Chilton Butane Gas, Inc. v. Marcus

• Decision Date: 28 September 1972
• Docket Number: 5 Div. 919
• Parties: CHILTON BUTANE GAS, INC., a corporation v. Connie MARCUS, a minor, etc.
• Court: Alabama Supreme Court

Page 140

267 So.2d 140

289 Ala. 292

CHILTON BUTANE GAS, INC., a corporation v. Connie MARCUS, a minor, etc.

5 Div. 919.

Supreme Court of Alabama.

Sept. 28, 1972.

Robert S. Lamar, Jr., Ball, Ball & Matthews, Montgomery, for appellant.

Joe G. Burnett, Clanton, Fred Blanton, Birmingham, for appellee.

McCALL, Justice.

This action was brought by Connie Marcus, a minor, suing by her mother and next friend, Barbara Cleckler, for personal injuries suffered by her when the home she shared with her mother and stepfather, Mr. and Mrs. F. H. Cleckler, exploded. The defendant, Chilton Butane Gas, Inc., a corporation, here appeals from a judgment entered on the jury verdict for plaintiff and from the judgment overruling its motion for new trial.

At the time of the accident, January 15, 1969, the home which six-year-old Connie Marcus shared with the Clecklers was equipped with a small space heater. The heater had been obtained from her mother's family. Mr. Cleckler installed it himself. This included the making of all connections of a pipe, with fittings, between the propane gas tank in the yard and the heater. There were two valves which controlled the flow of gas to the heater, one located inside the house at the heater, the other outside on the 120 gallon gas tank which supplied the heater. If either of these valves were in the 'off' position, gas would have been unable to flow from the tank into the house.

The space heater had been left burning through the night, and, during the early morning hours of January 15, it went out. Efforts to relight the heater were to no avail. All members of the family left the house sometime after 6:00 a.m. in the pursuit of their daily activities, and shortly thereafter Mrs. Cleckler called defendant, Chilton Butane Gas, Inc. She told the secretary with whom she spoke that she was out of gas, requested that 100 gallons of gas be delivered before she got home from work, and further informed the secretary that no one would be at home.

Pursuant to this order, Sam Davis, an employee of defendant, delivered 95 gallons of propane gas into the Cleckler's tank during the day of January 15. Although on a previous delivery the gas company had shut the gas off by use of the valve at the tank and had left a note to this effect, on the date here in question Davis neither shut off the flow of gas into the home by use of the valve nor gave notice of such failure.

The Clecklers and Connie returned home about 6:00 p.m. Mrs. Cleckler, assuming that the gas had been delivered, struck a match to light the space heater. This ignited the propane gas which had accumulated in the room and caused the explosion in which plaintiff suffered the injuries which are the subject of this litigation.

When the premises were examined after the explosion, it was discovered that both the valve at the tank and the one located inside the house at the heater were in the 'on' position.

At the trial of the case, the opinion was expressed by an inspector for the Alabama L.P. Gas Board that it would be unsafe for a liquefied petroleum deliveryman not to cut the gas off at the tank when making a delivery with the knowledge that the tank was empty and that no one was at home.

Appellant's first assignment of error asserts that the trial court erred in overruling defendant's demurrer to the complaint as last amended. The gravamen of the complaint is defendant's negligent delivery of gas to the Cleckler home, with resultant injury to plaintiff or, in the explicit language of the complaint as last amended:

'* * * that the Defendant negligently failed to stop the flow of the propane gas so delivered into the home of Plaintiff and negligently failed in any manner to give notice that such propane gas had been delivered and was present in the said 120 gallon propane gas tank without the flow of gas into the home of the Plaintiff being stopped by the turning of the cut-off valve which was present on the said 120-gallon propane gas tank at said time and said place. * * *'

In an action grounded in negligence, it is necessary to aver a duty owed by defendant to plaintiff, a breach of that duty, and injury to the plaintiff as a proximate result of the breach. Gilbert v. Louis Pizitz Dry Goods Co., 237 Ala. 249, 186 So. 179. A general averment of negligence, or breach of duty, is sufficient, but a cause of action is not stated unless facts are averred which show the existence of a duty on defendant's part to act, arising out of the relation of the parties. Remsey v. Sentell Oil Co., 280 Ala. 475, 195 So.2d 527; Thompson-Hayward Chemical Co. v. Childress, 277 Ala. 285, 169 So.2d 305; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Western Ry. of Alabama v. McGraw, 183 Ala. 220, 62 So. 772. Thus, merely alleging that a given act was negligence or was negligently done, without more, is not sufficient to state a cause of action. Alabama Power Co. v. King, 280 Ala. 119, 190 So.2d 674. On the other hand, when a complaint goes beyond a general averment of neligence and specifies particular acts as constituting the negligence on which the action is founded, the complaint is insufficient on demurrer unless such acts themselves amount to negligence. Thompson v. White, 274 Ala. 413, 149 So.2d 797; City Ice Delivery Co. v. Goode, 228 Ala. 648, 154 So. 775.

In determining whether the complaint states a cause of action, we must determine whether defendant's failure to stop the flow of gas into the Cleckler house and its failure to notify the Clecklers of this omission was, in fact, the breach of some duty it owed plaintiff. We have found no case previously decided by this court which is addressed to this precise question. However, our search for a solution to the problem has been aided by a study of the law relating to suppliers of gas generally and of an analogous line of cases.

Those dealing with dangerous commodities, such as liquefied petroleum gas, must use a degree of care commensurate with the dangers involved; this degree of care is the same degree of care and vigilance which persons of skill and prudence observe under like conditions. Hall v. Dexter Gas Co., 277 Ala. 360, 170 So.2d 796; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757. This principle was expressed in the following language in 38 C.J.S. Gas § 38, p. 726:

'The obligation resting on a gas company requires the exercise of ordinary care and prudence in the construction of its works and in the conduct of its entire business, so as not to endanger life and property. Thus employees of a gas company entering on the premises of another on business of the company are bound to use due care to avoid injuring the owner who is entitled to rely on the use of such care. * * *'

The general rule, above stated, requiring the use of ordinary care and diligence on the part of a gas company, is applicable to its delivery of gas into the residence or other building of a consumer. Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 154 P.2d 498; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757; 38 C.J.S. Gas § 42, p. 735. But even though one who supplies and delivers liquefied petroleum gas is held to a duty of due care, he is not made an insurer. Instead, he may rely upon the reasonable anticipation that one who has ordered a delivery of gas to his premises will himself exercise care to prepare the premises for the safe receipt and use of the gas.

There is wide agreement among authorities with respect to the scope of the duties of a supplier of gas. The following excerpts are illustrative of numerous authorities to a like result:

'* * * Accordingly, the rule has been laid down that, in the absence of any fact on which to base an inference of duty, the failure of a gas company, on introducing gas into a dwelling on application, to inspect pipes or fixtures which were placed therein by the owner and over which the company has no control, is not negligence. The company is warranted in assuming that the interior system of pipes is sufficiently secure to permit the gas to be introduced with safety, and is not liable for injuries caused by leaks therein of which it had no knowledge. To render the company liable in such cases there must be facts alleged to show notice of defects, or facts from which an inference of duty to inspect arises either from contract, custom, or franchise. * * *' 38 C.J.S. Gas § 42, p. 736.

'* * * (Authorities on the question) are to the effect that defendant in such cases is not under duty, unless employed for that purpose, to inspect pipes or fixtures which are placed in the dwelling by its customer or his contractors over whom defendant has no control, and that The furnisher of gas in such cases Is warranted in assuming that the interior system of pipes is sufficiently secure to permit the gas to be introduced with safety. 28 C.J. p. 594, § 59, where many cases are cited. The rule may be different when the party furnishing gas knows that the interior arrangments are dangerously defective; but in this case there is no evidence sufficient to warrant a conclusion of such knowledge. * * *' Triplett v. Alabama Power Co., 213 Ala. 190, 191, 104 So. 248, 249. (Emphasis supplied.)

'But, while a distributor of gas must exercise a high degree of care to see that no person is harmed in its distribution and while under its control, such responsibility is limited to the time the gas is in the company's own pipes, or containers, unless it has been allowed to escape, or having escaped, has created a dangerous hazard, known or which should have been known to a distributor, who has neglected to remedy the condition. * * *

'* * * The owner or occupant of the premises is obliged to keep the pipe lines and equipment in repair or notify the company of their defective condition, otherwise the company is not liable for negligence. * * *' Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 827--828, 154 P.2d 498, 504.

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