Salsberry v. Archibald Plumbing & Heating Co., Inc.

• Decision Date: 04 September 1979
• Docket Number: No. KCD,KCD
• Citation: 587 S.W.2d 907
• Court: Missouri Court of Appeals
• Parties: Ann E. SALSBERRY et al., Plaintiffs-Respondents, v. ARCHIBALD PLUMBING & HEATING CO., INC., Defendant-Appellant. 29709.

Page 907

587 S.W.2d 907

Ann E. SALSBERRY et al., Plaintiffs-Respondents, v. ARCHIBALD PLUMBING & HEATING CO., INC., Defendant-Appellant.

No. KCD 29709.

Missouri Court of Appeals, Western District.

Sept. 4, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 1, 1979.

Application to Transfer Denied Nov. 14, 1979.

Wendell E. Koerner, Jr., St. Joseph, for defendant-appellant.

Patrick McLarney, Allen S. Russell, Kansas City, for plaintiffs-respondents.

Before WASSERSTROM, C. J., and SHANGLER, DIXON, SWOFFORD, SOMERVILLE, TURNAGE and CLARK, JJ.

PER CURIAM:

Plaintiffs, remarried widow and nine minor children, received a verdict for $50,000 damages in a claim for the wrongful death of their husband and father, Ernest E. Salsberry, which occurred as the result of an explosion on June 19, 1969. From the ensuing judgment, defendant Archibald Plumbing & Heating Company, whose negligence in causing or permitting the escape of natural gas is claimed to have caused the explosion and resulting death, has appealed to this court.

We affirm the judgment.

The explosion occurred in Building No. 9, one of several apartment buildings under construction in a project known as East Side Apartments in St. Joseph, Missouri. Decedent Salsberry worked for the painting contractor, and he and four other painters were concluding their day's work at about 4:25 o'clock in the afternoon and were preparing to leave the site. Two of them had that day been spraying lacquer throughout the building. The basement apartment of Building No. 9 was being used as "the painters' shop," where their supplies and paints were stored and where they changed clothes and cleaned up. Decedent Salsberry and another painter had completed moving the supplies and paints there from another building only shortly before the explosion, although some lacquer, paint and thinner had been stored there some days or weeks. Salsberry, along with the foreman, Jack Forson, and the three other painters were in the first floor apartment. (The same apartment is sometimes called the first floor apartment and sometimes the basement apartment. It was about half below ground and half above.) When someone hollered, Forson looked up to see a "flash," a "flame," cross the ceiling of the living room, "and maybe in the hallway," followed by the explosion. Forson was badly burned and Salsberry was killed.

The gas pipes in the building had been installed by defendant Archibald and it was plaintiffs' theory that there were leaks in the gas pipes within the building which permitted the escape of natural gas, thereby causing the explosion and its consequences.

Defendant maintained that natural gas had never been admitted into the gas pipes in Building No. 9, and that the explosion was caused by an accumulation of lacquer fumes. The lacquer being used by the painters and stored in the basement apartment consisted of about 70 percent volatile solvent. Thinner stored in the apartment and used to clean brushes and equipment was 100 percent solvent.

With this brief factual background, we will take up defendant's points of error, stating additional evidence as necessary in dealing with the point under consideration.

Prima facie case.

We must first deal with the question whether a prima facie case was made by plaintiff. Defendant stoutly maintains that plaintiff's case must fail because there was no proof that the gas cock, or valve, which would have admitted gas from the gas main into the Building No. 9 system, had ever been opened at the time of the explosion. It objects for the same reason to plaintiff's verdict-directing instruction, and to the opinion evidence of expert witnesses, Dr. Frank Fowler and Dr. Fred Kurata, that the explosion was caused by natural gas.

Indeed there is no direct evidence of the fact that the gas cock had been open at any time. Only one witness, Verne Ray, had actually inspected the gas cock soon after the explosion. He had done so about 20 minutes thereafter at the instance of an Archibald foreman, Sam Worley, who had died before trial. Witness Ray said the valve was shut. Construction superintendent Larsen had found the gas cock in closed position later that evening. A photograph of the gas cock is not clear enough to show that gas cock was completely closed. No one testified he noticed whether the gas cock was open or closed before the explosion.

The gas supply for the entire project, which seems to have consisted of 13 buildings, entered through a valve at the gas meter. From there a four-inch underground gas main served all the buildings. The gas flow into each building was controlled by an above-ground gas cock, or valve. The parties do not suggest that gas could have entered the building otherwise than through this open gas cock. Externally the valve was controlled by a bar which was parallel to the gas pipe when open, and at right angles with it when closed. It could be closed or opened with a pipe wrench or at least a 10-inch crescent wrench. It could not be closed or opened by hand.

Witness Angold, a plumber and an Archibald employee, was working with another plumber at the project on the date of the explosion. The other plumber, Sam Worley, had died before the trial. It was their task on this date to get another building, Building No. 5, ready for occupancy by getting the hot water heater connected. They had opened the valve at the meter which had admitted the gas into the main which supplied all the buildings in the project, at about 11 o'clock a. m. Before doing so, however, they had separated from each other to check the gas valves to the individual buildings for the purpose of closing any found to be open. Although the gas pipes would be capped off inside the building, they took the precaution of closing the valves outside the building. Usually the valves would arrive and be installed in closed position, witness Angold said, but occasionally one would be open. The witness did not remember whether the gas cock at Building No. 9 was one of those which he had checked. The gas lines were not connected to the appliances in Building No. 9, but were capped off. Apparently this was the first time that gas had been admitted to the main at the project. There was no reason for the gas to be turned on in Building No. 9.

Angold turned off the gas at the meter as he left work after the explosion. It had been turned off at that point for perhaps two hours to allow the repair of a low point valve, and for another period had been turned on and off intermittently to expel water from the main. Otherwise it had been on since 11 o'clock a. m. When the gas company itself turned on the gas on June 25, the meter showed 12,000 cubic feet of gas had gone through it. The meter had been installed May 14.

With respect to the cause of the explosion, Dr. Frank Fowler, a consulting chemical engineer, testified as follows: He examined the wreckage on the day following the explosion. He testified the explosion originated in the space between the floor of the second floor and the ceiling of the first floor. "It was in that area that separated the two, where the ceiling joists of the first floor was involved, the explosion was in that space," he said. Dr. Fowler pointed out that the ceiling sheet rock had been blown downward and the second floor boards had been blown upward with great force. He further testified that the gas lines in the vicinity of the blast were defective. An elbow had a small hole from which gas could escape at the rate of 6.8 cubic feet per hour. A pipe had been cross-threaded to permit a leakage of 46 cubic feet per hour, and a nearby plug was also loose which would allow some leakage. These could have leaked in the space of two hours sufficient gas to cause an explosion of the magnitude of the one in question. He further stated that the defects in the lines could not have been caused by the explosion and that lacquer fumes an alternate cause suggested by defendant could not have caused the explosion. Dr. Fowler testified: "My opinion is that the natural gas in that ceiling area caused the explosion, was ignited and caused the explosion. . . . The basis of that opinion is the evidence that I saw of the damage, the location of the origin of the explosion, the way the floor was blown up into the ceiling and the ceiling was blown downwards, indicating the explosion occurred in that area. The only possible fuel that was in that ceiling area was natural gas. . . . The only fuel that was in that area was the gas lines, the natural gas lines, and that offered the only possibility of fuel in that ceiling area. This was a vapor-air type of explosion. . . . The lacquer could not have gotten into that ceiling area in any concentration that was detectable, that would have caused an explosion. . . . "

This evidence is sufficient to show prima facie that gas was present and caused the explosion. The absence of direct evidence of the open gas cock is not fatal. The ultimate contested fact to be believed by the jury was that the explosion was caused by the presence of natural gas. They were entitled to believe that fact from the testimony of Dr. Fowler as to the characteristics and the location of the blast. The jury was not concluded by the direct evidence respecting the position of the gas cock control. They could believe as a matter of deductive logic, as a necessary corollary to the presence of natural gas at the blast location, that the gas cock was on for some period during the afternoon. Coffman v. St. Louis-San Francisco Ry. Co., 378 S.W.2d 583, 599 (Mo.1964).

Defendants for their position cite Minneapolis, St. Paul & Sault Ste. Marie Railroad Co. v. Metal-Matic, Inc., 323 F.2d 903 (8th Cir. 1963), where plaintiff sought damages from the railroad to machinery in transit. Its evidence consisted of an expert's testimony that the damage to the machinery was of the sort which would occur if cars containing the machinery were to strike with...