City of Indianapolis v. Falvey

• Decision Date: 11 June 1973
• Docket Number: No. 172A43,172A43
• Citation: 156 Ind.App. 366,296 N.E.2d 896
• Parties: CITY OF INDIANAPOLIS, Acting By and Through John E. Ohleyer, et al., Defendants-Appellants, v. William J. FALVEY and Irene Falvey, Plaintiffs-Appellees, Hall-Neal Furnace Company, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 896

296 N.E.2d 896

156 Ind.App. 366

CITY OF INDIANAPOLIS, Acting By and Through John E. Ohleyer et al., Defendants-Appellants, v. William J. FALVEY and Irene Falvey, Plaintiffs-Appellees Hall-Neal Furnace Company, Defendant-Appellee.

No. 172A43.

Court of Appeals of Indiana, First District.

June 11, 1973.

Rehearing Denied July 18, 1973.

Patrick J. Smith, James R. McClarnon, Smith, Morgan & Ryan, Jack C. Brown, Frederick J. Graf, Martz, Beattey, Hinds & Wallace, Indianapolis, for Howard H. Albaugh and Charles W. McClellan.

Charles G. Reeder, Thomas N. Olvey, Johnson & Weaver, Indianapolis, for William J. Falvey and Irene Falvey.

ROBERTSON, Presiding Judge.

The defendant City of Indianapolis (Citizens Gas) and the two gas plumber defendants (Albaugh and McClellan) are appealing a judgment in the principal sum of $34,556.41. The judgment represents the value of the damages resulting from a gas explosion which destroyed the plaintiff's (Falvey) home. The defendant Hall-Neal Furnace Company has been found not liable and is no longer concerned with the case.

The trial court's Findings of Facts and Conclusions of Law pertinent to the appeal read:

'1. On the 12th day of September, 1962, the plaintiffs were the owners of certain real estate located in Marion County, Indiana, commonly known as 3301 Busy Bee Lane, Indianapolis, Indiana, consisting of a lot improved with a one-story dwelling house.

3. On the 12th day of September, 1962, the defendant City of Indianapolis et al., d/b/a Citizens Gas & Coke Utility was a municipal corporation of the State of Indiana duly authorized to supply inflammable gas and gas appliances to the public in the City of Indianapolis, county of Marion, State of Indiana.

4. On the 12th day of September, 1962, the defendant, City of Indianapolis et al d/b/a Citizens Gas & Coke Utility, maintained a system of mains and pipes for the transmission of gas to its customers, which included plaintiffs.

5. The gas supplied by the defendant, City of Indianapolis, et al., d/b/a Citizens Gas & Coke Utility, was a highly inflammable and explosive substance.

6. On the 12th day of September, 1962, at approximately 5:15 p.m., the defendants, Howard H. Albaugh and Charles W. McClellan, Jr., commenced with the work and labor necessary to convert plaintiffs' furnace to gas.

8. On the 12th day of September, 1962, at approximately 6:30 p.m., a break in the gas line occurred in plaintiffs' basement somewhere between the point at which the gas service entered plaintiffs' basement and the outlet side of the gas regulator.

9. On the 12th day of September, 1962, at approximately 7:20 p.m., the accumulation of gas resulting from the break in the gas line in plaintiffs' basement was ignited which resulted in and caused an explosion which damaged plaintiffs' real estate and personal property therein.

10. The defendant, City of Indianapolis, et al., d/b/a Citizens Gas & Coke Utility, was notified, through Mr. Woodrow Shotts, the dispatcher, of the emergency break in the gas service line at 6:40 p.m., on September 12, 1962.

II. The break in the gas line was a 'high pressure leak' and was entitled to first priority in accordance with the records and procedures of the defendant gas company.

12. The time of arrival at plaintiffs' residence by the defendant, City of Indianapolis et al., d/b/a Citizens Gas & Coke Utility, was 7:30 p.m. on September 12, 1962.

13. The gas explosion resulted in damages to plaintiffs as stipulated at trial in open court, in the amount of Thirty-Four Thousand Five Hundred Fifty-six Dollars and Forty-one Cents ($34,556.41), exclusive of interest.

15. The defendants, Howard H. Albaugh and Charles W. McClellan, Jr., were negligent as follows:

(a) They carelessly and negligently attempted to connect a gas distribution line from the gas furnace to the meter, and in the course of such attempted installation applied a downward pressure on said meter, which downward pressure together with the unsupported weight of the meter, gas piping and gas lines caused the gas line to break between said meter and the basement wall of plaintiffs' house.

(b) They carelessly and negligently failed to seal the broken gas line, thereby permitting said house to become filled with gas, which resulted in the above described explosion.

(c) They carelessly and negligently failed to open windows and doors in said house to permit the escape of gas after said gas line was broken.

(d) They carelessly and negligently permitted gas to escape from the gas plumbing and appliances in said house, causing said house to fill with gas, which resulted in the explosion.

(e) They were negligent in failing to shut off the electric current prior to commencing the installation of the gas conversion unit at the plaintiffs' residence. They were further negligent in failing to shut off the gas at the street curb shut-off value prior to commencing the installation in plaintiffs' basement.

(f) They were further negligent in failing to ask the dispatcher at the Citizens Gas & Coke Utility the location of the curb street shut-off value in order that they might shut it off prior to the explosion and the destruction of plaintiffs' property.

16. The defendant, City of Indianapolis, et al., d/b/a Citizens Gas & Coke Utility, was negligent as follows:

(a) It carelessly and negligently failed to turn off said gas after it had actual notice of the leaking of said gas in the plaintiffs' house when it knew or in the exercise of reasonable care should have known that such failure was likely to cause damage to the property of others and more particularly to the property of the plaintiffs.

(b) It was further negligent in failing to advise the defendants Albaugh and McClellan of the location of the curb shut-off value and also was negligent in failing to advise the defendants Albaugh and McClellan to shut off the electricity of the home in order to prevent an electrical device from igniting an explosive mixture of the gas in plaintiffs' home.

(c) It was further negligent in failing to have a sufficient number of emergency vehicles available to handle priority emergency leak orders.

17. The negligence of all defendants, except Hall-Neal Furnace Company, proximately caused the damages which plaintiffs have sought and are entitled to recover.

CONCLUSIONS OF LAW

1. The Court now finds that the law is with the plaintiff and with the defendant Hall-Neal Furnace Company.

2. The Court now finds that the facts as found specially herein constitute negligence on the part of defendants Howard H. Albaugh and Charles W. McClellan, Jr., and the defendant City of Indianapolis, d/b/a Citizens Gas & Coke Utility, which concurred to become the proximate cause of the damage sustained by plaintiff herein.'

A brief review of the evidence contained in the over 2300 page record, and viewed most favorably to the Falveys, shows that about a month prior to the explosion Citizens Gas moved the gas meter in the Falvey home to a point where it could be read through a basement window. The Falveys then contacted Albaugh about converting the furnace to gas, and he subsequently agreed to do the work. Some preliminary work was done by Albaugh on the evening prior to the explosion. The next day Albaugh and McClellan arrived at the Falvey home between 5:15 and 5:30 p.m. They subsequently disconnected the meter and it sagged from twelve to eighteen inches from its previous position, hanging by the gas pipes. They left the meter in this position while they went to a hardware store to obtain some needed parts. Upon their return Albaugh climbed into a laundry tub and lifted the meter into place to reconnect it. At this point in time the gas line ruptured between the high pressure side of the regulator and the place where the line came through the basement wall, the break being closer to the latter. Albaugh testified that he had heard of older gas pipes breaking like that before, but it had never happened to him.

Albaugh tried to stop the leak with a wiping cloth, but was unsuccessful. McClellan went outside of the house to begin looking for the curb box which contained a cut-off valve. An attempt to enter the basement shortly thereafter was futile because of gas fumes and blowing dust and dirt. Albaugh then attempted to call Citizens Gas. His first four or five trys to reach them resulted in getting a recording which informed him that all of the gas company's telephone lines were busy. The evidence was that 21 telephone lines were available for such calls. When Albaugh finally got his call through, some ten minutes after the pipe broke, Albaugh told the gas company representative of a 'bad gas leak' and that they could not find the curb box. The leak was making enough noise to be heard over the telephone by the gas company representative. A neighbor also testified she could hear the escaping gas from the Falvey's front yard. Albaugh and McClellan opened the windows and doors upstairs but not in the basement. They also continued searching for the curb box.

When help did not arrive McClellan telephoned the gas company again with a renewed plea for assistance and prophetically adding that if they didn't arrive shortly there was no need to come for the house would not be there. Albaugh made yet another telephone call to the gas company.

The gas exploded leveling the house. The Fire Department arrived several minutes later with the service man arriving at about 7:30 p.m., having been dispatched at about 7 p.m., when he called in on his two-way radio.

The organizational structure of Citizens Gas, insofar as handling the incoming calls on the evening in question, was to refer complaints to one of two departments. If the call concerned a leak inside a home it was referred to the utilization department, and if outside the home to the street distribution department. The utilization department had twelve men on the 'B' shift, six of whom were carry-overs from the 'A' shift. Each was...