and resulting injury to the appellee was the unlawful act of some person in turning the meter cock allowing the gas to flow into the house.
Reversed and judgment here for appellant.
Roberds, P.J., and Hall, Kyle and Gillespie, JJ., concur.