Doxstater v. Northwest Cities Gas Co.

• Decision Date: 18 December 1944
• Docket Number: 7224
• Citation: 65 Idaho 814,154 P.2d 498
• Parties: N. B. DOXSTATER and LUCILLE DOXSTATER, his wife, Respondents, v. NORTHWEST CITIES GAS COMPANY, a corporation, Appellant
• Court: Idaho Supreme Court

154 P.2d 498

65 Idaho 814

N. B. DOXSTATER and LUCILLE DOXSTATER, his wife, Respondents, v. NORTHWEST CITIES GAS COMPANY, a corporation, Appellant

No. 7224

Supreme Court of Idaho

December 18, 1944

Rehearing Denied January 15, 1945.

1. Limitations of actions

Where prosecution of action timely instituted was barred by injunction made in proceeding for reorganization of defendant, a new action instituted in conformity with order of federal District Court wherein reorganization proceeding was pending was not barred. (I. C. A., secs. 5-219, subd. 4, 5-234; Bankr. Act, sec. 77B, 11 U.S. C. A., sec. 207.)

2. Bankruptcy

Where reorganization proceeding was pending against company which furnished gas which exploded, complaint for personal injury and property damage charging the company with negligence in its individual capacity was not demurrable on ground that complaint on its face showed that if any cause of action existed it would be against the company as trustee and debtor in possession. (Bankr. Act, sec. 77B, 11 U.S. C A., sec. 207.)

3. Bankruptcy

Where federal court in which corporate reorganization proceedings were pending authorized tort action against corporation by claimants who stipulated that, in event of judgment in their favor, recovery would be limited to insurance carried by corporation, order confirming reorganization plan, but providing that no creditors of the debtor should be affected by the plan except as specifically provided therein, did not discharge such tort claim. (Bankr. Act, sec. 77B, 11 U.S. C A., sec. 207.)

4. Evidence

Where defendant claimed that plaintiff's signature to statement was in form of an "X" thereon, made by plaintiff but plaintiff denied that the "X" was made by him one individual signing statement as witness was not produced as witness and other individual witnessing statement testified that she was not sure that plaintiff had placed an "X" on the statement, exclusion of the statement on ground that it had not been properly identified was not error. (I. C. A., secs. 16-405 to 16-407.)

5. Gas

Where issues involved in action based on butane gas explosion were whether accident had occurred, and, if so, what caused it and whether it was due to gas company's negligence, a plaintiff's application for gas service at a place not involved in the explosion and gas company's pamphlet containing its rules covering service, offered to prove that plaintiff knew of the respective duties existing between company and its customers, were properly excluded as not material.

6. Gas

In action for damages caused by explosion of butane gas furnished by defendant, evidence that gas escaped from equipment owned or controlled by defendant was insufficient for jury.

7. Gas

Negligence

In negligence action, burden is on plaintiff to prove, by a preponderance of evidence, negligence of defendant in performance of some duty owing to plaintiff as charged in complaint and that such negligence caused injury to plaintiff in manner charged therein and such rule is applicable in action against gas company for injuries allegedly caused by escaping gas.

8. Gas

In action for damage caused by explosion of butane gas furnished by defendant, plaintiff must prove that defendant gas company failed to exercise proper degree of care to prevent escape of gas or to remedy defect after notice.

9. Gas

A gas company is required to exercise a degree of care to prevent escape of gas from its pipes commensurate to danger which it is its duty to avoid, and if it fails to exercise that degree of care, and injury results therefrom, the company is liable if the person injured, either in person or property, is free from contributory negligence.

10. Gas

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, but such responsibility is limited to time gas is in the distributor'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 distributor who has neglected to remedy the condition.

11. Gas

Where valve on water heater which plaintiff attempted to ignite at time of explosion was defective and defect was known to plaintiff to exist for some time prior to and at time of explosion, but heater was not under control of company furnishing the butane gas, and plaintiff had made no report to the company and had not asked it to make any repairs, the gas company was not chargeable with the defective condition of the water heater.

12. Trial

Defendant's motion for nonsuit admitted truth of plaintiff's evidence and every inference or fact which might legitimately be drawn therefrom.

13. Gas

Where butane gas, without an odorant, was not perceptible by smell, whether gas had been sufficiently odorized by gas company was for jury in action for damage caused by explosion of escaping gas.

14. Gas

Where butane gas, without an odorant, was not perceptible by smell, company furnishing gas had duty to supply an odorant. (I. C. A., sec. 59-302.)

15. Gas

Where plaintiffs were not customers of gas company at time gas company changed from water gas which had a strong odor to butane gas which, without an odorant, was not perceptible by smell, the gas company was not chargeable with negligence in not giving notice to plaintiffs of the change.

16. Gas

Instruction that if failure of gas company to notify plaintiffs or owner of property of change by company in character of gas supplied to its customers, caused plaintiffs to fail to detect gas and that such conduct of gas company was proximate cause of explosion, the company was liable for damages, was erroneous, where evidence did not disclose that plaintiffs were customers of the gas company at time of the change.

17. Gas

Where gas company furnishing butane gas at time of explosion had not installed water heater, instruction which permitted jury to base its verdict against gas company on negligent installation of water heater was erroneous.

Rehearing Denied January 15, 1945.

Appeal from the District Court of the Tenth Judicial District of the State of Idaho, in and for the County of Nez Perce. Hon. A. L. Morgan, Presiding Judge.

Reversed and remanded for new trial.

Cox, Ware & Stellmon for appellant.

There is no presumption of negligence on the part of the gas company from the mere fact that a person was injured by a gas explosion, since a gas company is not an insurer against accident from escaping gas and the doctrine of res ipsa loquitur is not applicable. (Applegate v. Portland Gas & Coke Co., (Ore. 1933), 18 P.2d 211; Greed v. Mfg. Light & Heat Co. (Penn. 1913), 86 A. 95; Fleeger v. Consumers Po. Co., (Mich. 1933), 247 N.W. 741; Ingledue v. Davidson, et al, (Cal. App. 1929), 283 P. 840.)

The plaintiff has the burden of proving the specific negligent act or omission of the defendant that was the proximate cause of his injury and the existence of such negligence cannot be left to conjecture. (Raftery v. Kansas City Gas Co., (Mo. 1932), 169 S.W.2d 105 at 111; Hunt v. Armour & Co., (Mo. 1939), 136 S.W.2d 512; Brown v. St. Louis Co. Gas Co., (Mo. 1939), 131 S.W.2d 354.)

When a fact is established by scientific evidence, as for instance, that chemical substance is odoriferous because sufficient chemical odorant has been added to make it so, the testimony of the lay witnesses that they did not smell the substance does not create a conflict in the evidence. (Albrithsen v. Wood River Canal Co., (1924), 40 Ida. 49 at 56.)

A supplier of gas, which does not install gas pipes or appliances on another's premises, does not own or control them, has no duty to inspect them, and has no actual knowledge of leaks or defects, is not liable for damages resulting from gas explosion on said premises. (Stephany v. Equit. Gas Co., (Penn. 1943), 31 A.2d 523; Loos v. Mountain Fuel Supply Co., (Utah 1940), 108 P.2d 254, and many cases cited at page 257 therein.)

A person supplying gas is not responsible for the condition of the conductors or pipes on the premises of consumers which such person does not own or control. (Ray v. Pac. Gas & Elec. Co., (Cal. App. 1935), 39 P.2d 812 at 816, and cases cited at page 816 therein; 138 A. L. R. at page 883.)

And the same rule applies to the customer's own appliances provided by him for the consumption of the commodity supplied. (Ray v. Pac. Gas & Elec. Co., supra at 816; Hill v. Pac. Gas & Elec. Co., (Cal. App. 1913), 136 P. 492.)

The rule requiring a high degree of care, etc., on the part of a gas distributing company, is limited to the time that the gas is contained in the gas company's own pipes or containers, unless it has negligently allowed it to escape, or having escaped, has created a dangerous hazard known or which should be known to it, and it has neglected to remedy the condition. (Ray v. Pac. Gas & Elec. Co., supra; Lewis v. So. Cal. Gas Co., (Cal. App. 1928), 268 P. 930; Ingledue v. Davidson, (Cal. App. 1929), 283 P. 840; Hill v. Pac. Gas & Elec. Co., (Cal. App. 1913), 136 P. 492.)

John L. Phillips and J. H. Felton for respondents.

A utility corporation handling a dangerous instrumentality or substance is held to the highest degree of care practicable to avoid injury to its patrons and the public. (Younie v. Blackfoot Light and Power Co., 15 Ida. 56, 96 P. 193; Gagnon v. St. Maries, etc., Co., 26 Ida. 87, 141 P. 88; Staab v. Rocky Mountain, etc., Co., 23 Ida. 314, 129 P. 1078; Ellis v. City of Weiser , 12 Ida. 544, 86 P. 451; Hagan & Cushing Company v. The Washington Water Power Co., 99 F.2d 614.)

When no odor is detected prior to the explosion of gas, the verdict of the jury finding that the utility was negligent in not properly...