Humphreys v. Central Ky. Natural Gas Co.

• Decision Date: 30 November 1920
• Citation: Humphreys v. Central Ky. Natural Gas Co., 190 Ky. 733, 229 S.W. 117 (Ky. Ct. App. 1920)
• Parties: Humphreys v. Central Kentucky Natural Gas Company.
• Court: Kentucky Court of Appeals

190 Ky. 733

Humphreys v. Central Kentucky Natural Gas Company.

Court of Appeals of Kentucky.

Decided November 30, 1920.

Appeal from Montgomery Circuit Court.

R. A. CHILES and JOHN G. WINN for appellant.

W. B. WHITE and HAZELRIGG & HAZELRIGG for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE CARROLL — Reversing.

In 1904, the city of Mount Sterling enacted an ordinance providing for the sale of a natural gas franchise permitting the purchaser to "construct, maintain and operate in the city of Mount Sterling, Ky., and over and along and under the streets and public ways thereof a gas plant for the purpose of providing the said city and its inhabitants, customers and consumers with natural gas to be used for the purpose of giving heat, power, light and fuel to said city, its inhabitants, customers and consumers, at such prices as may be hereafter agreed upon by such customers, consumers, city and its inhabitants." . . . "And the owner of such franchise, right and privilege shall have the right to dig ditches to lay their pipes and mains in the streets of said city, erect all necessary appliances and machinery for the purpose of operating said plant."

Pursuant to this ordinance the franchise was sold to C. C. Chenalt, the predecessor in title of the appellee, the Central Kentucky Natural Gas Company. The franchise contract between the city and Chenalt provided, "that there is let and granted and this ordinance does hereby let and grant to the purchaser of the natural gas franchise herein before referred to, the right, privilege and permission to construct, lay, operate, and maintain through and in the streets, avenues, alleys and public places of the city of Mt. Sterling, Ky., a system of pipes for the conveyance, distribution and sale of natural gas for heating, fuel and manufacturing power purposes for the full term of twenty (20) years from the time this ordinance shall take effect." . . . "Said purchaser of this franchise shall not charge during the life of this ordinance a maximum rate to exceed forty (40) cents per one thousand (1000) cubic feet of gas and said purchaser shall allow a discount of ten (10) per cent. on all gas furnished to the city buildings, public schools, parochial schools, the city hospitals, public libraries and churches from the net rate charged the consumers of gas in said city, using it for heating buildings in similar manner."

It will be observed that this franchise contract does no more than grant to the purchaser the privilege of constructing and maintaining in the city a system of pipes and other appliances for the conveyance and distribution of natural gas to the people of the city and fix a maximum rate that may be charged for the service. It does not prescribe the quantity of gas or the amount of pressure that shall be furnished or fix any liability for a failure, arising from any cause, to furnish the quantity or pressure that may be needed by any consumer or class of consumers.

In short the franchise contract with the city did not by its terms impose any duty on the company in consideration of the privilege granted or oblige it to furnish gas in any quantity to any person.

Shortly after the contract was made, the gas company laid its pipes and mains in the city and commenced to supply the people of the city with gas and was so engaged in 1914-1918. During these years the appellant, Humphreys, was a florist in Mt. Sterling, and kept a large stock of growing plants and cut flowers for sale; the buildings used in the conduct of his business were equipped to be heated by burning natural gas and he was a regular customer of the company receiving natural gas from its pipes for the purpose of heating his green house and appurtenant buildings and paying for it the price charged, and except for the time hereinafter mentioned it did supply him with all the gas needed.

In this suit to recover damages for the loss of plants caused by the failure of the company to furnish an adequate quantity of gas and pressure he alleged that it was necessary to protect his plants in cold weather that there should always be maintained in his buildings a temperature not lower than thirty-six degrees F.; that on or about December 10, 1917, and for the space of ten days the company failed to supply gas either in quantity or pressure that would furnish a temperature as high as thirty-six degrees or any temperature above twenty degrees although he used all the gas that was supplied to him; that he kept his heaters and other apparatus in good order and exercised care and diligence to prevent his plants from being injured by the cold on account of the failure of the gas supply but was unable to do so or to procure other means of heating his buildings, and as a result of the failure of the needed gas supply his plants and flowers of the value of $710.00 were frozen and rendered worthless.

He further averred that his buildings were so constructed and so equipped with heating apparatus that the required temperature during this period and at all times could have been maintained if the company had furnished the requisite supply of gas.

He further alleged that the nature of his business and the necessity of maintaining a temperature of 36 degrees was known to the company when it accepted him as a customer and at all times thereafter; that he relied on the company to furnish the requisite heat and it had been doing so until the time mentioned, when it failed to do so, and he was unable to procure any other means of heating his buildings; that with knowledge of the quantity of gas and pressure needed and the condition and character of his building it made connection with said buildings and the pipes and apparatus therein contained and between them and its main pipes and began and undertook to furnish him sufficient gas and sufficient pressure to maintain such temperature and it therefore became and continued to be its duty so to do; that it failed and refused to comply with its undertaking and wrongfully, unlawfully, carelessly and negligently failed to perform its duty of furnishing the requisite quantity of gas; that the only reason why the temperature fell below 36 degrees was on account of the negligent and careless failure of the company to furnish the necessary gas at proper pressure.

To the petition as amended a general demurrer was sustained and Humphreys appeals.

The franchise contract between the city and the gas company did not, as we have said, oblige the gas company to furnish Humphreys or any person any specified quantity of gas or such quantity as would maintain any degree of temperature. It is also admitted that Humphreys did not have any contract with the company by which it undertook to furnish him any quantity of gas or to maintain any specified temperature or any temperature. Therefore Humphreys, having no special contract, was not able to find in the franchise contract any express condition or provision on which to base his cause of action.

It is, however, insisted in his behalf that when the company obtained the privilege of supplying the city and its inhabitants, including himself, with natural gas for heating purposes and began to do this under its franchise contract it thereby assumed an implied and enforceable obligation to furnish him the necessary quantity of gas to maintain such temperature as would protect his plants from freezing, in view of the fact, as alleged, that it knew the degree of heat that would be necessary to protect his plants and that he was depending entirely on the heat that could be supplied by the burning gas.

On the other hand, it is contended by counsel for the gas company that its liability in cases like this rests entirely on express contract, and there being no contract requiring it to furnish any specified quantity of gas or pressure or to maintain any specified degree of heat in any building it can not be made liable if it fails to do so. It is further contended that even if it could be held liable on the implied contract asserted, its liability in such a state of case could only arise after notice to it that Humphreys was not receiving the required quantity or pressure of gas, and the failure to aver the giving of such notice was fatal to the petition.

Coming now to consider these respective contentions our opinion is that if there had been an express contract between the city and the company specifying the quantity and pressure of gas that should be furnished to the people of the city, or such a contract between the company and Humphreys the rights and liabilities of the parties would be controlled by the terms and conditions of the contract, and if the company had failed to fulfill the terms of the contract and in consequence thereof Humphreys had suffered the damages complained of, there could be no doubt of his right to recover under the authority of Paducah Lumber Co. v. Paducah Supply Co., 89 Ky. 340; Graves v. Logan, 112 Ky. 775; Lexington...