Moore v. Heat & Light Company.
| Decision Date | 27 April 1909 |
| Citation | 65 W.Va. 552 |
| Court | West Virginia Supreme Court |
| Parties | Moore v. Heat & Light Company. |
In an action for tort, the plaintiff bearing the burden of proof, a verdict for him cannot be found on evidence which affords mere conjecture that the liability exists, and leaves the minds of jurors in equipoise and reasonable doubt. The evidence must generate an actual rational belief in the existence of the disputed fact. (p. 557.)
"Where a liability is asserted on the ground of tort, the plaintiff bears the burden of proof of the fact on which the liability rests, and the burden to disprove such fact does not shift to the shoulders of the defendant until plaintiff's evidence shows a state of facts sufficient to establish a rational belief of the existence of such fact. (p. 557.)
Error to Circuit Court, Ritchie County.
Action by T. E. Moore against the West Virginia Heat & Light Company. Judgment for plaintiff, and defendant brings error.
Reversed.
Adams & Cooper and J. Newman, for plaintiff in error. Robinson & Prunty, for defendant in error.
T. E. Moore's house was destroyed by fire and he sued the West Virginia Heat & Light Company to recover damages for its loss. That company owned a natural gas well 5580 feet from Moore's house, and a pipe conveying its gas ran within 150 yards of Moore's house, and from that pipe a smaller one conveyed gas to Moore's house for his use in it. He used gas in two stoves. The company shut off the gas to connect with a pipe to convey the gas to Cairo, and then without notice turned on the gas again, and, as Moore claims, this caused the fire. Upon the trial the defendant company demurred to the evidence, and upon the demurrer the circuit court of Ritchie county gave judgment for Moore for $950, and the company sued out this writ of error.
The question ruling the case is, Does the evidence sustain the plaintiff's action? The case does not so much involve negligence. The question is, whether the fire originated from the returning gas. Assuming that turning off and turning on again the gas, without notice, is negligence, the problem is, Did the fire come from this cause? It is needless to say that the burden of proof to establish this fact rests on the plaintiff. "A verdict based alone on mere conjecture, without evidence to support it, where the rule as to burden of proof requires some reliable affirmative evidence, should not be permitted to stand." Robinson v. W. Va. & P. R. Co., 40 W. Va. 58*3. "A mere equipoise of evidence is insufficient to satisfy the burden of proof, nor is conjecture or theory or bare possibility of the existence of the ultimate fact to be proved sufficient." 8 Ency. of Ev., 866. "When under the evidence the injuries complained of may have resulted either from defendant's negligence or from some other cause for which he is not responsible, the plaintiff cannot recover, as he has not discharged the burden of proof." 21 Am. & Eng. Ency. L. 516.
Trie house was a board house of one story and a half. One stove was in the kitchen, another in the sitting room., The upstairs including part of the house was not used as a room, but as a place to stow away things. It was over the sitting room. The gas was turned off from the well and the fire went out in the stoves. Then Mrs. Moore left the house and went to a neighbor's to get him to put up a stove for coal, as she had been told some time before by an agent of the company that owing to a sale of the well the gas would be cut off from the house at some future time, and when cut off it would not be restored to the house. Shortly after she left the house was discovered to be on fire. There was then no one in the house, and no one saw the commencement of the fire, or could give any account of its commencement or how it started. It was first observed at a school house in the vicinity by fire issuing from the roof, and when the teacher and another or others went to the; house he opened the sitting room door, and saw that the fire was in the garret and was consuming the ceiling over the sitting. room. It is clear that the fire started in the garret; but how no one knows. Mrs. Moore had been ironing and had the stove quite hot. From the stove in the sitting room ran a pipe to the ceiling, and there connected with a flue of iron running' from the ceiling up through the tin roof, the flue being an iron casing used in oil wells. When the teacher and another with him looked in the sitting room they saw no fire in the stove. This, so far, goes to show that the gas had not yet come back. The plaintiff's theory is, that the gas passed into the burner in that stove and went up pipe and flue. How did it ignite, if so? His counsel would say that there was a latent spark in burner or pipe or flue and when the gas went into them, one or another, ignition occurred. The teacher and the witness with him did not observe it there. If it went into the stove pipe or flue and there ignited the flame would have followed the current back down into the stove, so they could have seen it in the stove, unless the stream was so strong as to drive it on up, which is a farfetched idea, there being no evidence of such a strong volume of gas. And how can we say that the volume was any greater then than it had been all day before the gas was cut off? The regulator was the same, the stopcocks the same. If the gas filled the room and exploded we could see how the fire; occurred, but there was no explosion. And whence the fire to cause explosion? And the fire started above the room and burned downward. There is nothing to show any stronger current; but what we do know goes against it. Another circumstance proven by the teacher, a witness for the plaintiff, is, that there was a gas jet or flambeau in the yard, and the teacher did not see it burning when on the ground, and thinks it was not. These things go to show that the gas had not yet come back when the fire started. The teacher noticed no gas escaping. The evidence for plaintiff of experienced gas men is, that if the regulators worked well no greater quantity of gas would be admitted when the gas came back than before. We could ourselves assume this, even if not proven. When there is no evidence of greater flow of gas; when the regulators and stopcock were the same as before, how can we say that the trouble came from a larger flow? And why, if no larger, would it set the house on fire when it had not for nine months before? There was no change in fixtures. Evidence of plaintiff clearly proves that if the regulators worked there would be no greater flow of gas than before. Why, if the gas came back and ignited, would it not go up the pipe and flue and out? Why prove so disastrous at this particular time? Why would it not go up the flue? I ask again. If the gas came on before the fire it would either go up the flue, or into the room; but those on the ground scented no gas, and no explosion occurred. The chief reliance of plaintiff to prove that this gas started the fire when it came back is, that a latent spark...
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