Embrey v. Southern Gas & Elec. Corp.

• Decision Date: 13 February 1953
• Citation: 63 So.2d 258
• Court: Florida Supreme Court
• Parties: EMBREY et al. v. SOUTHERN GAS & ELECTRIC CORP. et al.

Page 258

63 So.2d 258

EMBREY et al. v. SOUTHERN GAS & ELECTRIC CORP. et al.

Supreme Court of Florida, Division A.

Feb. 13, 1953.

Rehearing Denied March 9, 1953.

Thos. W. Butler, Francis C. Millican and Paul M. Souder, Sarasota, for appellants.

Williams, Dart & Bell and Early & Early, Sarasota, for appellees.

SEBRING, Justice.

Laura M. Embrey was injured from an explosion of fuel gas when she attempted to light a gas space heater that had been recently installed in her residence by Southern Gas and Electric Corporation. Subsequently, she died from the injuries she has suffered. Her executor sued E. H. Baker, a dealer in electric appliances, and Southern Gas and Electric Corporation, the corporation that had furnished the gas fuel, to recover damages for their allegedly negligent conduct in creating the condition that brought about the explosion. Later, Sentz and Marshall, two of Baker's employees, were added to the suit as parties defendant.

The negligence alleged to have been committed by Baker was that upon an occasion several months prior to the explosion he, Baker, acting through his employees Sentz and Marshall, had replaced a gas cook stove in the Embrey residence with an electric range; that in making such replacement he had disconnected the cook stove from the gas line, had bent the gas line back up against the wall so that it was hidden from view, and then had departed from the premises without capping the connection. The negligence charged against Sentz and Marshall was their failure to cap the connection when they installed the electric range.

The alleged negligence of the gas company was that when it had installed the gas space heater in the residence, several months after the gas cook stove had been removed from the premises, it had failed to discover the uncapped connection in the kitchen before turning on the gas at the meter.

Being admittedly unable to prove the essential allegations of his complaint by any other method, the executor took the depositions of the gas company's employees who had serviced the gas space heater, and the depositions of Sentz and Marshall, the defendants who had installed the electric range, in an effort to establish what had happeled. When the depositions were taken, the plaintiff questioned the defendant, Sentz, at length concerning the circumstances under which he had taken the electric range to the Embrey residence some weeks prior to the explosion, and what he had done when he got there.

The precise questions and answers which point up the issue raised here on this appeal appear in the depositions as follows:

'Q. When you arrived at the house, did you take the electric stove in right away? A. No * * * about twenty minutes later.

'Q. Why didn't you take in the electric stove at the time you first arrived? A. I went to the house to talk to Miss Embrey, and the gas range wasn't disconnected, so I couldn't take it in at that time. There wasn't room for the electric stove and the gas stove in the kitchen both at the same time.

'Q. When you found the gas stove connected up, what did you do? A. I told Miss Embrey that it was supposed to be disconnected and I didn't have the tools to properly disconnect it.

'Q. You arrived and found the gas stove connected up and upon learning that fact did you disconnect the gas stove? A. Yes. * * *

'Q. At the time you disconnected the gas range, what did you do? Did you do anything to the gas pipe connecting the meter and the gas range? A. no.

'Q. You didn't cap it at all? A. No.

'Q. Did you bend it in any direction? A. Not as far as I can remember. No more than it would have to bend it in disconnecting it and moving it to one side to get the other range in. * * *

'Q. How long did it take you to complete the installation, the whole installation at the Embrey house? A. I would say from an hour to an hour and thirty minutes.

'Q. At the time you left, was the gas pipe uncapped? A. Yes.'

When the plaintiff had completed this directed examination, the following questions were directed to the witness by defense counsel:

'Q. Mr. Sentz, just why did you disconnect that gas stove? A. At Miss Embrey's request. * * * It was supposed to have been disconnected when I delivered the electric range. All I was supposed to do was pick it up. The gas stove was still connected when I arrived and I told Miss Embrey it should have been disconnected, and she asked me if I could disconnect it and I told her I wasn't supposed to and didn't have the proper tools to take care of it, and she insisted that I disconnect it, so I did.

'Q. When she insisted that you disconnect it, did she know that you were unable to cap or plug the gas pipe? A. Yes, I told her that I didn't have a cap for it and she would have to call the power company and have the pipe capped * * * before the gas was turned back on at the meter.

'Q. And after you informed her you were unable to cap the pipe did she still insist you disconnect it? A. Yes. * * * I told her she would have to have the pipe capped before the gas was turned on. In fact, I told her there was a piece of copper pipe fastened on to a piece of galvanized pipe and there was a lot of copper pipe lying in the back, and that it shouldn't be capped but it should be taken loose from the galvanized pipe and capped. * * *

'Q. Did you tell her it should be done immediately? A. Yes, that it should be done immediately.

'Q. Did she indicate whether or not she was going to do so? A. She said she would.'

When the defendant Marshall was placed under oath, he was asked by the plaintiff the following questions, among others:

'Q. Did you see any pipe around there that looked like it might have been the supply pipe for the gas stove? A. You mean running against the wall. There was a pipe there.

'Q. What shape was it in? A. Bent straight up. * * *

'Q. When you left there, in what position was that pipe the last time you saw it? A. The last time I saw it, it was bent up. It was bent straight up between the stove and the bannister that ran along the hot water tank.

'Q. Did you notice the end of that gas pipe, the loose end? A. Yes, sir.

'Q. What condition was it in? A. It was open * * * no connection on it.'

On cross-examination the witness was asked by defense counsel whether he had heard Mr. Sentz and Miss Embrey talking about the installation of the electric range. Upon answering that he had, he was asked the following questions and gave the following answers:

'Q. What did they say about the gas stove? A. She asked him could he disconnect the gas stove for her.

'Q. What did he say to that? A. He said he didn't have the tools and he wasn't supposed to do that.

'Q. And what did she say? A. She kept after him, and asked him questions about the gas stove.

'Q. When you say she kept after him, you mean to do what? A. To do the job of disconnecting the stove.

'Q. Was the stove disconnected for her or Mr. Baker? A. For her.

'Q. At her request? A. Yes, sir.

'Q. State whether or not you heard Mr. Sentz say he was not equipped to do it? A. Yes, sir. That's right.

'Q. Did you hear any conversation as to who was the proper person to disconnect the gas stove? A. He told her the proper person was the gas man or a plumber.

'Q. Just before Mr. Sentz left the house, did you hear any further conversation with this woman? A. Yes, sir. He told her several times to call the gas company right away and have the gas line capped up.

'Q. Did he tell her the gas pipe was uncapped? A. Yes, sir.'

Whitlow, the employee of the gas company who installed and connected the gas space heater in the living room of the Embrey residence several months after the electric range had been placed in the kitchen, was then called by plaintiff's counsel and interrogated at length concerning precisely what had happened during the time he and Hammond had been on the premises installing the space heater. After this direct interrogation he was cross-examined by defense counsel as follows:

'Q. Did either one of these ladies request you to check any other appliances or pipe? A. No, sir.

'Q. Did they make such a request of Mr. Hammond in your presence or where you could hear? A. They told him they didn't have anything else to check, that everything was electric.'

The employee Hammond was likewise examined by plaintiff's counsel and testified on direct examination that he had made no inspection of the premises other than to ask Miss Embrey what other gas appliances she had, and that he had not seen any gas appliances that would require gas fuel, or any gas pipes that would have suggested the need for an inspection. He testified, also, that before leaving the premises he and Whitlow had both checked the line leading from the meter to the space heater and that the tests did not reveal any evidence of gas escaping from an uncapped connection.

On cross-examination by defense counsel the following occurred:

'Q. When you asked the lady whom you understood to be Miss Embrey what else she had, what did she say? A. She said everything was electric.

'Q. Was the reason for asking what they has so that you could check it? A. Yes, that it the customary habit, to ask the people what other appliances they have in the house.

'Q. And when she told you everything else was electric, is that the reason you didn't, go in the kitchen to check? A. Yes, sir.

'Q. You did look in enough to see that there was an electric stove? A. Yes, sir.'

After these depositions had been taken, the defendants filed a motion for the entry of a summary final judgment in their favor upon the ground that as shown by the evidence developed by the depositions no facts existed to establish liability on the part of either of the defendants, and hence that the defendants were entitled to a judgment in their favor as a matter of law. At the hearing on the motion, the...