Naquin v. Marquette Cas. Co.

• Decision Date: 29 April 1963
• Docket Number: No. 46326,46326
• Court: Louisiana Supreme Court
• Parties: Errol NAQUIN v. MARQUETTE CASUALTY COMPANY and Town of Breaux Bridge, Louisiana.

Page 395

153 So.2d 395

244 La. 569

Errol NAQUIN v. MARQUETTE CASUALTY COMPANY and Town of Breaux Bridge, Louisiana.

No. 46326.

Supreme Court of Louisiana.

April 29, 1963.

Rehearing Denied June 4, 1963.

Willis & Willis, by Earl H. Willis, St. Martinville, for plaintiff and appellant.

Davidson, Meaux, Onebanc & Donohoe, Richard C. Meaux, Lafayette, Helm, Simon, Caffery & Duhe, Lawrence Simon, New Iberia, for respondents.

SANDERS, Justice.

This is a tort action. The plaintiff, Errol Naquin, seeks damages against the Town of Breaux Bridge and its liability insurer in the sum of $7,753.00 for the loss of the contents of his apartment, which was destroyed by an explosion and fire. The unfortunate incident occurred on November 11, 1958, at about 4:50 p.m.

The apartment, occupied by Naquin and his wife, was in the rear portion of the Carmen Theater Building, located at the intersection of South Main and Van Buren Streets in the Town of Breaux Bridge. Of brick construction, the apartment area consisted of two floors, or stories.

The petition alleges that the Town of Breaux Bridge owns, operates, and has the exclusive control of the natural gas distribution system in the Town; that a gas line adjacent to the theater building was in disrepair and had been leaking for some time; that the escaping gas entered the apartment and caused an explosion, which destroyed the building and its contents; that the defendant Town was negligent in failing to maintain safe facilities, in failing to properly inspect the gas line, and in failing to make the necessary repairs after it knew or should have known of the leak. In addition, the plaintiff pleads the doctrine of res ipsa loquitur.

In answer to plaintiff's petition, the Town and its insurer jointly filed exceptions of want of interest, want of capacity, no right of action, and no cause of action. Each defendant also answered plaintiff's petition, generally denying its allegations. In addition, the defendant insurer denied coverage under its policy of insurance. ¹

The district court overruled the exceptions. After trial on the merits, the court rendered judgment in favor of defendants, from which the plaintiff perfected a devolutive appeal. The Court of Appeal affirmed. ² We granted certiorari to review the judgment of the Court of Appeal.

The Court of Appeal concluded that the evidence did not establish that the escaping gas caused the explosion with that 'certainty required by law.' We cannot agree with this holding. From our review of the case, it is evident that the court has imposed a higher standard of proof than the law requires on the issue of causal connection. As correctly noted in the dissent in that court, the standard adopted raises an insurmountable barrier to the proof of causation in a civil action.

In the recent case of Perkins v. Texas & New Orleans Railroad Company, 243 La. 829, 147 So.2d 646, we stated:

'Recognizing that the fact of causation is not susceptible of proof to a mathematical certainty, the law requires only that the evidence show that it was more probable than not that the harm was caused by the tortious conduct of the defendant.' ³

Causation may, of course, be proved by circumstantial evidence. In many instances, it can be proved only by such evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other Possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation. ⁴

Mr. and Mrs. Naquin departed from their apartment for an out-of-town visit on the evening of November 10th. As found by the Court of Appeal, two downstairs windows were left partially open, one and one-half to two (1 1/2 to 2) inches. Shortly before the explosion, several pedestrians observed a large natural gas leak in the service pipe, located about eight (8) feet from the apartment.

The defective pipe was introduced in evidence. The leakage came from an irregularly shaped, corrosion hole in the elbow joint of the pipe. The joint also evidences extensive, general corrosion. The main portion of the hole is more than one-half (1/2) inch in diameter, or about the size of a dime. The defective pipe was from two to three feet underground and carried eleven (11) pounds of pressure. From the leak, the gas line extended along the rear of and parallel to the apartment at the place where the windows were left open. The direction of the wind was from the gas leak toward the apartment.

It is virtually conceded that the explosion was a gas explosion and that it occurred within the apartment. The defendants deny, however, that the gas came from this leak.

The testimony, including that of the Deputy State Fire Marshal, establishes that all of the gas valves in the apartment were closed. The hot water heater on the second floor of the apartment was in operation, but did not explode.

The Deputy State Fire Marshal testified in part:

'Q. So then in some substance, Mr. Fuselier, aside from the question which I asked you concerning our conversation, you cannot say here in this Courtroom that whether this explosion was caused by gas coming from outside or inside of the building.

'A. No, sir. Because I wasn't there and I couldn't say that.'

Plaintiff's expert, Charles W. Parish, who had extensive experience in investigating gas explosions, testified that, in his opinion, the gas from the outside leak caused the explosion.

He stated that upon the first release of the gas through a fissure in the pipe, it would follow a path of least resistance, usually along the pipe. Under the pressure of the gas, the escape hole in the pipe would gradually enlarge. The gas would ultimately reach the surface and mix with the air.

In his opinion, the gas entered the apartment through the open windows with the directional air current. There, it came in contact with an ignition agent, and the explosion ensued. The ignition agents include static electricity, electrical devices, and pilot lights. The evidence discloses that the apartment contained a number of electrical appliances. Ignition agents were present on both the first and second floors. A mixture of only four (4) percent of gas by volume with the air was required to produce the explosion. A four and one-half (4 1/2) foot square box would be sufficiently large to contain all of the gas necessary to have produced the explosion in the apartment.

Defendant's expert, Cecil M. Shilstone, was of the opinion that the explosion was produced by gas but was of the opinion that it probably had not come from the outside. He was unable to identity the source of the gas. He further testified:

'Now, don't for a minute let me leave the Court to believe that I am saying that what Mr. Parish said could not have happened. I said in my opinion the probability is the exact reverse.'

The record is barren of any other Proven source of escaping gas. While the gas water heater was in operation, the evidence is clear that it did not explode. All valves and gas cocks in the apartment were closed when inspected after the explosion. However, the defendants suggest that an open valve could have been closed by the force of the explosion. Since the realm of possibility is expansive, this may be possible. However, the expert testimony reflects that such an occurrence is highly improbable.

The defendants also point to the presence in the apartment of a pint size can of a liquid gasoline fuel used in miniature airplane motors. This, too, is the mere suggestion of a remote possibility. It is clear that the explosion was caused by a vaporized gas. Moreover, the small can was capped.

The record contains substantial circumstantial evidence, which is fortified by expert testimony, that the gas escaping from the municipal gas system entered the apartment and caused the explosion. In our opinion, the plaintiff has established the causal relation by the standard of proof required by law. ⁵

We have noted that the defendants objected to the admission of the evidence tht the gas entered the apartment through the windows on the ground that it enlarged the pleadings. Inasmuch as the petition alleges that the gas from this leak entered the apartment and caused the explosion, we find no material enlargement of the pleadings or fatal variance. Hence, the objection is without merit.

Having concluded that the explosion was attributable to the leak in the municipal gas system, we pass to a determination of the negligence vel non of the municipal employees. The plaintiff asserts that the evidence establishes such negligence but he, also, specifically pleads the doctrine of res ipsa loquitur.

In Raphael Brothers v. Cerophyl Laboratories, 211 La. 354, 30 So.2d 116, this Court adopted the following succinct statement of the law pertaining to natural gas:

'Natural gas, because of its highly inflammable and explosive character, is an inherently dangerous instrumentality. Those who handle and distribute it are charged with the duty to exercise that degree of care commensurate with its...