Lynchburg Gas Co v. Sale

• Decision Date: 15 June 1933
• Citation: Lynchburg Gas Co v. Sale, 160 Va. 783, 169 S.E. 577 (1933)
• Parties: LYNCHBURG GAS CO. v. SALE.
• Court: Virginia Supreme Court

169 S.E. 577

LYNCHBURG GAS CO.

v.SALE.

Supreme Court of Appeals of Virginia.

June 15, 1933.

Error to Circuit Court of City of Lynchburg.

Action by notice of motion by James E. Sale, administrator of Tipton G. Sale, against the Lynchburg Gas Company.To review a judgment in favor of plaintiff, defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, and CHINN, JJ.

Barksdale & Abbot and J. Wallace Ould, all of Lynchburg, for plaintiff in error.

B. B. Campbell, of Lynchburg, and Edward Meeks, of Amherst, for defendant in error.

CAMPBELL, Chief Justice.

James E. Sale, as administrator of Tipton G. Sale, brought this action by notice of motion, and recovered a judgment against the Lynchburg Gas Company, a corporation, for the sum of $7,500, as damages for the death of plaintiff's intestate, caused, it is alleged, by the negligence of the defendant.

The defendant is a Virginia corporation engaged in the manufacture, sale, and distribution of gas for domestic purposes in the city of Lynchburg.

The deceased occupied a room in a residence known as 1602 Floyd street, which was owned by O. P. Morris and leased to F. O. Doss and wife, who in turn subleased apart-ments to tenants.Sale, on the night of December 12, 1931, went to his room about 9 o'clock.On the following day he was found lifeless, and gas was issuing from an uncapped pipe which extended into the room.

The record discloses that the house in which Sale was asphyxiated consisted of eight rooms, the entire building being a combination store and dwelling house.Doss and family occupied the first floor; on the second floor two rooms had been rented to W. F. Hamilton and wife.Two other front rooms were occupied by a Mrs. Trent, and Sale occupied a rear room.No gas had been used in the building for several years, and there is no evidence tending to show that Sale knew that gas was to be introduced into the house.

The piping for this house entered the basement from the gas main in the street, through a service pipe which came through the floor in the Doss kitchen and extended up the wall of the kitchen into the Hamilton apartment, thence along the wall of the Hamilton kitchen through the side wall thereof, across a hallway and bathroom and into the room of Sale, extending two or three inches from the wall, and at the time of the death of Sale was uncapped.It is clear from the evidence that the entire piping system from the Doss kitchen was exposed to even a casual view.

Hamilton, on the 11th of December, made application to the company for gas, informing the company that he was installing a stove, and later requested that some one be sent to make the proper installation.An employee of the company suggested to Hamilton that he call a plumber residing in the neighborhood to install the stove.

Pursuant to Hamilton's request for gas, one Gilchrist, the defendant's employee, whose duty it was to install meters, went to the house for the purpose of installing a meter.Hamilton was absent at the time and Mrs. Doss informed Gilchrist that he would have to place the meter upstairs, as she was afraid of gas, on account of her small boy.Gilchrist insisted that the meter be installed in the Doss kitchen, and she finally acquiesced.No examination of the piping was made by Gilchrist, and no inquiry was made as to the present occupants of the house, though he in fact knew that tenants had formerly occupied the upstairs rooms.It is further shown that he found the pipe disconnected in the Doss kitchen, with both ends loose, and that he adjusted the same.

Though denied by Gilchrist, Mrs. Doss testified that, after placing the meter, Gilchrist turned on the gas and left it flowing through the meter.Some time after the installation of the meter, Hamilton secured one Driscoll to install the stove.He, without any examination, turned on the gas.

L C. Wofford, manager of the company testified that sales of stoves were often brought about by the activities of the various plumbers; that there were approximately twenty-eight plumbers, or "so-called plumbers, " in the city; that they were permitted by the company, after the installation of meters, to turn on the gas, upon the supposition that they were competent plumbers; that no specific instructions had ever been given the plumbers in regard to examination of pipes; and that the company relied upon the custom then prevailing in the city in regard to the connection and turning on of gas for consumption.

The record further discloses that the defendant was aware of the existence of uncapped pipes in houses of the type of the Doss house; that stoves were disconnected by "Tom, Dick and...