Lone Star Gas Co. v. Eckel

• Decision Date: 22 October 1937
• Docket Number: No. 13571.,13571.
• Citation: 110 S.W.2d 936
• Parties: LONE STAR GAS CO. v. ECKEL.
• Court: Texas Court of Appeals

110 S.W.2d 936

LONE STAR GAS CO. v. ECKEL.

No. 13571.

Court of Civil Appeals of Texas. Fort Worth.

October 22, 1937.

Rehearing Denied December 10, 1937.

Appeal from District Court, Tarrant County; Walter L. Morris, Judge.

Action by V. A. Eckel against the Lone Star Gas Company and another. Judgment for plaintiff, and named defendant appeals.

Judgment so far as appealed from reversed and remanded.

Thompson & Barwise and B. V. Thompson, all of Fort Worth, for appellant.

Dawson H. Davis and Homer B. Green, both of Fort Worth, for appellee.

BROWN, Justice.

Appellee brought suit against appellant, Lone Star Gas Company, and one R. E. Weir, who was alleged to be a plumber employed by Fort Worth Independent School District, for personal injuries sustained by appellee in a building owned by such school district, while he was working on the premises as a "PWA" employee; said appellee having been burned by an explosion that occurred in the school building known as an "annex" to the main building.

Appellant had been furnishing natural gas to the school district for use in its main building.

The gist of appellee's case is that while he was so employed on the premises, the school district undertook to extend its gas lines from the main building to the annex; that the piping was defectively done; that gas escaped into the room of the annex, where he was warming himself before a stove in which a wood fire had been made; and that within a few minutes after the fire was lighted, an explosion occurred which burned him severely.

Negligence is alleged on the theory that appellant, with actual knowledge, or with such information as would reasonably put a prudent person on notice, allowed the gas to flow into the extended lines in violation of the city ordinance, which reads as follows: "Section 82. Use of Piping before inspection prohibited. It shall be unlawful for any person, firm or corporation, owning or controlling any building in the City of Fort Worth, in which new gas piping may hereafter be installed, or existing gas piping altered, or any gas fitter or any other person to allow gas to flow through such piping, unless the same has been inspected and tested by the Inspector of Plumbing as hereinbefore provided, and it shall be unlawful for any such person, firm or corporation to fail, refuse or neglect to pay the said Inspector of Plumbing the inspection fees hereinbefore provided for inspecting and testing such gas piping."

It is undisputed that appellant had been furnishing natural gas to the school district for use in the main building, long prior to the occasion out of which this suit grew.

It is likewise undisputed that the extensions being made on the premises were made by the plumbers employed by the school district, without any assistance from or supervision by appellant, and that same were on the property owned and controlled by the school district and that the connections were made to the gas pipes owned by the school district.

There was no evidence tending to establish actual knowledge on the part of the appellant such as would hold it responsible for the conditions complained about, and the violation of any provisions of the city ordinance, on which the suit is predicated.

The only testimony that tends to show any character of notice of the laying of the gas pipes and the connection thereof to the school district pipes, through which appellant was furnishing the school district gas, was that of several witnesses who testified that one of appellant's trucks was seen at the premises shortly before the accident; that the persons accompanying the truck changed a gas meter on the premises; and that one of such persons walked over near the extension pipes that were being laid on the premises.

Appellee contends that these facts raise the necessary issue.

This is said in appellee's brief: "While it is true that no witness in the case testified that they had told the defendant in words about the new installation work in progress at the W. J. Turner School, where this gas line was being extended from the main building to the Annex, there is sufficient evidence of probative force to show that the defendant was in position to know and possessed of such knowledge as would put a reasonable and prudent person on inquiry that the work of installing this gas line and equipment was in progress and that the line had been connected with that of the main building. Appellee contends that the defendant in this instance, had actual knowledge of these facts."

Further on in the brief the following contention is made: "Appellee submits that in order for him to recover in his action it is not necessary for him to prove that appellant had actual information of the fact that the plumbers in charge of the work for the Fort Worth Independent School District, in making the extension of this new line from the main building to the Annex at the W. J. Turner School, would fail or had failed to have the same inspected after completion of the work, by the City Plumbing Inspector of the City of Fort Worth."

The case was tried to a jury on special issues, the substance and findings made being as follows:

(1) That on January 31, 1934 (just a day or so prior to the explosion), the appellant's employees replaced a gas meter through which gas was supplied to the school district's main building.

(2) That in replacing such meter appellant's employees cut off the gas supply.

(3) That appellant's employees, after such replacement, turned on the supply of gas.

(4) That when such employees turned on the gas supply they knew that an extension of the gas line was being installed in the building known as the annex.

(5) Unanswered.

(6) That when the gas was turned on by appellant's employees the extension line to the annex had been connected with the line supplying the main building.

(7) Unanswered.

(8) Unanswered.

(9) That appellant's employees were negligent in turning on the gas supply without first ascertaining that the extension line had not been inspected, tested, and approved by the city's plumbing inspector.

(10) There was a leak in the extension line.

(11) The explosion resulted from such leak.

(12) That the negligence inquired about in issue 9 was a proximate cause of the explosion.

(13) That appellant and its employees had knowledge on January 31, 1934, that gas would be permitted to flow through the pipes in the main school building and the annex.

(14) Unanswered.

(15) That gas was permitted to flow through the pipe line from the main school building to the annex subsequent to the installation and when the pipe line had not been inspected by the city plumbing inspector.

(16) That permitting the gas to so flow was a proximate cause of the explosion.

(17) That some person other than the plaintiff did not throw kerosene, or gasoline, into the stove where the explosion occurred.

(17A) Unanswered.

(18) That defendant Weir and Erwin and Adams failed to install the gas lines and connections to the annex in a proper manner. (Erwin and Adams were Weir's helpers.)

(19) That such failure on the part of Weir et al. was not the sole proximate cause of the explosion.

(20) That the explosion was not caused solely by kerosene or gasoline.

(21) That after the gas line was installed from the main school building to the annex, Weir, or Adams, turned on the gas at the meter, on the north side of the school building.

(22) That such act of Weir, or Adams, was not the sole proximate cause of the explosion.

(23) A verdict for $15,000 was returned.

Judgment was rendered for appellee against Weir and appellant for such sum, and appellee remitted the sum of $50 on the doctor's bill, as found by the jury.

With 62 assignments of error, supported by 38 propositions, confronting us, we feel disposed to discuss only a few, as they will, in our opinion, properly dispose of the appeal.

Our analysis of the city ordinance (copied above), on which this cause is based for a recovery against the appellant, does not permit of the construction that appellee seeks to give it.

This ordinance is aimed at those who own, or control, buildings, in the city of Fort Worth, and gas fitters and other persons, who install the new pipes, or alter pipes then existing and in use.

If this ordinance, in employing the words, "It shall be unlawful for * * * any gas fitter or any other person to allow gas to flow through such piping, unless, etc.," is intended to apply to the company furnishing...