City of Villa Rica v. Couch

• Citation: 281 F.2d 284
• Decision Date: 22 July 1960
• Docket Number: No. 18082.,18082.
• Parties: CITY OF VILLA RICA and Southern Natural Gas Company, Appellants, v. Mrs. Marie COUCH and Mrs. Eva Broom, Appellees. SOUTHERN NATURAL GAS COMPANY, Appellant, v. Mrs. Winnie Leathers DYER, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

281 F.2d 284 (1960)

CITY OF VILLA RICA and Southern Natural Gas Company, Appellants, v. Mrs. Marie COUCH and Mrs. Eva Broom, Appellees.

SOUTHERN NATURAL GAS COMPANY, Appellant, v. Mrs. Winnie Leathers DYER, Appellee.

No. 18082.

United States Court of Appeals Fifth Circuit.

July 22, 1960.

R. Emerson Gardner, Atlanta, Ga., Walter D. Sanders, Newnan, Ga., Hugh E. Wright, Atlanta, Ga., Shirley C. Boykin, Wm. P. Johnson, Carrollton, Ga., Moise, Post & Gardner, Atlanta, Ga., for appellant.

Hamilton Lokey, Atlanta, Ga., A. Cecil Palmour, Summerville, Ga., Anthony A. Alaimo, Brunswick, Ga., J. T. Johnson, Oneonta, Ala., Joseph L. Llop, Atlanta, Ga., Oscar W. Roberts, Jr., Carrollton, Ga., Cook & Llop, Atlanta, Ga., Bobby Lee Cook, for appellees.

Independent Natural Gas Association of America, by Lawrence H. Gall, Washington, D. C., Acting Gen. Counsel. Amicus Curiae.

Before HUTCHESON, JONES and WISDOM, Circuit Judges.

HUTCHESON, Circuit Judge.

Ordered by the Federal Power Commission, on December 29, 1953, and July 16, 1954, to serve the "City of Villa Rica, Georgia, a municipal corporation * * legally authorized to engage in the local distribution of natural gas", Southern Natural Gas Co., "a natural gas company within the meaning of the Natural Gas Act 15 U.S.C.A. § 717 et seq.", began selling gas to Villa Rica in 1954, and delivering it at a point about six and one-half miles from Villa Rica, and it has since continued to do so pursuant to the contract which, providing for quantities and costs of gas and fixing the place of delivery as above, further provided:

"Purchaser City of Villa Rica shall also construct, maintain and operate pressure regulating equipment of standard type for the purpose of reducing the pressure of gas as delivered by Company Southern Natural Gas Company to a pressure suitable for introduction into Purchaser\'s system and an odorizing plant to introduce a warning odor into the gas after delivery by the Company."

On December 7, 1957, a gas explosion occurred in the City within the block in which Berry's drugstore was located. Three persons, among others, were killed in the explosion. The widows of two, and the mother of one, of them brought separate actions for alleged wrongful death. Mrs. Couch and Mrs. Broom sued William L. Berry, the owner and operator of the drugstore, the City of Villa Rica, the local gas distributor, and Southern Natural Gas Company. Mrs. Dyer sued only Berry and Southern Natural Gas Company.

While the gravamen of the original complaints was that the presence of escaping gas was known to all of the defendants and they were negligent in not taking precautions to provide against an explosion, each complaint, as amended, added generally that the explosion was of natural gas which was insufficiently and, therefore, negligently odorized when distributed to Berry by Villa Rica, the owner and operator of the municipal gas distribution system, and, for want of proper warning, the danger from the leaking gas was not discovered in time to prevent the explosion and deaths.

The charges of negligence against Villa Rica included improper design, construction, and maintenance of its gas system; failure to locate the gas leak; failure to shut off the gas supply after notice of the leak; failure to warn the deceased persons, etc. Defendant Berry was alleged to have been negligent in failing to shut off the gas after the leak was discovered, failure to ventilate, failure to warn the deceased persons, etc. Many charges were made against Southern Natural, but there was evidence offered on only one, that of its failure to odorize the natural gas before it sold it to Villa Rica, and its consequent liability for Villa Rica's failure to do so.

For convenience the three cases were tried together and appealed upon one record. The verdict in each case was for defendant Berry and in favor of the plaintiffs against Villa Rica and Southern Natural Gas Company in the Couch and Broom cases and against Southern Natural in the Dyer case.

Judgments having been entered on the verdicts and the cases having been consolidated for appeal, both defendants are here insisting: (1) that verdicts should have been directed in their favor and the judgments must, therefore, be reversed and rendered; and (2) that, if not, procedural errors were committed on the trial and the judgments must be reversed and the causes remanded for trial anew.

In respect of the fact issue common to both appellants, whether there was evidence sufficient to support the claim that the gas was not sufficiently and, therefore, was negligently odorized, both vigorously insist that the evidence wholly failed to establish this fact, indeed, showing that the presence of escaping gas was known, established quite the contrary.

This issue aside, however, each stands upon and presents its individual defenses. Because this is so and because we are of the opinion that verdicts as to Southern should have been directed and that, as to it, the judgments must be reversed and here rendered, while as to Villa Rica, they must be affirmed, we shall, in setting down our reasons for these views, state them separately as to each appellant.

While, because of the trial of the three cases together and the personal opinion nature of a large part of the evidence as to whether particular individuals did or did not smell gas before the explosion, the witnesses are many and the question and answer record is voluminous, the substance of the evidence as material to the appeals may be put in reasonable compass.¹

The Case as to Southern Natural Gas Company

Appellant, Southern Natural, is here urging upon us that, under the undisputed facts, it was under no duty to odorize the gas and, therefore, was not responsible for the negligence, if any, of the City of Villa Rica, or any other person, in respect thereto and a verdict should have been directed for it.

While it is settled law that because of the dangers from the escape of natural gas and the fact that in its natural state it has no betraying odor, odorization before being distributed to consumers is proper, indeed necessary, it is equally settled law that Southern having sold, and Villa Rica having purchased, the gas with knowledge on the part of both that Villa Rica should and would odorize the gas, and, under the undisputed evidence it had made provision to do so, Southern was under no duty to odorize it and was not responsible for the explosion and the damages caused by it. So broad and comprehensive are the underlying propositions which support this view and so numerous are the authorities which sustain it, that appellees, in pressing their claim, that under the facts of this case Southern owed a non-delegable duty, to the private consumers to whom Villa Rica supplied it, to odorize the gas, and that it could not rid itself of that duty, though it knew that the City of Villa Rica was conscious of its obligation to odorize the gas before distribution and had made provisions for doing so, find themselves hard pressed, indeed unable, to present a single sound reason or marshal a single apposite authority which supports their view.

Citing textbooks and cases dealing with agreements by an agent or contractor to discharge for his employer duties incumbent upon the employer, they seek in vain to analogize Southern's position as seller to Villa Rica to that of the employer in those cases. Basing their argument on the premise that it is the same and drawing the conclusion, impermissible under the applicable facts and law, that Southern had a non-delegable duty in this case to Villa Rica's customers as to whom, under the undisputed evidence in this case it had a right to and did assume that its vendee would exercise proper care in discharging its duty, appellees rely vainly, we think, on the Georgia case of Community Gas Co. v. Williams, 87 Ga.App. 68, 73 S.E.2d 119, Georgia Code, § 105-502, subd. (2),² and equally vainly on Winkler v. Macon Gas Co., 361 Mo. 1017, 238 S.W.2d 386; Parkinson v. California Co., 9 Cir., 233 F.2d 432, 436, and Hulke v. International Mfg. Co., 14 Ill.App.2d 5, 142 N.E.2d 717.

Meeting all of appellees' contentions head on, including the contention that there is adequate proof that the gas was not odorized, Southern argues that, since there was positive evidence that the gas was odorized and none that it was not, and the only reliance of appellees to support their position that it was not is on the opinion testimony of some of the witnesses that they did not smell gas, the case is one of an attempt by negative evidence to overcome positive evidence, and in Georgia this cannot be done. In support it cites: Georgia Code, § 38-111, which provides:

"The existence of a fact testified to by one positive witness is to be believed, rather than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having existed."

Hambright v. Western, 112 Ga. 36, 37 S. E. 99; and Myers v. Phillips, 197 Ga. 536, 29 S.E.2d 700. Cf. Winkler v. Macon Gas Co., 361 Mo. 1017, 238 S.W.2d 386, at pages 388-389.

Arguing in further support of this contention, that when the evidence taken as a whole is considered in the light of the undisputed evidence of Dr. Goodgain, that if the leaking gas was not in the atmosphere of the drugstore but was underneath its floor or under the floor of the shop next door and was properly odorized it could not have been smelled until it came into the store and into contact with the nostrils of the witnesses, it insists that the finding of the jury, if it did so find that the gas was not odorized, was without evidence to support it and was based only on surmise and suspicion.

On the applicable law, Southern invokes the established principles: that, even though it is known that gas is dangerous, it may be presumed, in the absence of knowledge to the contrary, that it will be safely confined and...