Reil v. Lowell Gas Co.

• Decision Date: 07 July 1967
• Citation: 228 N.E.2d 707,353 Mass. 120
• Parties: Louis D. REIL, Jr. v. LOWELL GAS COMPANY (and four companion cases). 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 707

228 N.E.2d 707

353 Mass. 120

Louis D. REIL, Jr. v. LOWELL GAS COMPANY (and four companion cases). ¹

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 10, 1967.

Decided July 7, 1967.

Acheson H. Callaghan, Jr., Cambridge (Paul J. Dolan, Boston, with him), for defendant.

Raymond J. Kenney, Jr., Boston (Clement McCarthy, Lowell, with him), for plaintiffs.

Before SPALDING, WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

The five plaintiffs had verdicts for personal injuries sustained in an explosion, or explosions, followed immediately by a fire, on March 6, 1961, on premises of Louis O. Beede & Sons, Inc. (Beede) in Lowell wherein sawdust and wood flour were manufactured, stored, and packaged for sale. The defendant excepted to rulings on evidence, denial of motions to strike the auditor's report or parts of it, the failure to direct verdicts for the defendant, and the failure to give certain requested instructions.

The plaintiffs relied on evidence, including the auditor's report, tending to show that the explosion or explosions resulted from the escape of natural gas from a break in the service pipe. The defendant's experts testified that the explosions were of wood dust and air, not attributable to gas.

It was undisputed that after the fire a break was discovered in the gas pipe between the street main and the meter. This break was in the so called sump room at the base of the steel casings that housed the endless chain bucket elevator which carried raw materials from the unloading platform to the top floor of the factory building. The service pipe from the street main passed through this ten foot square, masonry walled room and through other adjoining rooms to the meter in what had been the boiler room at an earlier time when the plant had been used as a brewery. The break was in a brass coupling or union that joined two sections of the one and one-quarter inch iron service pipe. The auditor found, and the plaintiffs' evidence at the trial tended to show, that this break had resulted from galvanic corrosion due to the flow of electricity between dissimilar metals, that is, the brass of the coupling and the iron of the pipe.

Apart from the other testimony favorable to the plaintiffs, the findings in the auditor's report, if properly admitted, were such as to take the cases to the jury.

The auditor found, as to the cause of the explosion and fire, as follows: '18. I find that the process of Galvanic Corrosion was occurring in the location in the 'Sump'; that this process had been proceeding for a period of at least ten years before March 6, 1961; that for 5 years prior to March 6, 1961 the corrosion was open and obvious * * *. 24. I find that it was inevitable that the process of Galvanic Corrosion occurring and proceeding at the union in the 'Sump' would eventually cause a break or hole in the gas line resulting in the leaking of gas, and that a hole or break approximately 3/10 of an inch by 4/10 of an inch did occur which allowed gas to leak; that this gas moved upward in the 'Sump' and in the building through many openings until there was explosive mixture of gas and air on all floors of the 'Brew House' in that part of the building which was nearest to Payton Street. 25. I find that on March 6, 1961, the natural gas and air mixture exploded; that within 10 or 15 seconds the entire front portion of the 'Brew House' from ground to roof was involved; that the explosion was immediately followed by fire which within one minute after the explosion involved all floors of the building; that within 10 or 15 seconds after the explosion, a substantial part of a brick tower at the top of the building disintegrated and fell to the street, that other portions of the roof of the building were blown off, that an employee on the top floor of the building was thrown off his feet and to the floor as the explosion occurred and other men on the ground floor were also thrown off their feet and to the floor by the explosion. * * * 29. I find that wood dust when suspended in the air in sufficient quantity, when ignited by a sufficient source of energy, will explode * * *. 30. I find that the explosion which occurred in the 'Brew House' was consistent with, and caused by, a gas-air mixture, and was not consistent with wood dust, as a cause.' ²

The auditor made no finding as to the ownership of the service pipe. He found (No. 9) that the defendant had made and sold gas in the Lowell district for sixty years; also (No. 21), that the service pipe from the main to the sump room was installed in 1897. On the issue of control of that pipe he made several findings. He found (No. 33) that the defendant had been a member of the American Gas Association since at least 1950, and that this association incorporated all applicable rules of the American Standards Association (A.S.A.) in its publications for the guidance of its members, and that the defendant, with other gas distribution companies, operated under the rules and standards of the A.S.A. He also found (No. 34) that the custom and usage of gas distribution companies, at least since 1955, has been that the company has exclusive control over all gas service pipes, that is, the pipes from the main to the customer's meter. He found that Beede first began to purchase gas from the defendant in 1957; that Beede in no way changed, modified or interfered with the gas pipe from the main to the meter; and that neither the defendant nor anyone else changed, modified or interfered with the gas pipe during the period from 1955 to March 6, 1961, except in one instance. On February 1, 1957, nine months before Beede bought the premises, an employee of the defendant entered the sump room and removed a gas meter of the defendant. '22. I find that service employees of the gas company had been in the 'Brew House' premises (Beede's premises) premises) on the business of the gas company on at least 6 occasions from 1955 and before March 6, 1961; that they replaced the meter in the boiler room on at least two occasions between 1955 and 1958. * * * 36. I find the pipe and union referred to were in the exclusive control of the defendant * * * at least since 1957 * * * that the defendant Gas Company and only the defendant Gas Company had a legal duty to exercise reasonable care to maintain the said pipe and union in a reasonably safe condition for the transmission of natural gas which it contained.'

The auditor did not expressly find (as the trial evidence showed) that Beede's employees used the sump room for access to and maintenance of the hoisting machinery and for removal of material that fell from the hoist. He did find, however (No. 10), that at the time of the explosion there was a vertical and stationary steel ladder to a allow workers to descend into the sump room, that the base of the vertical elevator extended into the sump room and there was space in it for a person to stand upright. The ladder was reached through a bulkhead. Air could pass from this masonry enclosed room into the elevator openings.

On the issue of neglgience the auditor found as follows. (No. 14) '(I)t is a principle well known in the gas distribution industry that a copper base metal is not compatible with iron and that joining these two metals at a place where moisture is present will cause * * * 'galvanic corrosion. " The sump room was always damp; this condition was obvious; (No. 17) the presence of the two dissimilar metals would have been obvious and readily discoverable on any routine inspection by a trained inspector; the galvanic corrosion had been going on for at least ten years before March 6, 1961, and for five years prior to that date it was open and obvious; the defendant had never inspected the gas pipe in the sump room and had no provision or rules for periodic inspection of gas pipes located within the premises of its customers. The auditor also found (No. 16) that the union was made of a substandard copper based alloy, making it brittle and likely to break or crack and was unsuitable and improper metal for construction of a pipe or union which was to be used in the transmission of gas.

1. We consider together the motion to strike the auditor's report and so much of the motion to strike parts of the report as specifies the auditor's ultimate conclusions and certain subsidiary findings on which those conclusions depend.

The defendant submitted to the trial judge a partial transcript of testimony before the auditor to support its assertion that the auditor's 'conclusion of responsibility is not warranted by the evidence of the four experts who testified.' This was not correct procedure and the judge rightly disregarded the contention. Even though Rule 90 of the Superior Court (1954) is inapplicable to an auditor's report that is not final (see Rule 89), a motion to recommit is the proper means of dealing with a report containing findings not supported by any evidence. Levovsky v. Horvitz, 307 Mass. 475, 480, 30 N.E.2d 411.

There is nothing in the assertion of the motion that the auditor merely copied all the plaintiffs' requests for findings; there was no basis at the trial for going outside the report to ascertain this. Another asserted ground for striking the report was that the 'auditor's conclusion of responsibility is inconsistent with the subsidiary facts found by him.' We see no inconsistency. This leaves the only issue under this motion whether the auditor's conclusion of responsibility 'is based on an erroneous conception of the law to be applied to the case.' This raises an issue under G.L. c. 221, § 56, ³ as does the motion to strike findings 87, 88 and 90. ⁴ The assertion of error in the ultimate findings is that they are based on an erroneous conception of the law and are unsupported by any subsidiary findings.

The auditor's conclusion of causal relation between the break and the explosion is fully supported by his subsidiary...