Grings v. Great Plains Gas Co.

• Decision Date: 31 August 1967
• Docket Number: No. 52427,52427
• Citation: 260 Iowa 1309,152 N.W.2d 540
• Parties: Thomas J. GRINGS and Mildred H. Grings, Appellee, v. GREAT PLAINS GAS COMPANY and Clarence D. Duffe, d/b/a Duffe Oil Company, Appellant. GREAT PLAINS GAS, a division of National Propane Corp., Cross-Petitioner, v. Clarence D. DUFFE, d/b/a Duffe Oil Company, Cross-Defendant.
• Court: Iowa Supreme Court

Page 540

152 N.W.2d 540

260 Iowa 1309

Thomas J. GRINGS and Mildred H. Grings, Appellee, v. GREAT PLAINS GAS COMPANY and Clarence D. Duffe, d/b/a Duffe Oil Company, Appellant.

GREAT PLAINS GAS, a division of National Propane Corp., Cross-Petitioner, v. Clarence D. DUFFE, d/b/a Duffe Oil Company, Cross-Defendant.

No. 52427.

Supreme Court of Iowa.

Aug. 31, 1967.

McCracken & Carlin, Davenport, for appellant.

Tomasek & Vogel, Grinnell, and Frank A. Gillett, Wilton Junction, for appellee.

STUART, Justice.

Plaintiffs' home and most of its contents were destroyed by fire Spetember 18, 1963. They brought action against defendants alleging the fire was caused by their negligent acts. The case was tried to the court. The court dismissed the action against Great Plains Gas Company and awarded plaintiffs judgment against defendant Duffe on both the theory of res ipsa loquitur and specific negligence. Duffe has appealed and will be referred to as defendant.

I. Defendant claims there was insufficient evidence to sustain the court's finding of specific negligence and causation. We review the evidence and the inferences that may be drawn therefrom in the light most favorable to plaintiffs and will affirm if the trial court's findings are supported by substantial evidence. Rule 344(f)(1)(2).

The Grings owned, operated and lived on a farm southwest of Wilton Junction in Muscatine County. The residence was a large two story frame dwelling built in 1915. The kitchen was to the rear or north side of the house. An LP gas stove in the kitchen was served by two regular gas cylinders or tanks located 4 to 6 inches outside the north wall. The stove was against the south wall of the kitchen and a copper tube ran from it under the floor, through a crawl space, through the sill to a regulator on the stand which held the two gas cylinders. An electric refrigerator and deep freeze were located along the north wall in the kitchen opposite the cylinders. Plaintiffs had had no trouble with the stove since it was installed in 1954. There were no other gas appliances in the house.

On the morning of September 18, 1963 plaintiffs left for their son's home about 11:45. There were no unusual incidents with either the gas or electricity.

About 1:00 p.m. while plaintiffs were gone, defendant, an LP gas dealer, delivered a tank of gas to their home. When he arrived he noticed nothing unusual around the residence. He did not smell gas. He shut off the empty cylinder and removed it, using a crescent wrench to loosen the compression nut on the tubing extending from the regulator to the valve on the cylinder. He then attached the full tank in the same manner and turned on the valve.

Defendant customarily tested for leaks by brushing a soapy solution on the connection and watching for bubbles. This is a standard test regarded as a minimum safety requirement. This morning he had spilled the solution and he tested for leaks only by smelling for gas and listening for a leak. He thus determined there was none.

He left plaintiffs' home about 1:15 and everything appeared to be normal at that time. Very shortly thereafter plaintiffs returned home. They could see smoke when they were 3/4 of a mile away. When they reached the back or north side of their home, they saw flames about 4 inches in diameter and 2--2 1/2 feet in height shooting straight up out of the cylinders. The siding directly behind them was on fire in a circular area of about 3 or 4 feet radius extending upward from a point about a foot below the top of the cylinder. There was a second area of flames under the eaves and along the second floor area directly above the tanks. All flames were confined to the sheeting and siding.

In the kitchen there was much smoke but no fire. When the smoke cleared as the deep freeze was being removed, the north wall of the kitchen was normal. There was no evidence of an explosion.

Testimony and pictures show that the center of the fire was in the north wall directly behind the tanks and extending outward and upward into the second floor and roof. The damage was so extensive the house had to be demolished.

The Wilton Junction Fire Chief, an electrician, investigated the cause of the fire and found no electrical defects. In his opinion the fire was caused by a gas leak ignited by a spark from the relay in the refrigerator. His opinion was based on the absence of any other cause.

Roy Staschke, another member of the Wilton Junction Fire Department, is in the refrigeration business. He was familiar with this model refrigerator and testified the relay would arc or produce sparks 9 out of 10 times when it 'cycled'.

A long hypothetical question reciting facts in much greater detail than set out above was propounded to two qualified experts, Ed J. Herron, former state fire marshall and Dr. Lionel K. Arnold, professor of chemical engineering at Iowa State University in Ames, who for many years has been doing consulting work and writing in the area of fires and their causes, with particular emphasis on gases involved in fires and explosions. Both gave an opinion that the fire was caused by gas which leaked from the connection with the newly installed cylinder, seeped into the kitchen and was ignited by a spark from the relay of either the refrigerator or deep freeze. The flame flashed back to the spot of the leak causing the fire which in turn increased the heat to the point where the safety valves popped allowing more gas to escape and ignite. In their opinions the leak was probably caused by an improper tightening of the compression nut. It was either too loose, so tight it cracked or cross threaded.

The trial court found defendant was negligent in three particulars: (1) in failing to properly connect an LP gas cylinder, (2) in failing to properly test the system for leaks after changing cylinders, and (3) in failing to discover the gas leak after installing the new cylinder.

Defendant does not contend there was insufficient evidence to establish the second and third negligent acts. However, there would have been no causal connection between such negligence and the resulting injury if there was no evidence from which the trier of fact could conclude the gas cylinder was so improperly connected by defendant that it permitted gas to escape. Defendant says there is no evidence of any defect in the line and that plaintiffs failed to establish defendant's negligence as the proximate cause.

His brief points and cases relate to limitations on inferences which may be raised by res ipsa loquitur. As res ipsa loquitur may not be invoked in aid of specific charges of negligence, Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 770, 11 A.L.R.2d 1164, any inferences arising therefrom cannot be used to aid plaintiffs' case on specific acts of negligence. The cited cases also stand for the proposition that the instrumentality which caused the injury must be established before a causal connection can be made to the negligent acts. Rauch v. Des Moines Electric Co., 206 Iowa 309, 218 N.W. 340; Rollins v. Avery, Ky., 296 S.W.2d 214; Emigh v. Andrews, 164 Kan. 732, 191 P.2d 901.

There is no direct proof that the tube and compression nut were not properly connected with the value on the cylinder. However, specific negligence and proximate cause may be proved by circumstantial evidence without resorting to res ipsa loquitur in instances where the doctrine might not apply. Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 769, 11 A.L.R.2d 1164; Shinofield v. Curtis, 245 Iowa 1352, 66 N.W.2d 465, 470, 50 A.L.R.2d 964; Mickelson v. Forney, 259 Iowa 91, 143 N.W.2d 390, 393. Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 160 P.2d 270, 275. '* * * (I)n such case the evidence must be such as to make plaintiffs' theory of causation reasonably probable, not merely possible, and more probable than any other theory based on such evidence. It is not necessary that the testimony be so clear as to exclude every other possible theory. (Citing cases)' Shinofield v. Curtis, supra, loc. cit. 66 N.W.2d 468.

We are satisfied the circumstantial evidence here was sufficient to raise a jury question as to causation and defendant's negligence in failing to properly connect the tank to the tube. There were only a very few minutes between the time defendant left until plaintiffs returned home. There was nothing wrong at the residence when defendant left. The tanks and the house were on fire when plaintiffs arrived. The fire was on the outside of the house and was in such position that it obviously started at the cylinders. Plaintiffs had had no trouble with the stove. There was no evidence of explosion or origin of a fire in the kitchen. Inspection eliminated the possibility of an electrical fire. All sources other than a gas leak were effectively negated. The only alteration in the gas system was the installation of the full cylinder. The only part of the system disturbed in such change was the connection to the valve on the tank.

Experts expressed opinions that the failure to make a proper connection was the source of the gas leak. Defendant's own conduct shows his concern over the matter. At first he denied being at the farm and changing cylinders that day. Later on he admitted he had done so. At the same time he contacted his gas supplier and asked for an investigation because of the possibility gas caused the fire.

Defendant makes much of the failure of plaintiffs and plaintiffs' experts to examine the cylinder, tubing and compression nut connection after the fire claiming this would have shown whether the nut was cracked or cross threaded. This is a jury argument which under the facts here is just as damaging to defendant. Within a day or so after the fire he took possession of this equipment and kept it. During trial he offered no evidence as to the condition of the connection in his defense.

The evidence offered here is more than adequate to engender a fact question on...