Central Arizona Light & Power Co. v. Bell

• Decision Date: 16 February 1937
• Docket Number: Civil 3734
• Parties: CENTRAL ARIZONA LIGHT & POWER COMPANY, a Corporation, Appellant, v. LULU E. BELL and CLARENCE H. BELL, Her Husband, Appellees
• Court: Arizona Supreme Court

64 P.2d 1249

49 Ariz. 99

CENTRAL ARIZONA LIGHT & POWER COMPANY, a Corporation, Appellant, v. LULU E. BELL and CLARENCE H. BELL, Her Husband, Appellees

Civil No. 3734

Supreme Court of Arizona

February 16, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Messrs Armstrong, Kramer, Morrison & Roche, for Appellant.

Mr George F. Macdonald and Mr. Frank W. Beer, for Appellees, and Mr. William G. Christy, of Counsel.

OPINION

McALISTER, C.J.

This is an appeal by the Central Arizona Light & Power Company from a judgment in favor of plaintiffs, Lulu E. Bell and Clarence H. Bell, her husband, for damages for injuries suffered by the former as a result of an explosion of gas in a cooking stove.

The second amended complaint on which the case was tried alleges that for many years prior to January 1, 1934, the defendant pursuant to an exclusive franchise, had furnished the citizens of Phoenix, Arizona, artificial gas and that it decided some time before that date to change its service to natural gas. Before doing this, however, it notified its gas consumers in Phoenix that it would make the changes in its equipment the use of natural gas rendered necessary and would, in addition, prepare their gas appliances so that natural gas could be properly and safely used by them for all purposes.

Following these averments the plaintiffs allege:

That they received and relied on the notice given by the defendant that it would make the changes in their gas appliances the use of natural gas necessitated, but, notwithstanding these promises, "defendant carelessly, negligently and without regard to the rights of the plaintiffs as its consumers, wholly failed, neglected and refused to prepare said domestic appliances used by plaintiffs, or the lines and equipment of defendant corporation which regulated and governed pressure and flow of its said gas to facilitate the safe use by plaintiffs of defendant's said natural gas," though such careless and negligent acts were not discovered by plaintiffs until about the 15th day of January, 1935. (Paragraph V.)

That natural gas was substituted for artificial gas on January 15, 1934, and that two months later, and at various times thereafter, the plaintiff, Lulu E. Bell, notified defendant at its principal place of business in Phoenix that

"said natural gas was not being safely or properly delivered to their said premises, in that due to uneven pressure or some reason not apparent to the said plaintiffs, the flame of said natural gas was irregular, and that on many occasions, the same would become extinguished allowing large amounts of said gas to escape in the rooms of plaintiffs' home,"

but, notwithstanding this notice, defendant failed, refused and neglected to remedy same. (Paragraph VI.)

That while plaintiff, Lulu E. Bell, was using defendant's natural gas in her cook stove at her residence on January 1, 1935,

"a large amount of said natural gas, due to the aforesaid negligence of the defendant, escaped and exploded, throwing said plaintiff, Lulu E. Bell, with great force and violence, backward and against the floor and walls of her said premises, injuring, bruising and burning said plaintiff in and about her face, arms, neck and body." (Paragraph VII.)

The defendant demurred to the complaint upon the ground that it wrongfully joins two causes of action, denied generally its averments and alleged that at no time did it enter into an agreement with the plaintiffs relative to changing-over any of the apparatus in the premises where they lived for the use of natural gas but that such change was made by reason of an agreement with L. H. North, the owner thereof; that the apparatus was used by the plaintiffs up to the time of the alleged accident but that no notice of any defect or failure therein was given the defendant by either the plaintiffs or L. H. North; and that if the plaintiff, Lulu E. Bell, received any injuries as a result of an explosion of gas in such apparatus it was due to her sole negligence and in no degree to any act or omission on the part of the defendant.

The demurrer was overruled and the case went to trial. The jury returned a verdict for the plaintiffs in the sum of $5,000 and from the judgment entered thereon, as well as from the order denying its motion for a new trial, the defendant appeals.

The overruling of the demurrer and the refusal to sustain appellant's objection, made at the opening of the trial, to the introduction of any evidence in the case are the first and second errors assigned, both being based upon the ground that the complaint joins an action ex contractu with an action ex delicto in violation of section 3748, Revised Code of 1928. It is contended that paragraph V sets up a breach of a contractual undertaking by the appellant to change all appliances owned by the consumers of gas in Phoenix so as to make them safe for natural gas and that Paragraph VI alleges a tort, to wit, neglect by appellant to repair defective service of gas to appellees after it had been notified thereof. The first allegation does, it is true, set up a contractual relation and its breach but, notwithstanding this, it is plain that the complaint does not, even though these two allegations be treated as two distinct and specific acts of negligence, come under the ban of section 3748, because the averment that appellant carelessly, negligently and without regard for the rights of appellees as its consumers, failed to prepare all gas appliances used by them for the safe and proper use of gas, or its equipment regulating the pressure and flow thereof, shows clearly that appellees were relying on negligence in this allegation. The contract alleged to have been breached is one of a class which carries with it certain duties on the part of the appellant independently of its express terms and its breach constitutes a tort. Appellant owned a franchise obligating it to supply the citizens of Phoenix with gas and when, after furnishing artificial gas for many years, it decided to substitute natural gas therefor and undertook to make whatever changes in the gas appliances of the city's consumers the safe and proper use of natural gas required, the law imposed upon it the duty to make these changes properly, because it was an undertaking calling for expert knowledge and the exercise of the same degree of care required of those managing public utilities generally, Alabama Utilities Service Co. v. Hammond, 225 Ala. 657, 144 So. 822, and any failure therein which resulted in personal injury constituted a tort, just as much so as does the failure on the part of a railroad company to transport a passenger safely after undertaking to do so. Coy v. Indianapolis Gas Co., 146 Ind. 655, 46 N.E. 17, 36 L.R.A. 535; Doremus v. Root, 94 F. 760. In 1 C.J. 1017, § 139, appears the following statement relative to these particular classes of contracts:

" There are also certain classes of contracts which create a relation out of which certain duties arise as implied by law independently of the express terms of the contract, a breach of which will constitute a tort, and in such cases an injured party may sue either for breach of the contract or in tort for breach of the duty imposed by law, the rule being that, where there is a breach of duty imposed by law, an action in tort is not precluded because such duty arises out of a contract relation. This rule applies in the case of the contractual relation between... carrier and passenger or shipper, and between other public service corporations, or persons exercising such franchises, and their patrons, such as gas or water companies, or telegraph companies."

Both at the conclusion of appellees' case and at the close of all the evidence appellant moved for an instructed verdict upon the ground that the allegations of the complaint had not been proved, and the denial of each of these motions is made the basis of an assignment. Under such circumstances it is necessary to consider the second motion only, because appellant waived any error that may have resulted from the overruling of the first motion by proceeding with the trial instead of then resting its case. Southwest Cotton Co. v. Ryan, 22 Ariz. 520, 199 P. 124. However, the grounds of the first motion were again urged in the second, and the ruling on them raises the principal question presented by the appeal. A determination of it renders necessary a statement of the relevant facts surrounding the accident.

Appellees became tenants of L. H. North at 115 North Twenty-first Avenue in July, 1933, and remained such at all times hereinafter referred to, the house being rented to them furnished and containing, among other articles, a Buck cooking stove that had been used for sixteen years at that place and operated by gas furnished by appellant. On the top of this stove were four burners and in the oven, below and under these, one which the gas reaches through a small tube connecting it with the manifold or gas pipe. The valve by which the gas passing to this burner is turned on and off is outside the stove near the bottom and within two or three inches of its right wall. After appellees had been using this stove about five months, or shortly prior to January 1, 1934, they were notified by appellant that it would within a short time thereafter make the changes in their gas appliances that the use of natural gas requires and early in January of that year it did this, natural gas being substituted for artificial on the 15th of that month. The changes made in this stove, according to the person who did the work, were these: "Adapted 4 top and 1 oven burner. Enlarged vent to prevent flame floating. Drilled 4 top burners." A...