Okla. Natural Gas Co. v. Same
| Decision Date | 07 November 1939 |
| Docket Number | Case Number: 28766 |
| Citation | 186 Okla. 330,97 P.2d 768,1939 OK 475 |
| Parties | OKLAHOMA NATURAL GAS CO. v. PACK SAME v. MADISON |
| Court | Oklahoma Supreme Court |
¶0 1. ACTION--Election of remedies-Breach of contract as tort--Action on contract or ex delicto.
Accompanying every contract is a common-law duty to perform the thing agreed to be done with care, skill, reasonable expediency, and faithfulness, and a negligent failure to observe any of these conditions is a tort as well as a breach of contract, and the injured party may elect to sue upon the contract or treat the wrong as a tort and bring an action ex delicto.
2. GAS--Duties of gas company to consumer--Care and diligence required to assure adequate supply.
Where a gas company operating as a public utility undertakes to supply a consumer with gas, it assumes the further duty of using care, diligence, and reasonable expediency in maintaining, repairing, inspecting, and operating its equipment and lines so that an adequate supply of gas will be available.
3. NEGLIGENCE -- Proximate cause of injury as jury question.
Whether or not the defendant's negligence is the proximate cause of the injury sustained should be left to the jury, where the evidence is conflicting, or where men of ordinary intelligence differ as to the effect of the evidence on this point.
Appeal from Court of Common Pleas, Tulsa County; William N. Randolph, Judge.
Actions by Addie Pack and Phyllis Madison against the Oklahoma Natural Gas Company, consolidated. Judgment for plaintiffs, and defendant appeals. Affirmed.
Underwood, Canterbury, Pinson & Lupardus, of Tulsa, for plaintiff in error.
Amos T. Hall, of Tulsa, for defendants in error.
¶1 Phyllis Madison, a minor, by her mother and next friend, Laverta Madison, filed suit in a justice court, recovering judgment against the Oklahoma Natural Company. The cause was appealed to the court of common pleas of Tulsa county. It was consolidated with a case entitled Addie Pack v. Oklahoma Natural Gas Company. Judgment was for plaintiff in each case, and the defendant, Oklahoma Natural Gas Company, has appealed both cases, and under stipulation the causes here have been consolidated. The parties will be referred to as plaintiffs and defendant, as they appeared below.
¶2 On January 19, 1937, Laverta Madison maintained a home in Tulsa. With her lived her minor daughter, Phyllis Madison, and her mother, Addie Pack. Prior to said date the home had been supplied by defendant with natural gas for fuel. About 5 a.m. on said date, the gas supply failed in the home. Defendant was notified, and about 8 o'clock its employees began work and re-established the flow of gas. During the day the gas supply failed several times and each time defendant's workmen re-established the flow. The same was true on the 20th, 21st, and 22nd of January. On the last date defendants laid an emergency surface line to the home, after which the supply of gas was ample.
¶3 Immediately prior to and during the above dates, the weather was extremely cold.
¶4 Plaintiffs alleged that the defendant's pipe line had been in the ground for ten to twelve years, had become rusted and worn to the extent that holes had been made in the pipe; that water had seeped in; that the meter located at plaintiff's house was old and worn; that water and moisture in the pipes had collected in the meter and become frozen, thereby hindering and preventing entrance of gas into plaintiff's house; that defendant failed and neglected to install approved appliances and devices in its lines to prevent collection of moisture, and that as soon as defendant became aware of the defective condition of the line leading to plaintiff's house it could have and should have by the exercise of ordinary care laid a temporary line to plaintiff's house.
¶5 The evidence showed that plaintiff's house was the last house on the street; that defendant's line ran down hill for some distance from the main line and dead-ended about four or five feet beyond the service connection. to plaintiff's house; that the line had been in the ground for about ten years; that when the plug in the dead end was removed on the 19th, water drained out of the line; that the plug had not been removed and the line drained since it was installed; that the plug was replaced with a draincock; that on the various trips to plaintiff's house defendant's workmen drained water from the line through this draincock and heated the meter with blow torches, after which the flow of gas would be re-established for a short while only to become insufficient again.
¶6 There was conflict in the evidence concerning the installation, operation, and inspection of drips to collect and drain off the water deposited in the gas pipes.
¶7 It was shown that after several unsuccessful attempts to re-establish the flow of gas to plaintiff's house, a new meter was installed, but this afforded only temporary relief, and on the fourth day a temporary surface line was laid, after which no trouble was experienced.
¶8 The evidence further showed that Phyllis Madison showed symptoms of a cold late Tuesday evening and on Wednesday a doctor was called, by which time she had developed a high temperature; the doctor advised against her removal to another house during the inclement weather; that she was confined to her bed for a period of two weeks. Addie Pack, who cared for Phyllis during the daytime, showed symptoms of illness Thursday evening, and on Friday the doctor was called and she was confined to her bed for over a period of two weeks.
¶9 The actions were tried as tort actions. This, defendant contends, was error because the action by plaintiff, if any exists, is simply an action for breach of an agreement to deliver personal property, the measure of damages for which is prescribed by section 9971, O. S. 1931, 23 Okla. St. Anno. § 29, and section 9996, O. S. 1931, 23 Okla. St. Anno. § 92.
¶10 Defendant correctly contends that there was a contractual relationship between the plaintiffs and defendant. The latter had entered into a contract to supply and had been supplying the house of Laverta Madison with gas. The plaintiffs were at least beneficiaries of that...
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