Miss. Public Service Co. v. Bassett

• Decision Date: 21 November 1938
• Docket Number: 33405
• Citation: 184 So. 419,184 Miss. 6
• Court: Mississippi Supreme Court
• Parties: Mississippi Public Service Co. v. Bassett

184 So. 419

184 Miss. 6

Mississippi Public Service Co. v. Bassett

No. 33405

Supreme Court of Mississippi

November 21, 1938

(Division B.)

1. GAS.

In action by building owner and contractor against gas company and person installing gas heating furnace for damage to building because of gas explosion evidence held not to warrant submission to jury of question as to latter defendant's negligence.

2. GAS.

A building contractor, failing to inform gas company, building owner or person installing gas furnace that gas pipe installed by contractor beneath kitchen floor was uncapped though he knew it had not been inspected, as required by city ordinances, and that gas was being made available for use of owner, who was preparing to move into building, was guilty of gross negligence barring his recovery of damages caused by gas explosion from such company and person because of their failure to find such pipe before turning on gas.

3. GAS.

Whether gas company's action in installing meter and making gas available through piping installed inside building by construction contractor was a proximate or contributing cause of gas explosion when considered with contractor's negligence in failing to inform such company, building owner or person installing gas furnace that pipe under kitchen floor was uncapped, held possible question for jury, so as to require reversal of judgment against company for resulting damages and remand of case for retrial as between owner and company on issue of latter's negligence.

HON JOHN C. STENNIS, Judge.

Action by J. J. Bassett and J. B. Cunningham against the Mississippi Public Service Company and A. W. Dill for damages caused by a gas explosion to a building erected by plaintiff Bassett for plaintiff Cunningham. Judgment for plaintiffs, and defendants appeal. Reversed, judgment rendered for defendant company as against plaintiff Bassett and for defendant Dill as against both plaintiff, and cause remanded for retrial as to defendant company and plaintiff Cunningham.

John F. Frierson, of Columbus, for appellant, A. W. Dill.

We respectfully submit that on the declaration and proof there was no negligence whatever on the part of Dill and that the motion at the conclusion of the testimony for a peremptory instruction should have been given for him.

Vaughan v. Haiderman, 33 Pa. 522, 75 Am. Dec. 622; Jarechi v. Philharmonic Soc., 79 Pa. 403, 21 Am. Rep. 78.

There is a clear distinction between gas fittings and gas fixtures; the former term including all the piping down to the points of opening, where chandeliers, brackets, etc., used for lighting, are designed to be attached, and the latter only covering these attachments.

National Bank v. North, 28 A. 694, 160 Pa. 303.

If there is an injury to a joint interest or a joint interest in the damages recoverable several plaintiffs may sue jointly; but causes of action for injuries to their several rights, whether resulting from the same tort or from different torts, cannot be joined.

1 C. J., sec. 1279; 1 Am. Juris., sec. 71; Tribette v. I. C. R. R. Co., 18 L. R. A. 660.

In reference to the misjoinder of parties and causes of action, we doubt that ever such plaintiffs came into conjunction before in all the history of the cases at law; that ever before did the principal offender join hands with a principal sufferer to claim damages from the one who was an innocent bystander, and a victim of circumstances. The gas company found only one opening, shut off the gas at the cock by the meter and went back and told the manager of the office at Macon of this one opening and of a piece of paper to keep the dust out that was stuck in the opening in the furnace room. The undiscovered opening was solely within the knowledge of the fitter, Bassett, plaintiff. It seems to us by reason of this open pipe, kicked down and covered up that Bassett, the fitter, Cunningham, the owner for whom Bassett was the agent in this instance, and Stevens, the architect, were all negligent. For the reason of Bassett's negligence Instruction No. 3 asked by Dill and refused, should by all means have been given. It went directly to the point of that issue, and said: "The court instructs the jury for the defendant Dill that Bassett was negligent in leaving the open gas line under the house..." and asked that such negligence be taken into consideration by way of reduction of damages, if any negligence should be found against Dill.

28 C. J. 603, sec. 73.

We respectfully submit that this case be overruled and this judgment and verdict be set aside, and, first, that the peremptory instruction asked for sustained and judgment given in this court, or second, that the case be overruled and the declaration dismissed on account of misjoinder, or third, that the case be overruled and remanded to be tried under the proper instructions.

We respectfully submit that Dill was not negligent. It is not necessarily negligence per se to use a match or light to discover the point where gas is escaping. Whether a person is negligent in using an exposed light in searching for a gas leak, depends on whether he has notice the gas was escaping in large quantities.

12 R. C. L. 914; Keith v. Y. & M. V. R. R., 151 So. 916.

Neither Dill nor any of his helpers had any notice whatever of escaping gas. The fact that they had tested the joints with a match or flame was evidence to their mind that there was no escaping gas.

Triplett v. Alabama Power Co., 104 So. 248; 28 C. J. 594; Alabama Power Co. v. Jones, 101 So. 898. R. H. & J. H. Thompson, of Jackson, for appellant, Mississippi Public Service Company.

This court has clearly and definitely, and no doubt finally, planted itself upon the principles laid down in the celebrated Tribette case (70 Miss. 182, 12 So. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642), for, in Newell v. Railroad Company, 106 Miss. 182, Mr. Justice Cook in delivering the opinion of the court said: "The questions involved in this appeal have been recently threshed out in this court, and we have definitely, and we think clearly, established the rule in this state that neither the chancery court, nor any other court, has jurisdiction of this sort of suit. The plaintiffs in the original suits could not have joined their causes of action in one suit, and the defendant cannot accomplish this result by the procedure here adopted, or by any other procedure known to the law. Insurance Co. v. Warren-Gee Co., 60 So. 1010; Railroad Co. v. Walker et al., 60 So. 1014; Newton Oil Co. v. Sessums et al., 59 So. 9; Telegraph Co. v. Williamson et al., 101 Miss. 1, 57 So. 559."

We quote from the opinion of Chief Justice Campbell in the Tribette case where he cites Bliss on Code Pleading: "This author says, in Section 76: 'Two or more owners of mills propelled by water are interested in preventing obstruction above that shall interfere with the down-flow of the water, and may unite to restrain or abate it as a nuisance, but they cannot hence unite in an action for damages; for, as to the injury suffered, there is no community of interest. There is no more a common interest than though a carrier had, at one time, carelessly destroyed property belonging to a different person, or the lives of different passengers:' thus putting the very case we have."

Had Mr. Bassett for a consideration assigned to Mr. Cunningham his claim for damages or had Mr. Cunningham so assigned to Mr. Bassett his claim for damages, there would be presented a situation different from the one shown of record here. Plaintiffs can get no comfort from that provision of Section 505 of the Code of 1930 in the following words: "The assignee of any chose in action may sue for and recover on the same in his own name, if the assignment be in writing." The statute contemplates that there shall be only one assignee, that is to say, one person or entity unto whom the entire legal title had passed by virtue of an outright assignment.

Jones v. Kansas City Co., 75 Miss. 913; Jenkins v. Sherman, 77 Miss. 884; Yazoo Co. v. Wilson, 83 Miss. 224; McGinnis Lbr. Co. v. Rather, 111 Miss. 55; Cottrell v. Smith, 146 Miss. 837; 1 C. J. Sec., page 1272; Gruber v. Baker, 9 L. R. A. 302.

The record will disclose that an unwarranted hardship was thrown upon appellant Mississippi Public Service Company because of the fact it was made a defendant in this suit and required to incur the expense of making defense because the company had nothing whatever to do with the accident, was an innocent bystander, and no act of commission or omission on its part caused or even remotely contributed to the explosion.

It will be borne in mind that the gas company did not know about the pipe leading under the kitchen, having received no notice other than that the house had been piped for gas, and the gas company had the right to assume that the house had been properly piped and that plaintiff Bassett, the general contractor, and defendant Dill, the heating contractor, knew their business and had taken all steps necessary to prevent accidents.

A diligent search of the authorities discloses that the courts of the country are in unison as to the liability of a gas company for damages caused by the leakage and explosion of gas.

A gas company cannot be held liable for the act of a stranger in turning gas into the pipes of a building without its knowledge or request.

Schmeer v. Gas Light Co., 147 N.Y. 529, 30 L. R. A. 653, 42 N.E. 202; 25 A. L. R. 285; Carmody v. Boston Gas Light Co., 162 Mass. 539, 39 N.E. 184; State v. Consolidated Gas Co., 85 Md. 637, 37 A. 263; Smith v. Pawtuckett, 24 R.I. 292, 96 Am. St. Rep. 713, 52 A. 1078; Consolidated Gas Co. v. Connor, 32 L. B. A. (N. S.) 703; Triplette v. Alabama Power Co., 104 So. 248; 28 C. J. 594, sec. 59.

The general...