Arkansas Natural Gas Company v. Gallagher

• Decision Date: 02 February 1914
• Citation: 163 S.W. 791,111 Ark. 247
• Parties: ARKANSAS NATURAL GAS COMPANY v. GALLAGHER
• Court: Arkansas Supreme Court

163 S.W. 791

111 Ark. 247

ARKANSAS NATURAL GAS COMPANY v. GALLAGHER

Supreme Court of Arkansas

February 2, 1914

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

STATEMENT BY THE COURT.

This is the second appeal of these cases to this court. (See 105 Ark 477.) Chief Justice MCCULLOCH, who rendered the opinion of the court on the former appeal, stated the facts on that appeal as follows:

"Plaintiffs Patrick Gallagher and Joe Miller, instituted separate actions against defendant, Arkansas Natural Gas Company, to recover damages for personal injuries caused by an explosion of gas during the construction of a pipe line from the Caddo fields to the city of Little Rock. The actions were consolidated and tried together, the trial resulting in verdicts in favor of each of the plaintiffs, awarding damages, and the defendant has appealed to this court.

"The pipe line was laid by Booth & Flinn, a partnership, under a written contract with defendant, whereby the contractors agreed to furnish the material and do the work for a stipulated price. The contract provided that 'all material furnished by the said contractor in the construction and laying of said pipe line, and all work done shall be subject to the inspection and approval of the company, or its duly authorized agent; and that the said inspection shall be made as work progresses, and that any defective material or workmanship shall be pointed out by it as soon as the same is discovered, and the said defect shall be at once remedied by the said contractor.' It further provided that the contractors should be responsible for the proper working of the entire pipe line system for thirty days after the same should be completed and put into use, and that the line should remain in charge of the contractors after it was completed and put into use during the time that the contractors should be engaged in remedying defects pointed out by the company or its inspectors.

"During the progress of constructing the pipe line, and after it had been laid as far north as Beirne, a town or village in Clark County, one of defendant's inspectors, in going over the line, discovered a leak near Beirne, and gave notice thereof to the defendants as well as to the superintendent of the contractors. The contractors sent a force of men to that place to repair the leak, and in doing so it became necessary to strip the pipes to ascertain the precise location and extent of leaks, and also it became necessary to turn the gas into the pipe line for that purpose. The plaintiffs were both employees of the contractors in doing the work in and about repairing the line, and while eating their lunches about the noon hour an accumulation of gas in the pipes caused an explosion, which resulted in severe injuries to them. They alleged that negligence of servants of the defendant in turning in an excessive quantity or pressure of gas, and leaving it in the line too long, caused the explosion. The defendant denied that the injury was caused by any negligence of its servants, and contends that the negligence, if any was that of the contractors and their servants. The evidence shows, as before stated, that it was customary for one of defendant's inspectors to go over the line for the purpose of inspecting for leaks, and when any were discovered they were marked and notice given to the contractors. In making inspections it was necessary to turn the gas into the line, which the inspector would do, and after he had marked the place of a leak he would again turn the gas off. When the contractors went about repairing leaks, it was necessary to again turn the gas into the pipes for their benefit in discovering the precise location of leaks, and for this purpose the inspectors were instructed by defendant to turn the gas into the pipes when requested to do so by the contractors, and to turn it off under their directions. No one but defendant's inspectors were permitted to turn the gas on or off. On this particular occasion, W. H. Pitts, one of the inspectors, after he had discovered the leak, and the contractors had sent a gang of workmen to repair it, was requested by the foreman or superintendent to turn in the gas. This was done between 10 and 11 o'clock in the morning. The men were thereafter engaged up to the noon hour in stripping the pipes so that the leak could be repaired and the gas was allowed to remain in the pipes until nearly 1 o'clock, when the explosion occurred. At that time Pitts had left the line and had started to Beirne to get his lunch.

"The contention of the plaintiffs is that the explosion was caused by the negligence of Pitts in handling the gas, either in turning it on or letting it remain too long in the pipes. They insist that in doing this Pitts was the servant of the defendant, and that the latter is responsible for all his negligent acts. On the other hand, the contention of defendant is that Pitts, though in its general employment, was doing the particular service as a servant of the contractors, and that the defendant is in no wise liable for his alleged negligence."

The facts of the present record are the same, in substance, as they were on the former appeal.

Judgments reversed and causes dismissed.

Gardner K. Oliphint, W. D. Brouse and Moore, Smith & Moore, for appellant.

1. The repairing of leaks was a part of the independent contractor's duty. 105 Ark. 477.

2. The burden was on appellees to show that Pitts was the agent of the company at the time of the accident. Pitts was the agent of an independent contractor and the company is not liable for his acts. 3 Elliott on Railroads, § 1063, p. 1586; 77 Ark. 554; 152 S.W. 149.

3. A verdict should have been directed for appellant, on the uncontradicted testimony. 101 Ark. 532; 53 Id. 96; 67 Id. 514; 80 Id. 396; 96 Id 504; 69 N.E. 1078; 166 Mass. 268. The case should be dismissed.

Robertson & DeMers, for appellees.

1. On the former appeal (105 Ark. 477), it was held that it was for the jury to determine the extent of Pitts' service for the independent contractors under their direction and control. The evidence shows conclusively that Pitts was the agent of Booth & Flinn, the contractors. 86 Ark. 607. There is no material change in the evidence. 103 Ark. 345; 107 Ark. 310.

2. The court properly refused the peremptory instruction. 99 Ark. 490.

OPINION

WOOD, J., (after stating the facts).

The case was...