Mississippi Public Service Co. v. Cunningham

• Decision Date: 22 April 1940
• Docket Number: 33817
• Citation: 195 So. 472,189 Miss. 179
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI PUBLIC SERVICE CO. v. CUNNINGHAM

195 So. 472

189 Miss. 179

MISSISSIPPI PUBLIC SERVICE CO. v. CUNNINGHAM

No. 33817

Supreme Court of Mississippi

April 22, 1940

APPEAL from the circuit court of Noxubee county HON. JOHN C STENNIS, Judge.

Action by J. B. Cunningham against the Mississippi Public Service Company for damage to a building caused by an explosion of gas. From an adverse judgment, defendant appeals. Judgment reversed and judgment entered for defendant.

Reversed and judgment here for appellant.

R. H. &amp J. H. Thompson, of Jackson, for appellant.

Gas companies are not liable for explosions caused by negligence of third persons where the gas company's only connection therewith consists of making gas available to customer on customer's demand.

Schmeer v. Gas Light Co., 147 N.Y. 529, 42. N. E. 202, 30 L. R. A 653; 25 A. L. R. 285; Flint v. Gloucester Gas Light Co. (Mass.), 3 Allen 343; Flint v. Gloucester Gas Light Co. (Mass.), 9 Allen 552; Carmody v. Boston Gas Light Co., 162 Mass. 539, 39 N.E. 184; State v. Cons. Gas Co., 85 Md. 637, 37 A. 263; Smith v. Pawtucket, 24 R. I. 292, 52 A. 1078, 96 A. S. R. 713; Cons. Gas. Co. v. Connor (Md.), 32 L. R. A. (N. S.) 703; Dodge v. Halifax Gas Co., 9 N. S. 325; Triplette v. Ala. Power Co. (Ala.), 104 So. 248; Ala. Power Co. v. Jones, 101 So. 898; 28 C. J. 594, Sec. 59; King v. Cons. Gas Co., 90 A.D. 166, 85 N.Y.Supp. 728.

Where housepiping is installed by independent contractor, not connected with gas company, gas company is not negligent in acting on assumption that housepiping was properly and safely installed, where not charged with notice to the contrary.

Schmeer v. Gas Light Co., 147 N.Y. 529, 42 N.E. 202, 30 L. R. A. 653; 25 A. L. R. 285; Flint v. Gloucester Gas Light Co. (Mass.), 3 Allen 343; Flint v. Gloucester Gas Light Co. (Mass.), 9 Allen 552; Carmody v. Boston Gas Light Co., 162 Mass. 539, 39 N.E. 184; State v. Cons. Gas Co., 85 Md. 637, 37 A. 263; Smith v. Pawtucket, 24 R. I. 292, 52 A. 1078, 96 A. S. R. 713; Cons. Gas Co. v. Connor (Md.), 32 L. R. A. (N. S.), 703; Dodge v. Halifax Gas Co., 9 N. S. 325; Triplette v. Ala. Power Co. (Ala.), 104 So. 248; Ala. Power Co. v. Jones, 101 So. 898, 28 C. J. 594, Sec. 59; King v. Cons. Gas Co., 90 A.D. 166, 85 N.Y.Supp. 728.

Where a gas company does nothing further than install and connect up a meter on the demand of a prospective customer and, because advised housepiping not completed so gas can be admitted into house with safety, securely cuts off gas at the meter and, without its knowledge or consent, a third person, in violation of a town ordinance, opens the meter, thus permitting gas to enter a house, and an explosion results, there is no liability on the part of the gas company for resultant damage.

Schmeer v. Gas Light Co., 147 N.Y. 529, 42 N.E. 202, 30 L. R. A. 653; 25 A. L. R. 285; Flint v. Gloucester Gas Light Co. (Mass.), 3 Allen 343; Flint v. Gloucester Gas Light Co. (Mass), 9 Allen 552; Carmody v. Boston Gas Light Co., 162 Mass. 539, 39 N.E. 184; State v. Cons. Gas Co., 85 Md. 637, 37 A. 263; Smith v. Pawtucket, 24 R. I. 292, 52 A. 1078, 96 A. S. R. 713; Cons. Gas Co. v. Connor (Md.), 32 L. R. A. (N. S.) 703; Dodge v. Halifax Gas Co., 9 N. S. 325; Triplette v. Ala. Power Co. (Ala.), 104 So. 248; Ala. Power Co. v. Jones, 101 So. 898, 28. C. J. 594, Sec. 59; King v. Cons. Gas Co., 90 A.D. 166, 85 N.Y.Supp. 728.

The primary and proximate cause of the accident was the gross negligence of appellee's agent, Bassett, the general contractor and fitter, contributed to by negligence on the part of (a) appellee himself, (b) appellee's agent, his wife, (c) appellee's agent, Dill, the heating contractor, and (d) appellee's agents, the architects.

Miss. Public Service Co. et al. v. Bassett et al., 184 Miss. 6, 184 So. 419.

A usage or trade custom must possess the following essentials: it must be ancient, certain and uniform, compulsory, consistent, general, continued, notorious, reasonable, and not in contravention of law.

17 C. J. 449, Sec. 7.

A custom must be clearly proved, and when the evidence is uncertain and uncontradictory, the custom is not established.

17 C. J. 522-523, Sec. 91.

Customs must be consistent with each other. One custom cannot be set up in objection to another, for, if contradictory, they destroy each other.

17 C. J. 454, Sec. 12.

Reily & Parker, of Meridian, for appellee.

A gas company is liable if negligent in connecting the pipes and setting the meter, when the pipes so connected are uncapped, and damage is thereby caused to one not a customer of the gas company.

Schmeer v. Gas Light Co., 147 N.Y. 529, 42 N.E. 202, 30 L. R. A. 653; Sawyer v. So. Cal. Gas Co., 206 Cal. 366, 274 P. 544.

Where an owner of a building or a tenant therein directs the gas company to make the gas connection, such act could be no more than contributory negligence and would not relieve the gas company from liability.

Sawyer v. So. Cal. Gas Co., 206 Cal. 366, 274 P. 544.

The inference that an owner has seen to the safety of the pipes in his house before ordering gas installed therein does not apply to the installation of gas in a new house or where the matter is otherwise provided by law or practice.

Sawyer v. So. Cal. Gas Co., 206 Cal. 366, 274 P. 544; Herbert v. Baton Rouge Electric Co., 91 So. 406.

Where a gas company has actual knowledge of a defective pipe, a duty of care arises therefrom in addition to the general duty of care, such as inspection, prior to connecting the gas pipes, and such actual knowledge requires the exercise of that care required to avoid the dangers incident thereto.

Miss. Power & Light Co. v. McCormick, 166 So. 534, 175 Miss. 337; Nonnamaker v. Kay County Gas Co., 123 Okla. 274, 253 P. 296.

Argued orally by J. H. Thompson, for appellant, and by Marion W. Reily and L. L. Martin, for appellee.

McGowen, J., Ethridge, J., dissenting. Smith, C. J., concurs in dissenting.

OPINION

McGowen, J.

This case was before this Court heretofore. The report thereof is to be found in Mississippi Public Service Co. v. Bassett, 184 Miss. 6, 184 So. 419. It is here again on appeal by the Mississippi Public Service Company from a judgment against it for $ 2, 665 in favor of appellee, J. B. Cunningham.

Originally, as here, the action was for the loss sustained by Cunningham, the owner of the building, and his contractor, Bassett, who constructed it, for negligently connecting the house fittings for gas with the appellant's gas main, thereby causing an explosion of gas within the house which wrecked the house. Cunningham and Bassett sued the present appellant and Dill in one joint suit for $ 5, 000 and recovered jointly a judgment against appellant and Dill for that amount.

On the former appeal, the Court held that the contractor, Bassett, could not recover because of his gross negligence as fitter of the gas pipes within the house, in that he left an open uncapped pipe, concealed beneath the kitchen floor, which the Court then determined permitted the outflow of the gas which exploded.

The Court further held the appellant, there Dill, was not liable because it was not shown by that record that Dill's action in testing the joints of gas pipes with matches or flames proximately caused, or contributed to, the explosion.

As to the Mississippi Public Service Company, the Court reversed and remanded the cause for another trial.

The Court, as to the latter's liability, said [184 Miss. 6 184 So. 419]: "On the question of whether the gas company was negligent on the facts and circumstances hereinbefore related, we are of the opinion that as between the owner and the gas company it may be a question for the determination of a jury as to whether the action of the gas company in installing the meter and making the gas available from the outside pipes to the piping on the inside of the building was one of the proximate or contributing causes of the explosion, when such action is considered in connection with the gross negligence of the appellee contractor Bassett. The gas company was not required by the city ordinances to inspect the gas piping within or underneath the building, but it was shown by its former local manager, who was employed in the Town of Brooksville for a period of four years and until six weeks prior to the accident, that it had been the established practice and custom not to connect the gas from the outside pipe line into the inside piping until the certificate of the city plumbing inspector, as to the suitability of the inside piping, had been furnished to the gas company, or at least until it knew that proper inspection had been made and that the piping had been found safe for the prevention of escaping gas. It was also testified by a gas plumber of considerable experience that this was the first time he had known of a meter to be installed before such an inspection had been made by the city plumbing inspector. Also, that it had been the almost uniform practice of the gas company to have a representative present when the inspection was made by the city plumbing inspector in the presence of the fitter, and to furnish gratuitously the mercury guage by which such test was made. And although it is true that upon discovering the open pipe in the furnace room the gas company immediately shut off the gas 'cock' on the pipe leading to its meter on the day of its installation some two weeks prior to the accident, and thereafter prevented gas from flowing into the pipes within the building, unless it should again be turned on by the use of a wrench by some third party, we have concluded to reverse and remand the case for a retrial as between the owner Cunningham and the appellant gas company on the issue of the alleged negligence hereinbefore discussed; and when there will also remain for...