Phillips v. Delaware Power & Light Co.
| Decision Date | 07 January 1966 |
| Parties | , 59 Del. 179 John H. PHILLIPS, Jr., and Beatrice D. Phillips, his wife, Plaintiffs-Below, v. DELAWARE POWER & LIGHT COMPANY, a Delaware corporation, Defendant and Third-Party Plaintiff-Below, Appellants, v. The MAYOR AND COUNCIL OF the CITY OF WILMINGTON, a municipal corporation, and Dabson Paving Company, a Delaware corporation, Defendants and Third-Party Defendants-Below, Appellees. |
| Court | United States State Supreme Court of Delaware |
Appeal from the Superior Court in and for New Castle County.
Clement C. Wood, of Allmond & Wood, Wilmington, for plaintiffs below, appellants.
Roger Sanders, of Prickett & Prickett, Wilmington, for defendant and third-party plaintiff below, appellant.
Alfred M. Isaacs, of Flanzer & Isaacs, Wilmington, for the Mayor and Council of City of Wilmington, appellee.
William F. Taylor, of Young, Conaway, Stargatt & Taylor, Wilmington, for Dabson Paving Co., appellee.
CAREY, Justice, and MARVEL and SHORT, Vice-Chancellors, sitting.
The action below was a suit in Superior Court for damages caused by an explosion of gas which came into plaintiffs' home from a gas main. The Court below granted summary judgment on the ground that the affidavits, depositions and other materials in the record failed, as against appellees, to show negligence or proximate cause. Plaintiffs and third-party plaintiff have appealed.
Plaintiffs (Phillips) originally sued Delaware Power and Light Company (Delaware) alone, since the gas came from Delaware's main in the bed of Twenty-seventh Street in Wilmington. Delaware filed a third-party complaint against the Mayor and Council of Wilmington (City) and Dabson Paving Company (Dabson) on the theory that certain resurfacing work that had previously been done on Twenty-seventh Street was performed negligently and was the cause of a break in the gas main, which it alleged was the true cause of the explosion. Thereafter, Phillips amended their complaint by adding both City and Dabson as defendants, charging negligence upon a theory similar to that in the third-party complaint.
The explosion occurred in the middle of the month of January, and the repaving work had been done the preceding fall. The work was carried out by Dabson under a contract with City, which had provided the specifications. There were spots along Twenty-seventh Street which had previously given trouble to City because the earth under the pavement was apparently not sufficiently solid or firm to support the pavement. To prevent further trouble of this sort, the old paving and the sub-surface materials at those spots were removed to a depth of about eighteen inches, the holes filled with select gravel, and eight inches of concrete poured on top of the gravel, thus making a 'patch'. After the patching, the whole street bed was covered with five inches of hard-mix asphalt, packed with a roller. The gas main here involved was three feet under the original surface. It was made of cast iron, eight inches in diameter. It had been in use about thirty-three years.
After the explosion, Delaware found a fresh break in the pipe from which gas was escaping, the break extending completely around the circumference of the pipe. The break was not directly under, but was near, a slab or patch laid by Dabson as described above. The evidence justifies a finding that the explosion resulted from gas escaping through this break, following the line of least resistance through the ground around the service line, and entering plaintiffs' home.
The vital question is whether there is any evidence in the record to justify a finding that the break in the main was caused by any act of the appellees.
The theory advanced by appellants is that the break was a 'tension' break, caused either by the weight of the machinery used to patch the street surface, or by the weight of the slab laid. Two witnesses testified that this 'could' be the correct explanation. Only one expert, however, was questioned as to the probable cause. This was Mr. Clift, an officer of Delaware. We quote the significant parts of his testimony:
'Q Could that main have fractured because of cold weather?
A Yes.
Q It could have?
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Q Then do you say that this piece of pipe broke because of force applied to it, applied to it from somewhere else and not being, shall we say malleable or not bendable, that it just fractured?
A It was a characteristic fracture of a cast iron main, let me just say that. We have many many cast iron mains break in our system, many of them; not very many of mains of this size, most of the mains that we have break are three inch and four inch mains which aren't physically as strong as this and this differed very little from the fractures of the mains that we dig up every year, find and dig up.
Q What are the causes of these breaks that you have just been talking about, these fractures or breaks that you have just been talking about, some of the causes?
A Well, you put your finger on one. Most of them occur during the winter when the frost level has gone down. The causes are probably brought about by ground stresses due to the frost and also the transmission of traffic shock due to the frost to the main, because cast iron mains are more susceptible to fracture because of shock than steel. That about covers the water-front on why it would break.
Q This main was below the frost line?
A I don't know the amount of frost that was in that ground at the time this occurred but my answer to that, I would say yes, that there wasn't frost down to the main at this point.
Q There wasn't frost down to the main?
A I don't believe there was.
Q So we can't attribute this break to frost?
A Let me say that you can have strain by frost without the frost encompassing the main.
Q I don't quite understand that, maybe you could help me out?
A Well, if you reduce the amount of cushion and I am speaking of earth, and replace it with a solid medium you are making the main more susceptible to shock. If a main has thirty inches of cover--I think this is three feet of cover, I think they have told me that is what it was--and we have a frost penetration of let's say two feet we have a cushion of one foot over the main and it makes it more susceptible to the shock that is brought about, and also susceptible to the strain.
So in my opinion it could have happened by frost or it could have happened because of the manner in which the repairs were made in the street.'
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Q Now, do you have any theory that the placing of the slab by the city of which we have just spoken some thirty feet to the east of the break in the main had anything to do whatever with the break?
A I have read the report of the engineer who places the fault of the break on the slab and there is some merit in what he says that it could have...
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