H. B. Agsten & Sons, Inc. v. United Fuel Gas Co.
| Decision Date | 26 May 1936 |
| Docket Number | 8301. |
| Citation | 186 S.E. 126,117 W.Va. 515 |
| Parties | H. B. AGSTEN & SONS, Inc., v. UNITED FUEL GAS CO. |
| Court | West Virginia Supreme Court |
Submitted May 5, 1936.
Syllabus by the Court.
1. In order to sustain a recovery against a utility company engaged in the distribution of natural gas for damages caused by the explosion of natural gas upon the premises of one of its consumers, there must be evidence sufficient to sustain a finding by the jury that the escape of the gas which caused the explosion was due to some negligent act of the defendant or that it escaped from some instrumentality entirely within the control of the defendant.
2. Evidence that after an explosion of natural gas the utility replaced a service line of black steel pipe with a service line of galvanized pipe is not admissible as tending to establish the negligence of the utility in the installation of the service line.
3. Neither is such evidence admissible as tending to establish a practical construction of the rules and regulations established by the utility and approved by the public service commission which are made a part of the consumer's contract, where, under any construction of such rules and regulations, the utility had the right to make such repairs.
4. "Unless circumstances justifying a departure from it are shown, the rule for determining the amount of damages for injury to personal property is to subtract the fair market value of the property immediately after the injury from the fair market value thereof immediately before the injury, the remainder, plus necessary reasonable expenses incurred, being the damages." Biederman, Inc., v. Henderson, 115 W.Va. 374, 176 S.E. 433, Pt. 3, Syl.
Error to Circuit Court, Kanawha County.
Trespass on the case by H. B. Agsten & Sons, Incorporated, against the United Fuel Gas Company. Verdict and judgment for plaintiff and defendant brings error.
Reversed and remanded.
Harold A. Ritz, R. K. Talbott, and B. J. Pettigrew, all of Charleston, for plaintiff in error.
Steptoe & Johnson, Stanley C. Morris, W. Ervin Miller, and Robert W. Lawson, Jr., all of Charleston, for defendant in error.
This action of trespass on the case was brought in the court of common pleas of Kanawha county by H. B. Agsten & Sons, Inc. against United Fuel Gas Company for the purpose of recovering damages resulting from an explosion that wrecked an office building occupied by the plaintiff and situated upon the south side of Washington street between Court street and Truslow street in Charleston. To a verdict and judgment of $2,000 for the plaintiff, defendant prosecutes this writ of error.
The building was a small one-story office building standing upon a triangular shaped lot at the point where Shirley street runs diagonally into the south side of Washington street. That part of Washington street upon which the building fronted was opened by the city of Charleston in 1923. The roadway is forty feet wide and on each side there is a ten-foot sidewalk. At the point where the building stood, it was necessary to do a good deal of filling in order to establish the grade of the street, and after the necessary fill was made, the water and gas utilities were required to lay their mains before the street paving was placed. The United Fuel Gas Company laid an eight-inch cast-iron main with welded joints parallel to and four feet nine inches from the south curb of Washington street. The street had been graded some two or three feet beyond the curb on each side on the south leaving the place intended for a sidewalk and the lot abutting thereon considerably below the level of the street. This was later filled in to the street level. When the defendant laid its main, it made service connections to the property line for each lot as its frontage was reached.
On the morning of December 20, 1934, at about 2 a. m., an explosion demolished the Agsten building and practically destroyed its contents. The plaintiff sought recovery on the ground that the explosion was caused by natural gas which leaked into the building from a rotted and corroded service line between the property line and the curb, the gas having been ignited because of the fact that one of the stoves in the building, which was left burning the night before, was burning at the time of the explosion. The alleged negligence of the defendant consisted in, first, improper installation of the service line from the curb to the property line in the year 1924; and, second, in not properly maintaining the same line. The plaintiff's theory is that there is proof sufficient to justify a finding by the jury that this service line, installed by the defendant, was covered by it with material consisting largely of coal cinders which are known to have a corrosive and deteriorating effect upon black steel pipe such as the service line was, and to sustain recovery upon either the theory of negligence in the original installation or of negligence in the maintenance. The plaintiff's position is that in either case, the wrongful act of the defendant respecting the service pipe caused it to eat away and become full of holes, resulting in the leakage of gas into the building and causing the explosion.
The trial resulted in a verdict and judgment for the plaintiff in the sum of $2,000. Application was made to the circuit court of Kanawha county for a writ of error, which was declined on the ground that the judgment of the trial court was plainly right, and from the judgment of the circuit court, this writ of error is prosecuted.
The first assignment of error sets up the contention that under the rules and regulations of the defendant company, approved by the public service commission and made a part of the written application for gas service signed by the plaintiff and filed with the defendant, it is made the duty of the consumer to keep the line in good repair from the street connection stopcock to the place of consumption, and that the regulations expressly place upon the consumer the responsibility of detecting leaks and defects therein. The plaintiff meets the contention thus advanced by the defendant by pointing out that in another rule approved by the public service commission, it is provided that the gas company shall not be liable for any injury to person or property from any cause arising inside the street connection stopcock which is not the result of negligence of the gas company. Plaintiff argues that in the light of this provision, the other provisions, to the effect that the plaintiff shall have the responsibility of maintaining the service line from the stopcock and curb box and for the detection of leaks and defects therein, are of no avail, and furthermore, that to give the latter provisions the effect defendant contends for would result in exempting the gas company from its own negligence, a conclusion shocking to good conscience and against public policy. A number of cases are cited to sustain the proposition advanced, but we do not believe that it is necessary to discuss them for the reason we think they have no application to this case. It is readily admitted that the company could not exempt itself from all negligence by simply prescribing a rule, even with the approval of the public service commission. But that is not the effect of the rules in question. In the first place, it is provided that the company shall install all of the connection from its main to the property line, that this connection shall remain the property of the company, and that all repairs made to it shall be at the expense of the gas company. The responsibility for detecting defects and leaks in the service line (i. e., the line from the curb box to the property line) and in the line upon the consumer's premises is placed upon the consumer, as is the duty of keeping the service line and the lines upon his premises in good repair. But it is provided that the consumer cannot change nor interfere with the service line without the consent in writing of the utility. It will thus be seen that under the rules both the utility and the consumer have certain obligations to perform with respect to the service line from the curb box to the property line. We believe there is no essential conflict in this situation. The rules clearly have the effect to exempt the utility, after proper installation, from the duty of inspecting the service line between the curb box and the the property line. This duty is placed upon the consumer. The consumer is required to keep the service line in good repair, but he is prohibited from changing it or interfering with it without the consent of the utility. The utility is obligated to pay the cost of repairs, and it has the right to enter upon the consumer's premises to shut off the gas and remove its own property for the purpose of making repairs. The practical application of these regulations doubtless would be that the consumer is obliged to inspect the service line for the purpose of detecting leakage resulting from any cause other than negligent installation by the company, and upon discovering it to notify the utility, which thereupon would be obliged to consent to the making of the required repairs at its own expense, and, upon its failure to do so, would be guilty of negligence. Either this, or the utility would have the right to make the repairs if it saw fit. In any event, it is the plain import of these rules that the consumer should be obligated to make the necessary inspection of the service line for the purpose of keeping it in proper repair and guarding it against leakage resulting from ordinary wear. We cannot regard this as being burdensome, unreasonable, or arbitrary. The consumer is, of course, in daily contact with his gas furnishing and...
To continue reading
Request your trial