Butler v. Civic Gas Co.
| Decision Date | 23 September 1947 |
| Docket Number | 32254. |
| Citation | 188 P.2d 843,199 Okla. 597,1947 OK 249 |
| Parties | BUTLER v. CIVIC GAS CO. et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 20, 1948.
Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.
Action by Clara Butler against Civic Gas Company, an Oklahoma corporation, the City of Atoka, S. J. Campbell, the Gas Service Corporation and Southeastern Gas Company, for damages for destruction by fire of plaintiff's residence and contents thereof in the City of Atoka. From a judgment for defendants, plaintiff appeals.
Judgment affirmed as to all defendants except Civic Gas Company as to which judgment reversed and cause remanded with directions.
Syllabus by the Court.
1. The relation of the Federal Administrative Agency, WPA, to a city for which street improvements are made, is analogous to that of an independent contractor where no supervision or control of the work is had by the city. In such circumstances, the city is not liable for damages to a third person, caused by the negligent performance of the work by the WPA in the absence of a showing that the work is inherently dangerous, or unlawful, or that the city owed a contractual or defined legal duty to the injured party in the performance of the work. Oklahoma City v. Caple, 187 Okl. 600, 105 P.2d 209.
2. Where the evidence is conflicting and a demurrer is interposed thereto, all the facts and inferences in conflict with the evidence against which the action is to be taken must be considered untrue, or withdrawn and eliminated from consideration, leaving only that which is most favorable to the party against whom the demurrer is directed, and if upon consideration thereof there appears to be sufficient evidence to support a verdict in favor of the party offering the evidence, the demurrer should be overruled.
3. Where defendant demurs to plaintiff's evidence in chief and the demurrer is not sustained, and defendant produces evidence in his own behalf upon the points upon which plaintiff's evidence is deficient and rendered insufficient to support a verdict for plaintiff, and defendant's evidence supplies such deficiency, this court will not consider the sufficiency of plaintiff's evidence alone. If the evidence as a whole presents a question for the jury, an order sustaining the demurrer thereto cannot be sustained.
Charles B. Tucker, of McAlester, A. R. Telle, of Atoka, and Utterback & Utterback of Durant, for plaintiff in error.
C. B Meraminger, of Atoke, M. D. Green and John E. M. Taylor, both of Oklahoma City, for defendant in error City of Atoka.
Counts & Jones and H. I. Aston, all of McAlester, for defendants in error Civic Gas Co., S. J. Campbell, Gas Service Corporation and Southeastern Gas Co.
This action was commenced by plaintiff, Clara Butler, against Civil Gas Company, the City of Atoka, S. J. Campbell, the Gas Service Corporation, and Southeastern Gas Company to recover damages for the destruction by fire of her residence and contents thereof, in the City of Atoka.
The trial court sustained demurrers of the several defendants to plaintiff's evidence and directed a verdict for defendants.
The defendants, other than the City of Atoka, are sued as owners or parties interested in the gas system serving the city. The negligence charged against them is that their gas line in the city street at the intersection of Ohio Avenue and B Street was buried to a depth of less than 18 inches at the time it was installed, in violation of requirements of the franchise granted by the city. The negligence charged against the city is that having knowledge that the gas line or pipe was not buried the required depth, it permitted, or caused, one of its employees to plow into and break the gas line, by which the gas pressure in the pipe running into plaintiff's residence was regulated, causing the pressure and volume of gas in the line to be suddenly increased, resulting in the fire which destroyed plaintiff's property.
This is not a question of pleading, but the sole question is whether the evidence was sufficient to require the submission of the issues as joined, to the jury. The parties brief the case on the theory that if the pipe was not buried to the depth required by the franchise, the Civic Gas Company was guilty of negligence.
The uncontroverted facts are that in the spring of 1939 the City of Atoka granted a franchise to defendant Civic Gas Company which, among other things, required the Gas Company to lay all its gas lines 18 inches below established grade of the streets, avenues, and alleys as then or thereafter established. Later in that year gas lines to serve the citizens with gas were laid throughout the city, including Ohio Avenue, and gas was furnished under the franchise.
In 1941 the Works Progress Administration (WPA) approved an application made by the city for a street improvement project including the improvement of Ohio Avenue. On April 3, 1941, while one of the employees of the city was working under the supervision of a WPA foreman or subforeman, he plowed into and broke the gas pipe line of the Gas Company, which controlled the gas pressure in the service lines leading to the consumers. This greatly increased the pressure and flow of gas in the service line and caused numerous fires, among them the one which damaged plaintiff's property.
Ohio Avenue runs north and south and B street runs from west to east into Ohio Avenue, terminating there. The place at which the pilot line was broken was on the west side of Ohio Avenue, about 8 feet east of the west side of said street and about the center of B street extended into the intersection.
The break occurred while Ohio Avenue was being prepared for paving under the WPA project. The man who broke the line was operating a motor grader to which was attached a scarifier, in implement with plow-like teeth which extend six or seven inches below the blade of the grader, and was being used to plow up or loosen the earth so that the same could be more readily removed in excavating a sub-grade for the pavement. On a second trip across the intersection where the line was located, he caught the pilot line with one of the teeth on the scarifier and broke it. The pilot line was 1/2 inch pipe. It was located alongside of or about three inches above the main gas line, the evidence being in conflict on the point.
The plaintiff produced no witness who testified directly that when the gas system was installed in 1939 the pipe at the intersection of Ohio Avenue and B Street was not buried the full 18 inches below the surface as prescribed by the franchise. Two witnesses produced by plaintiff, one of them being the operator of the grader, testified that from their investigation, observations, and measurements made immediately after the line was broken, the pipe line at that place was only six or seven inches below the surface of the street and that the pilot line was about three inches above the main line.
One of these witnesses, F. E. Flowers, testified that he was in the City Street Department in 1939 when the gas lines were laid; that he had no knowledge of the depth to which the gas line had been buried when laid at that particular intersection, but he did not think all the gas lines were buried 18 inches. He testified that Ohio Avenue at the intersection of B Street sloped some and that the water ran across the street; that it had been graveled at the place where the line was broken; that Ohio Avenue had been dragged and run over with a grader frequently during the period of time between the laying of the line and the time it was broken; that he was over it every day and imagined the grade or level of Ohio Avenue at the intersection of B Street remained approximately the same.
W. H. Smith, the man who operated the grader with the scarifier attached, testified that he was operating the scarifier which broke the pilot line, under the direction of the WPA sub-foreman; that he entered that part of the intersection where the gas line was located, under protest, and advised the WPA foreman that the gas line was there and that he was afraid the scarifier might interfere with the line, but the WPA foreman, or sub-foreman, specifically directed him to go ahead with the work, which he did; that the first time he ran the scarifier over the line the teeth went into the ground to a depth of four or five inches; that on the second trip he did not know how deeply they went because of the loose dirt, but he did not think they went as deeply as on the first trip, but it was on the second trip that the scarifier struck and broke the gas line.
At the close of plaintiff's evidence in chief, the defendants severally demurred. The court did not at that time rule on the demurrers, but stated 'I will pass on the demurrers at the close of the evidence'.
Obviously the jury, in order to find defendants, other than the city and particularly the Civic Gas Company, guilty of negligence could do so only by finding as a fact that the pilot line, when laid, was not placed 18 inches below the surface of the street at the place where it was broken. As stated before, there was evidence that the pilot line was not more than six or seven inches below the surface of the street at the time it was broken. If it was laid 18 inches below the surface in 1939, then the grade or level of the street in the two years' time must have been lowered by wear, erosion, dragging, or grading, at least 11 inches. At the close of plaintiff's evidence, there was no competent evidence tending to prove that such a change had not taken place. The only evidence going to that question was that of the witness Flowers who testified that he imagined the grade of Ohio...
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