Barton v. Gas Service Co.

• Decision Date: 02 February 1968
• Citation: 423 S.W.2d 902
• Parties: Ed BARTON et al., Appellants, v. GAS SERVICE COMPANY, Inc., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 902

423 S.W.2d 902

Ed BARTON et al., Appellants, v. GAS SERVICE COMPANY, Inc., Appellee.

Court of Appeals of Kentucky.

Feb. 2, 1968.

Joe Nagle, Denham, Ralston & Nalgle, Middlesboro, for appellants.

Grant F. Knuckles, James S. Wilson, Pineville, for appellee.

PALMORE, Judge.

On July 16, 1964, a building owned by the appellant Barton and occupied by the appellants Nickens, French and their wives was destroyed by a fire which apparently originated in or with an explosion. The owner, the tenants, and the owner's insurer brought this suit against the appellee, Gas Service Company, Inc., for property loss and damages, alleging in general terms that the fire was caused by its negligence. They appeal from a summary jugment in favor of the defendant company.

The single question to be decided is whether, from the information thus far developed in the proceeding, it is so clear the plaintiffs cannot win that a summary judgment is appropriate.

After commencement of the action the plaintiffs served interrogatories on the defendant company, which were answered in due course, and both sides took discovery depositions. In addition, an affidavit of the plaintiff Nickens was attached in support of the response to the defendant's motion for summary judgment. It is conceded that none of the information so elicited indicates the cause of the explosion nd that further evidence in this respect would be necessary in order for the plaintiffs to survive a motion for directed verdict in the event of a trial.

The building was constructed in 1950. It consisted of garage and storage space on the ground floor and two apartments upstairs. The ground floor space was rented to the Kerns Bakery Company. The Frenches and Nickenses occupied the two apartments. French was an employe of Kerns Bakery Company. He and his wife moved into their apartment on the morning of July 16, 1964, and the explosion occurred between 8:00 and 9:00 o'clock that night. The Nickenses had lived in the other apartment since 1960.

Each of the two apartments was equipped with a gas floor furnace, and the French apartment was furnished with a gas cook stove. The two apartments were separately metered for gas, which was provided by the defenant company from its gas main located across the street from the apartment house. The meters were located on the outside wall of the building. As was customary, the company had removed the meter for the French apartment when the previous tenants left, and during the afternoon of July 16 two of its service men installed another meter for the Frenches. One of these men testified that when the gas was turned on the hand one the meter dial remained stationary, indicating the absence of any gas leak in the metered premises, and that he then lighted the cook stove in the French apartment and found it to be in good order. Had he detected any evidence of a leak, his instructions from the company were to cut off the supply and notify the owner. The duties of a supplier of gas under such circumstances are set forth in Moore v. London Gas Company, Ky., 372 S.W.2d 270 (1963).

A gas hot water heater was located in the middle of the downstairs garage area. Evidently it was on the Nickens' meter, because the evidence indicates it served both apartments. It was in use on the day of the fire. At the time of the fire two motor trucks were in the garage. Each had gasoline in its fuel tank. The hot water heater was located on the floor between them, about four feet from each. When discovered, the fire had enveloped the downstairs ceiling area over the trucks.

None of the witnesses professed to know how the fire originated, except insofar as it seems to have been accompanied by an explosion. The meter had been installed in the mid-afternoon. Mrs. French's father was in and out of the apartment most of the afternoon and smelled gas after the gas service men came. He says he reported this to them when they came upstairs to light the stove, and that the odor of gas was not as strong after they left. Mrs. French made a trip to London, Kentucky, during the afternoon and returned at about 7:00 P.M. At that time, she says, she smelled gas 'in the apartment and downstairs' and so told her husband. The explosion took place between one and two hours later.

In his discovery deposition Nickens, when asked if he knew of any witnesses who purported to know anything about the fire, read off a list of 14 names. None of these persons has testified and the record does not suggest what, if anything, can or cannot be proved by any of them.

What happened here is that the defendant took the testimony of the parties and witnesses who seemed most likely to have the information necessary to establish the plaintiffs' case, and the information thus extracted is not enough to establish a case. Nor is the evidence obtained by the plaintiffs through examination of the defendant's employes and representatives. Nothing, however, has been developed that is fatal to the cause of action the plaintiffs assert, nor is it clear that it cannot be established through other witnesses.

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