Riojas v. Lone Star Gas Co., A Div. of Ensearch Corp.

• Citation: 637 S.W.2d 956
• Decision Date: 29 July 1982
• Docket Number: No. 2-81-046-CV,2-81-046-CV
• Court: Court of Appeals of Texas
• Parties: Pedro & Abundia RIOJAS, Appellant, v. LONE STAR GAS CO., A DIVISION OF ENSEARCH CORP., Appellee. . Date

Page 956

637 S.W.2d 956

Pedro & Abundia RIOJAS, Appellant, v. LONE STAR GAS CO., A DIVISION OF ENSEARCH CORP., Appellee.

No. 2-81-046-CV.

Court of Appeals of Texas,

Fort Worth.

Date July 29, 1982.

Rehearing Denied Sept. 9, 1982.

Art Brender, Fort Worth, for appellants.

Shannon, Gracey, Ratliff & Miller and David E. Keltner, Fort Worth, for appellees.

Before MASSEY, C.J., and SPURLOCK and JORDAN, JJ.

OPINION

MASSEY, Chief Justice.

This is an appeal from a summary judgment. Pedro and Abundia Riojas, husband and wife, brought suit against Lone Star Gas Company for personal injury damages sustained by them on or about February 26, 1977. The Riojases alleged their entitlement to such damages under common law tort principles, and additionally sought recovery based upon Lone Star's alleged violations of the Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Comm. Code sec. 17.41, et seq. (1982), referred to herein as DTPA.

With the issues joined by pleadings Lone Star moved for summary judgment on its theory that as a matter of law the acts of the gas company in terminating the plaintiffs' gas service sometime prior to 5:00 p.m. on February 25, 1977, had no causal connection to their damages resulting from injuries sustained by reason of carbon monoxide inhalation. It had been at least twenty-six hours after gas service had been turned off that plaintiffs' injuries were sustained. From the trial court's grant of the Lone Star motion, plaintiffs appealed.

We affirm. From the summary judgment evidence of record, there exists no genuine issue of material fact precluding Lone Star's entitlement to judgment as a matter of law.

In considering the propriety of the grant of summary judgment, this court must accept as true the plaintiffs' version of the facts as evidenced by the summary judgment proof and must make every reasonable inference in their favor. Conerly v. Morris, 575 S.W.2d 633, 635 (Tex.Civ.App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.). This we do. In outlining the facts relative to our disposition of the case, all conflicts in the evidence have been resolved in plaintiffs' favor.

On October 23, 1976, plaintiffs Pedro and Abundia Riojas moved from one area of Fort Worth to a residence located in another area. During the next four months, November 1976 through February 1977, plaintiffs failed to receive a monthly bill from Lone Star for gas service being provided to their new residence. Mrs. Riojas contacted Lone Star in each of the four months and requested a bill for gas service, but none was received. Concerned with the possibility that plaintiffs might receive a large bill representing months of unbilled service, Mrs. Riojas made inquiries concerning the amount of the bill Lone Star would send. She was assured that if a large bill was sent she would be given an opportunity to make installment payments in retirement.

On Friday, February 25, 1977, an employee of the gas company presented a bill for $156.00. Plaintiffs did not have $156.00. Contrary to the assurances given by the gas company they were not afforded opportunity to pay the bill in affordable installments. Gas service to the plaintiffs' home was terminated. [Herein lie the acts of Lone Star alleged to be in violation of DTPA in its secs. 17.46(a), 17.50(a)(1) & (3).]

On Saturday, February 26, 1977, the Fort Worth area experienced a sudden drop in temperature. The plaintiffs depended upon gas for heating and cooking. Because gas service had been terminated plaintiffs built a charcoal fire in a bucket outside to cook their food during that day. That night, in order to keep warm, they brought the bucket inside their home. As result of this both Mr. and Mrs. Riojas suffered carbon monoxide poisoning from charcoal fumes. Luckily, Mr. Riojas was able to contact one of his children before he lost consciousness. The child hurried to the parents' home, found both plaintiffs unconscious, and summoned an ambulance. Although plaintiffs were revived both suffered personal injuries from their inhalation of the charcoal fumes. They sued for damages because of these injuries.

The gist of plaintiffs' complaint was that Lone Star wrongfully terminated their gas service when they did not allow them to retire their unusually large bill over a period of time contrary to prior representations made by Lone Star. Such conduct and acts on the part of the gas company were alleged to have been actionable under the common law as well as under DTPA. Southwestern Gas & Electric Co. v. Stanley, 123 Tex. 157, 70 S.W.2d 413 (1934). For our purposes we will assume that plaintiffs did indeed plead a valid cause of action under the Deceptive Trade Practices Act, especially in light of their use of its "catch-all" provisions in secs. 17.46(a) "false, misleading, or deceptive acts or practices of any trade or commerce", and 17.50(a)(3) "any unconscionable action or course of action by any person".

The only damages sought were those which flowed from the carbon monoxide poisoning, namely compensation for medical bills and for pain and suffering. In other words, the plaintiffs did not seek the more "typical" items of damages encountered in wrongful termination cases, such as damages for inconvenience, discomfort, spoilage of foodstuffs, injury to property, or lost profits. We have been cited to no case, and have found none, which is at all similar to this wrongful termination case.

In their single point of error, plaintiffs contend the trial court erred in granting Lone Star's Motion for Summary Judgment, by holding, as a matter of law that by their evidence there was no proof of any causal connection between Lone Star's act and plaintiffs' injuries.

The appropriate standard of causation under the Texas Deceptive Trade Practices--Consumer Protection Act, Tex. Bus. & Comm. Code sec. 17.41, et seq. (1982) is that of "producing cause". See ...