Louisville Gas Co. v. Kaufman

• Decision Date: 13 December 1898
• Citation: 105 Ky. 131,48 S.W. 434
• Parties: LOUISVILLE GAS CO. v. KAUFMAN et al. [1]
• Court: Kentucky Court of Appeals

48 S.W. 434

105 Ky. 131

LOUISVILLE GAS CO. v. KAUFMAN et al. ^[1]

Court of Appeals of Kentucky.

December 13, 1898

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by Kaufman, Straus & Co. and certain insurance companies against the Louisville Gas Company and the Louisville Electric Light Company and others to recover damages for loss of property by fire. Judgment for plaintiffs, and the Louisville Gas Company appeals. Reversed.

J. W Barr, Jr., Pryor, O'Neal & Pryor, and Humphrey & Davie for appellant, Louisville Gas Company. Wm. Lindsay and Bright & Brandeis, for appellees Kaufman, Straus & Co. Simrall Bodley & Doolan, Knott & Edelen, and Bernard Flexner, for appellee insurance companies.

HAZELRIGG J.

At about 5 o'clock on the evening of October 26, 1891, one of the boilers of the Louisville Electric Light Company exploded, and caused the destruction, by fire, of the wholesale and retail dry-goods and dressmaking establishment of Kaufman, Straus & Co., situated across an alley in the vicinity of the electric plant. While there were other persons in the room adjoining the boiler room, there was only one person immediately at the boiler when the explosion occurred; and that person was the fireman Adams, who was killed by the explosion. Some months after the destruction of the establishment, Kaufman, Straus & Co., having been paid in the meantime the sum of $195,500 on account of some 60-odd policies of insurance held by them, but which they averred did not fully cover the real value of the goods and other losses, brought this action, in law and equity division of the Jefferson circuit court (equity side), to recover in their own right, and in behalf of the insurance companies (some of whom were made co-plaintiffs and others defendants), the aggregate sum of $242,557.72, against the electric light company and the Louisville Gas Company; it being averred that the latter company was the real owner of the former company, and was in fact operating the electric plant at the time of the explosion. The insurance companies which had been made defendants came in by answer, counterclaim, and cross petition, and in effect joined in the suit with the plaintiffs. On the issues joined, by a traverse of the averments of the pleadings, after elaborate preparation by the parties, the chancellor held that the explosion was the result of low water, permitted through the negligence on the part of the gas company, its agents and employés, which company was held to be the real owner and operator of the electric light company. He thereupon rendered judgment against the gas company, and against it alone, for the sum of $231,000, of which about the sum of $219,000 was for the benefit of the insurance companies. The gas company appeals, insisting that, although it had bought all the stock of the electric light company, that company's organization remained intact, and the corporation was in fact still operating the electric plant under its separate board of directors and other officers; and, moreover, upon the state of case shown by the proof, the plaintiffs are not entitled to recover, it not being established that the explosion was caused by negligence; and especially the plaintiffs ought not to recover because their own proof as to the cause of the explosion is contradictory and destructive of itself It also insists that Kaufman, Straus & Co. have already collected largely more than the actual value of their goods, because they returned that value, on oath, to the assessor, at $70,000 only, as of some 30 days before the explosion.

Waiving the question at present as to the ownership of the electric plant, and the responsibility for the explosion on this ground, we shall proceed to consider briefly the facts relied on to show negligence. In the boiler room there were seven boilers, No. 7, the one that exploded, being situated next to the alley on the other side of which the rear end of the storehouse of Kaufman, Straus & Co. was situated. This boiler was connected with its mate, No. 6, by a small pipe extending beneath, which was used as a blow pipe, and which also served to maintain the same water level in the two boilers. They were fed with water, however, by independent feed pumps. It is agreed that the boiler in controversy was outwardly, at least, in good condition and safe, although it had been in use since 1883. The witness Noble (the plaintiffs' witness) proves that the boilers "were inspected about 30 days before that [the explosion], and pronounced first class"; that he considered the boiler that exploded first class; that the electric light company made it a rule to have its boilers inspected regularly, and the reports of the inspectors were to the effect that these two boilers, 6 and 7, were in first-class condition. The proof is clear that, up to the time of the explosion, the conditions were such as usually surround the prudent and careful operation of steam boilers, unless, indeed, the fireman Adams had neglected to keep up the water supply in No. 7; and the plaintiffs' case rests on the affirmation that he had so failed.

We have not failed to read and give due weight to the proof in criticism of the size of the blow pipe, called also the "equalizing pipe," and the occasional defects in the feed pumps. But the fact is shown by the plaintiffs' own testimony that, on the day of the explosion, "the boilers equalized pretty well," and the blow pipe was in good order at 3 o'clock, when the fireman, Adams' predecessor, went off duty; nor was there any difficulty then in feeding the boiler. Noble also testifies: "If a man had come to me ten minutes before I went off watch [some 2 1/2 hours before the explosion], and asked me if I was afraid of the boiler, I would say that I would risk 130 pounds of steam on it. They were running 115 pounds when I went off duty. We were allowed to carry 118 pounds." It is therefore a case of negligence from lowness of water, or no case at all. This is aptly stated by appellees' counsel thus: "If appellees have not shown, as was found by the lower court, that lowness of water in the boiler was the active, efficient cause of the explosion, they have shown none at all." The time fixed by Adams' predecessor when he went off duty is about as near to the explosion as the plaintiffs' witnesses bring us. The testimony of two witnesses for the defendants discloses the fact that, three or four minutes before the explosion, the fireman Adams was at his post of duty, and everything was running smoothly, and that they heard Adams, while in front of the boilers 6 and 7, test his water, and the gauge showed the usual sign of water. But we are at the present considering the testimony of the plaintiffs, and are therefore brought this side the explosion, to examine the testimony upon which is based the claim of low water.

The testimony of two witnesses, and two only, out of a large number introduced by plaintiffs who had the same advantages in examining the wreck as these two had, is to the effect that after the explosion there was a distinct water line across the boiler at the level of the lower one-third of the flue, convincing the witnesses that, at the time of the explosion, the part above the water line had been red hot, and the part below had been protected by the water. This is formidable proof, and seemingly conduces strongly to show the lack of water at the time of the explosion. But the force of it is greatly weakened, if not destroyed, when we find that the other experts and practical boiler men introduced by the plaintiffs, and who made careful examination of these same flues, do not speak at all of the "distinct water line," or of any sign of that character. And several of them testify to facts wholly inconsistent with the existence and presence of such a line. Thus, C. G. Curry says the boiler had the appearance at the time of the explosion of being dry; that there was not a hatful of water in it. This is certainly inconsistent with the theory that the water level was at the lower third of the flue. It is true both McDonald and Curry attribute the explosion to low water. But McDonald only does so because of the "distinct water line"; and, in effect, Curry says there was no such line on the exploded boiler, though he says there was such line on the unexploded boiler. There certainly could have been no such line on the exploded boiler if he is to be believed, nor there could hardly have been such line without the other experts of the plaintiffs seeing it. If we discard, however, the testimony of these two witnesses, as not being supported by the other witnesses of the plaintiffs, and as being in effect contradicted by them, still some of these others express the opinion that low water caused the explosion. When examined carefully, however, the grounds of their belief will be found vague and unsatisfactory. Thus, Noble says: "Generally, lack of water causes an explosion, and pumping cold water into the hot boiler. Nothing else that I know of caused it." Manifestly, he attributes this explosion to low water because he knows of nothing else that caused it. This amounts to little more than a guess at the cause. Again, C. G. Curry says: "I should judge that the boiler had been improperly looked after, and the water allowed to become low or run out altogether. The boiler became very hot, and then water was allowed to suddenly go into the boiler, causing the explosion."

Against these opinions and problematical speculations, the plaintiffs introduce other experts, equally skilled and competent to ascertain the cause of this explosion, and who examined the wreck presumably with equal fidelity and conscientiousness and they frankly declare they are unable to say from their...