Stenger v. Hope Natural Gas Co.

• Citation: 139 W.Va. 549,80 S.E.2d 889
• Decision Date: 23 March 1954
• Docket Number: No. 10608,10608
• Court: Supreme Court of West Virginia
• Parties: STENGER et ux. v. HOPE NATURAL GAS CO.

Page 889

80 S.E.2d 889

139 W.Va. 549

STENGER et ux. v. HOPE NATURAL GAS CO.

No. 10608.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1954.

Decided March 23, 1954.

Syllabus by the Court.

1. 'In order to sustain a recovery against a utility company engaged in the distribution of natural gas for damages caused by the explosion of natural gas upon the premises of one of its consumers, there must be evidence sufficient to sustain a finding by the jury that the escape of the gas which caused the explosion was due to some negligent act of the defendant or that it escaped from some instrumentality entirely within the control of the defendant.' Point 1, Syllabus, Agsten & Sons, Inc. v. United Fuel Gas Co., 117 W.Va. 515, 186 S.E. 126.

2. In an action for damages based on negligence, no recovery may be had unless the injury was proximately caused by the negligence, and the negligence was such as might have been reasonably expected to produce the injury.

3. A verdict based upon mere conjecture or speculation should be set aside.

4. A declaration need not set out evidentiary facts. A municipal ordinance relied on only for evidential purposes need not be pleaded.

5. The measure of recovery for property destroyed through negligence is the fair market value of the property at the time of destruction. The measure of recovery for negligent damage to property not destroyed, where the damage is of a permanent nature, is the diminution in the market value of the property by reason of the injury.

6. In an action based on negligence for recovery of damages to a dwelling, the admission in evidence of a municipal ordinance requiring replacement or repair to be made with fireproof materials, for the purpose of enhancing the amount of recovery above the fair market value of the property destroyed, or above the diminution in the fair market value of the property resulting from the negligence, if the damage be of a permanent nature, constitutes prejudicial error.

7. 'To make the opinion of a witness, as to value of quantity, admissible in evidence, he need not be qualified in the nighest degree, nor in any particular degree. It suffices that he has more knowledge of the subject matter than jurors ordinarily have.' Point 8, Syllabus, Cochran v. Craig, 88 W.Va. 281, 106 S.E. 633.

8. In an action based on negligence of a utility company in permitting gas to escape from its line, the admission of evidence relating to the defective condition of a piece of pipe removed from its gas line subsequent to the injury, for the limited purpose of establishing the defective condition, does not constitute prejudicial error.

William E. Glasscock, Morgantown, Howard F. Meek, Huntington, for plaintiff in error.

Charles S. Armistead, Morgantown, John D. Downes, Morgantown, for defendants in error.

GIVEN, President.

Plaintiffs, Joseph A. Stenger and his wife, Anna M. Stenger, instituted their action in the Circuit Court of Monongalia County against the defendant, Hope Natural Gas Company, for damages resulting from an explosion, followed by fire, to a dwelling house, and furniture contained therein, owned and occupied by plaintiffs. A verdict was returned for plaintiffs in the amount of $19,802, and judgment in that amount was entered on the verdict. The action is here on writ of error granted pursuant to the petition of defendant.

The dwelling mentioned was situated at 175 Fayette Street in the City of Morgantown, and the explosion and fire occurred shortly after eleven o'clock on Sunday morning, January 27, 1952. On that morning it had been raining and water was standing in low or sunken places in the street. The dwelling was of frame construction, two stories, with basement. It contained three rooms and large hall on the first floor, three rooms and bath on the second floor, and one finished room in the attic. There was also an inclosed sun porch situated at the southeast corner of the dwelling, but the basement did not extend under the sun porch. The front of the dwelling was approximately eight feet from Fayette Street. On the lot owned by plaintiffs, upon which the dwelling was situated, immediately west of the dwelling, was a building containing a storeroom and apartments. Immediately east of the dwelling was a building containing a storeroom and a tailoring shop. The immediate vicinity of the location of plaintiffs' property may be described generally as a business area.

There were two open gas burning fireplaces on the first floor of the dwelling and two on the second floor. Apparently no fire was burning in any of them immediately prior to the explosion. A gas burning stove for cooking, on the first floor, was used by Mrs. Stenger on the morning of the explosion, but all flames had been extinguished therefrom except the pilot lights, which burden continuously. An instantaneous water heater, equipped with a gas pilot light, which also burned continuously, was maintained in the basement. In the basement also was a coal burning furnace, in which there was fire immediately before the explosion. All natural gas used in the dwelling was furnished by defendant, a public utility company. For the purpose of this opinion we may consider the explosion as having resulted from escaping gas, though that fact is not definitely established.

The gas lines of defendant were located beneath the pavement of Fayette Street. Situated in front of the dwelling of plaintiffs, three or four feet from the property line, was a gate value inclosed in a 'gate box' with a 'lid that doesn't fit very tight'. Gas from defendant's line flowed through the gate valve and a regulator to the meter which measured the gas delivered to plaintiffs, located in the front part of the basement of the dwelling damaged by the explosion.

At the time of the explosion plaintiffs owned and operated a newsstand located a short distance from the residence. In the early morning of the day of the explosion Mr. Stenger went to the place of business. Sometime before nine o'clock Mrs. Stenger also went to the place of business. Both appear to have revisited the dwelling before eleven o'clock, and Mrs. Stenger last left the residence at about eleven o'clock. At no time on that morning did either of plaintiffs observe any odor of gas in the residence. Shortly after eleven o'clock Mr. Stenger again returned to the residence and, as he was about to enter the sun porch, the explosion occurred. He was caught in the falling debris, but was released without serious injury, and assisted the firemen, who arrived a few minutes later, in entry of the dwelling.

Upon entry of the dwelling by the firemen, a small fire, which could have been extinguished with 'two or three buckets of water', was found burning in the ceiling of the basement, near the foot of the stairway. A small fire was burning on the dining room table on the first floor, and a fire was burning under the sun porch. Witnesses differed in opinion as to whether the explosion occurred in the basement or on the first floor of the dwelling. Plaintiffs contend that the effect of the explosion was such as to completely destroy the dwelling, except as to salvage value, by bulging or displacing the sidewalls thereof. Some of the furniture in the dwelling at the time was completely destroyed, and other furniture was damaged.

Inasmuch as one of the vigorously contested questions relates to the sufficiency of the evidence to establish negligence on the part of defendant, and the sufficiency of the evidence to establish caused connection between any negligence and the damage, we must attempt to state such evidence in detail. It may be helpful, in appraising such evidence, to here point out that plaintiffs offered no direct evidence tending to show that gas from any definite source or leak in defendant's lines or fixtures followed any definite course or channel into the dwelling damaged.

Several witnesses testified to the effect that on numerous occasions, within a period of approximately two years immediately prior to the explosion, strong odors of gas were present along Fayette Street in the proximity of plaintiffs' property, and that often during rainy weather bubbles were observed arising at certain points where water was standing, especially at the gate value mentioned above. Such odors and bubbles were noticed by some of the witnesses on the morning of the explosion. Immediately after the explosion the gate valve was discovered to have been broken, and large amounts of gas were then escaping into the air from the break through the box which enclosed the gate valve. As one witness expressed it, the lid of the gate valve box 'was even dancing.' Defendant contends that the break in the gate value resulted from the impact or 'sudden jar' of the explosion, and offered witnesses who gave expert opinions to the effect that the break could have occurred in that manner. There was also substantial evidence offered by defendant that the break in the gate valve was of recent origin. The gate valve was later tested for leaks, by persons experienced in such matters, with the break completely closed, and found to have small gas leakage amounting to approximately thirty-five one-hundredths of a cubic foot of gas per hour, around the flange joint and the stem packing. The local manager of defendant company testified to the effect that the company had received no complaint of any gas leaks along Fayette Street near the vicinity of plaintiffs' property.

Immediately after the explosion a fire was observed burning under the sun porch 'on the outer edges of the porch', near the entrance to the dwelling, which the firemen believed to be a gas fire and which they did not attempt to extinguish until after the gas had been shut off at the gate valve, for fear that escaping gas might cause another explosion. Upon the closing of the gate valve, the fire went out. The evidence does not definitely show the location of any of defendant's...