Loos v. Mountain Fuel Supply Co

• Citation: 99 Utah 496,108 P.2d 254
• Decision Date: 16 December 1940
• Docket Number: 6211
• Court: Supreme Court of Utah
• Parties: LOOS v. MOUNTAIN FUEL SUPPLY CO et al

108 P.2d 254

99 Utah 496

LOOS v. MOUNTAIN FUEL SUPPLY CO et al

No. 6211

Supreme Court of Utah

December 16, 1940

Appeal from District Court, Second District, Salt Lake County; P. C Evans, Judge.

Action by Alice Loos against the Mountain Fuel Supply Company and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded with instructions.

Ingebretsen Ray, Rawlins & Christensen, Joseph S. Jones, Badger, Rich &amp Rich, and W. H. Folland, all of Salt Lake City, for appellants.

L. B. Wight, of Salt Lake City, for respondent.

WOLFE, Justice. LARSON, McDONOUGH, and PRATT, JJ., concur. MOFFAT, Chief Justice, concurring in part, dissenting in part.

OPINION

WOLFE, Justice.

This is an appeal from a judgment based on a verdict in which respondent, plaintiff below, was awarded damages in the amount of $ 12,716, against appellants, defendants below. Respondent's injuries and claimed damages arose out of an explosion which occurred beneath a certain cabin of the Utah Motor Park which cabin was at that time rented and occupied by respondent and her husband. Respondent alleged that the explosion was caused by the ignition of gas with which the cabin was equipped for heating and cooking

In her complaint respondent alleged that appellants were negligent in that they excavated the hole in which the gas furnace was installed in such a manner that the walls of the cabin later settled and rested on the gas pipes feading to the gas furnace causing them to break and leak. We find no evidence in the record to support such allegation. Respondent alleged but failed to prove that appellants neglected properly to ventilate the area beneath the cabin floor. Respondent also alleged that appellants negligently failed to inspect the premises to discover gas leaks and negligently continued to furnish gas after they knew or should have known that leaks existed. No evidence was introduced to show negligence in this regard. Certain witnesses testified that on other days they smelled gas near respondent's cabin and there is a conflict as to whether or not the Motor Park was notified of said gas odors. But respondent testified that she smelled no gas in her cabin and an employee of the Motor Park testified that she was in the cabin shortly before the explosion but smelled no gas. From the evidence it does not appear that the Motor Park Company or the Gas Company had actual notice of any gas leaks under or near respondent's cabin.

The lower court erred in failing to direct a verdict in favor of appellant Gas Company. The Gas Company sold gas to the Motor Park. It had no dealings with, and was a stranger to, respondent and other tenants of the Motor Park. Its agreement was to deliver gas to the Motor Park at its two meters. (One for all furnaces and one for all ranges). It did not deliver gas to individual tenants. The Gas Company looked to the Motor Park for payment--not to the tenants. Employees of the Gas Company went on the Motor Park's premises only upon invitation. They had no control over the gas pipes and appliances within the Motor Park beyond the gas meters. Although the Gas Company made certain repairs without charge it did so only when requested by the Motor Park. The fact that it made said repairs does not prove that it exercised control over the gas appliances, but rather it emphasizes the fact that the Motor Park and not the Gas Company exercised control because the Gas Company did no more than render courtesy service to the Motor Park when requested. It is true that as a supplier of a dangerous substance a gas company is bound to high degree of care and if after notice of a leak or possible danger, it continues to supply gas under pressure it may be held liable for damage caused by such leak. See cases cited infra. But unless the Gas Company, through its employees, knew of some leak or danger and failed to take steps to prevent an explosion it cannot be charged with negligence. No such knowledge on the part of the Gas Company has been shown. Although certain witnesses testified that a gas odor was noticeable in the Motor Park prior to the explosion there was no showing that employees of the Gas Company detected or should have detected such odor, or even that said employees ever were near the places, where witnesses smelled gas. A supplier of gas which does not install gas pipes or appliances on another's premises, does not own or control them, has no duty to inspect them, and has no actual knowledge of leaks or defects, is not liable for damages resulting from a gas explosion on said premises. Okmulgee Gas Co. v. Kelly, 105 Okla. 189, 232 P. 428; Price v. MacThwaite Oil & Gas Co., 177 Okla. 495 61 P.2d 177; Clare v. Bond County Gas Co., 356 Ill. 241, 190 N.E. 278; Wilson Gas Utilities Corp. v. Baker, 276 Ky. 368, 124 S.W.2d 489; Metz v. Georgia Public Utilities Corp., 52 Ga.App. 771, 184 S.E. 629; H. B. Agsten & Sons, Inc. v. United Fuel Gas Co., 117 W.Va. 515, 186 S.E. 126; Lewis v. Southern California Gas Co., 92 Cal.App. 670, 672, 268 P. 930; Moran Junior College v. Standard Oil Co. of California, 184 Wash. 543, 52 P.2d 342; Kelley v. Public Service Co. of Northern Ill., 300 Ill.App. 354, 21 N.E.2d 43; Holsclaw's Adm'r v. Louisville Gas & Electric Co., 267 Ky. 56, 100 S.W.2d 805; 24 Am. Jur. 686, § 32. See Annotations in 25 A.L.R. 272; 47 A.L.R. 490; 90 A.L.R. 1088.

From what has been said, it would also appear that the trial court should not have submitted to the jury the issue of whether the Motor Park Company had committed the specific acts of negligence alleged in the complaint for the reason that there was no evidence of such negligence. However, at the time the motion for a directed verdict was made respondent urged that the doctrine of res ipsa loquitur applied in this case and that the evidence was such that the court should instruct the jury on that theory.

The doctrine of res ipsa loquitur cannot be invoked against the Gas Company because it did not have any control over the gas facilities where the explosion occurred. Gerdes v. Pacific Gas & Electric Co., Cal. App., 13 P.2d 393; Ingledue v. Davidson, 102 Cal.App. 703, 283 P. 840. It had taken no part in the installation of said appliances and had assumed no liability to keep them in repair. All it did was make minor adjustments when so requested.

Respondent and her husband had occupied a cabin in the Motor Park for one week and had paid in advance their rent for another week. The motor Park as part of the consideration for the weekly rental payment furnished linen for the cabins and gas to operate the cooking stove and furnace. Respondent and other tenants could turn off and on these gas appliances, and to that extent exercised control over them. But the gas furnace itself and certain gas pipes were beneath the floor of the cabin and beyond the reach of tenants. There was testimony that gas leaks beneath other cabins were repaired by workmen summoned by, and at the expense of, the Motor Park -- in no instance by a tenant. It appears, therefore, that the gas furnace and the pipes beneath the cabin were under the exclusive control of appellant Motor Park. Although evidence as to the exact location of the explosion or the exact spot of the gas leak was not available, it was testified that the floor of the cabin was burst upward by the explosion and that the circular sheet metal guard which surrounded the furnace was bent inward. Clearly, the logical inference from such testimony would be that the explosion occurred beneath the cabin and outside the furnace sheath. A further inference is that the explosion was caused by the ignition of gas beneath the cabin which exploding gas was not within and did not come from the furnace or the range, the appliances over which respondent exercised some control, but was in an area and leaked from pipes controlled exclusively by the Motor Park. Appellant Motor Park has protested that no proof has been given that the explosion was caused by gas or that gas leaked from the pipes. But in the absence of any other probable cause for the explosion and with knowledge of the properties and explosive force of gas and the course of the gas pipe lines, the jury, under a pleading alleging facts which would bring the case within the doctrine of res ipsa loquitur, would be justified in concluding that the explosion was caused by gas which had escaped from the gas mains. One who pleads and establishes that an explosion which caused him injury occurred in an area controlled exclusively by another and that he had a right to be in said area may invoke the doctrine of res ipsa loquitur. Paul V. S. L. R. Co., 34 Utah 1, 95 P. 363; Dearden v. S. P., L. A. & S. L. R. Co., 33 Utah 147, 93 P. 271; Angerman Co. v. Edgemon, 76 Utah 394, 290 P. 169, 79 A.L.R. 40; Wright v. Southern Counties Gas Co., 102 Cal.App. 656, 283 P. 823; Van Horn v. Pacific Refining & Roofing Co., 27 Cal.App. 105, 148 P. 951.

Appellant Motor Park cites Jenson v. S. H. Kress &amp Co., 87 Utah 434, 49 P.2d 958, and Quinn v. Utah Gas & Coke Co., 42 Utah 113, 129 P. 362, 43 L.R.A., N.S., 328, in contending that res ipsa loquitur does not apply here. But those cases held that res ipsa loquitur was not available to plaintiff because the things which caused the...