Brown v. St. Louis County Gas Co.

• Decision Date: 11 July 1939
• Docket Number: No. 24969.,24969.
• Parties: BROWN v. ST. LOUIS COUNTY GAS CO.
• Court: Missouri Court of Appeals

131 S.W.2d 354

BROWN v. ST. LOUIS COUNTY GAS CO.

No. 24969.

St. Louis Court of Appeals. Missouri.

July 11, 1939.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Action by Mabel E. Brown against St. Louis County Gas Company to recover on account of damage done to plaintiff's dwelling house by reason of freezing and bursting of pipes and radiators of hot water heating system. Judgment for plaintiff, and defendant appeals.

Reversed.

A. E. L. Gardner, of Clayton, for appellant.

Jerry Mulloy and Richard F. Ralph, both of Clayton, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, Mabel E. Brown, to recover from defendant, St. Louis County Gas Company, on account of damage done to her dwelling house by reason of the freezing and bursting of the pipes and radiators of the hot water heating system installed in her house, which damage occurred during the absence of plaintiff and her family from home between December 20, 1935, and January 1, 1936, when the supply of gas to the burner in the basement became entirely shut off due to the fact that the mechanical equipment which controlled the intake of gas failed to function as it was designed to do.

Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $600. Judgment was entered accordingly, and defendant's appeal to this court has followed in the usual course.

The action was based purely upon the theory of general negligence on the part of defendant with respect to certain facts about which there was but a minimum of conflict in the evidence.

Plaintiff resided with her husband, two sons, and a housekeeper at No. 6 Fieldston Terrace, in St. Louis County. As has been indicated, the house was equipped with a hot water heating system, with the heat supplied from a gas burner in the basement which had been installed in January, 1935. The gas was brought into the premises through a pipe or gas line which led through what is known as a solenoid valve located outside the furnace, and thence inside to the burner, which was lighted on changing temperatures from an adjacent pilot light which was kept continually burning in the interior of the fire box.

The function of the solenoid valve was to regulate the flow of gas into the burner by closing when the temperature in the house was such that no further heat was required, and by opening so as to permit the intake of gas when the temperature dropped below the point at which the thermostat was set. The latter was located in the dining room on the first floor, and was connected with an electric clock equipped with arms or trip hands somewhat like those of the ordinary clock, which revolved around the dial, and, at certain set or predetermined times during the day and night, moved a lever which regulated the temperature that the thermostat would thereafter maintain through its electrical control over the operation of the solenoid valve until the hour should arrive for the next succeeding change in temperature.

In other words, once the thermostat was manually set for the raising and lowering of temperature at the times of the day and night desired by the occupants of the house, the whole mechanism thereafter operated automatically; and if such automatic change of temperature was for any reason to be discontinued, this could be brought about by merely loosening the screw which held the hands in position on the clock. With the hands thus loosened so that they would no longer rotate around the dial, there would be no tripping or movement of the lever by which, through electrical contact in the thermostat, the solenoid valve would be caused to open or close as the case might be; the lever would remain stationary in its fixed position unless it should be moved by hand or other external force; and the particular temperature would be thenceforth constantly maintained which the position of the lever indicated.

In December, 1935, plaintiff and her family were planning a visit to Georgia over the holidays, and, in preparation for an extended absence from home at that season of the year, thought it advisable to have the water drained out of their heating system before their departure. Since neither plaintiff nor her husband, according to their own testimony, had any "knowledge as to the operation of the gas burner or the manipulation and adjustment of it", it became necessary for them to enlist the services of defendant, and to that end plaintiff's husband telephoned the manager of defendant's service department, advising him that they were desirous of draining their heating system on account of the fact that they expected to be away from home 10 or 12 days, and requesting that he have some one "come out and cut the gas off".

In response to such request, defendant's service manager suggested that "it would not be necessary to drain the system for such a short trip, and that they would send a man out to make proper adjustments of the various apparatuses necessary to maintain a temperature of 50 degrees Fahrenheit in the house" while the family was away. Subsequent testimony was to the effect that "he designated the adjustments he would make as the thermostat and the various valves controlling the heating, the gas burner that furnished heat to the hot water system". This proposal was accepted, and on December 19th, the day before the family expected to leave, one of defendant's employees named Mitchell came out at 11 o'clock in the morning to make whatever adjustments were required in order to put the service manager's suggestion into effect. Plaintiff's husband testified that he was not present at the time and was therefore uninformed as to the nature of the adjustments that were made. Plaintiff herself testified that while she was at home when Mitchell called to make the adjustments, she did not talk to him, and likewise had no knowledge of what he did, save only that she knew "he was there an hour" because she had "heard him".

After Mitchell's adjustments had been completed about noon on December 19th, plaintiff and her family continued to occupy the house until about noon on the following day, when they left for their destination in Georgia from whence they did not return home until January 1, 1936. It was conceded that until the moment of their departure the heating system had functioned properly in all respects (as it had indeed done from the very time of its installation), but upon their return they discovered that during their absence the radiators and water pipes had frozen and bursted—particularly those situated on the upper floor—and that the water had run out and frozen upon the floors and stairway, producing substantial damage to the interior of the building in addition to that done to the units of the heating system itself. An investigation disclosed that while the pilot light was still burning in the furnace, the supply of gas to the burner had in some manner become entirely shut off during the period that they were away from home, so that with no heat whatever in the building, the damage had resulted for which plaintiff seeks to be compensated in this action.

Other of plaintiff's evidence disclosed that during the family's absence from home, a key to the house was left in the custody of a neighbor, Mrs. Groom, who lived "right back" of plaintiff's house. It appears from the record that plaintiff and her husband were not in strict agreement as to which of them had given Mrs. Groom the key, or what the purpose had been in doing so. Plaintiff testified that she herself had given the key to Mrs. Groom in accordance with her usual custom of intrusting a key to some neighbor upon leaving home so as to have it available in case of fire, while her husband's testimony was that he himself had left the key with Mrs. Groom, following the suggestion of defendant's service manager that he leave a key with a neighbor and notify defendant where it could be found in the event it became necessary for the house to be entered during the family's absence. As for Mrs. Groom, she merely testified that she had not used the key to enter the house during the time that the family was away, and that she handed it back to them upon their return.

Among defendant's several witnesses was Mitchell, the employee who had been sent out by the service manager to make the adjustment, who testified that he went to plaintiff's home for the purpose of setting the thermostat clock to maintain a temperature of 50 degrees while the family was away; that he arrived on the premises at 11 o'clock in the forenoon, and remained there about 15 minutes; that all he did by way of adjustment was to loosen the two trip hands on the clock so that they would no longer rotate around the dial; that he then set the control lever at 70 degrees in view of the fact that the family was not leaving until the following day, and left instructions that when they were ready to leave, they should set the lever at 50 degrees or at any other temperature they might desire; and that having completed the adjustment on the thermostat, he then went down into the basement,...