Southern Union Gas Co. v. Briner Rust Proofing Co., 6443

• Decision Date: 07 November 1958
• Docket Number: No. 6443,6443
• Citation: 65 N.M. 32,331 P.2d 531,1958 NMSC 123
• Parties: SOUTHERN UNION GAS COMPANY, a corporation, Third-Party Plaintiff-Appellant, v. BRINER RUST PROOFING COMPANY, Inc., a corporation, Third-Party Defendant- Appellee.
• Court: New Mexico Supreme Court

Page 531

331 P.2d 531

65 N.M. 32

SOUTHERN UNION GAS COMPANY, a corporation, Third-Party Plaintiff-Appellant, v. BRINER RUST PROOFING COMPANY, Inc., a corporation Third-Party Defendant- Appellee.

No. 6443.

Supreme Court of New Mexico.

Nov. 7, 1958.

Keleher & McLeod, Russell Moore, Albuquerque, for appellant.

Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellee.

SADLER, Justice.

This is an appeal by Southerin Union Gas Company from a summary judgment rendered against it on its third party complaint seeking damages, contingently, against Briner Rust Proofing Company, Inc., among others, in a certain cause lately pending on the civil docket of the district court of Bernalillo County, known as Cause No. 68,492, wherein John O. Betts, a minor, suing by his father, Manley O. Betts, as next friend, was plaintiff and Southern Union Gas Company, and others, were defendants.

The primary object of the action was to recover damages for personal injuries suffered by the minor plaintiff in an explosion due, as plaintiff alleged, to the negligence of the defendants. The original complaint of plaintiff was later amended. About the same time David Boyd by his mother and next friend, Juanita Kling, suing as such and individually, filed their complaint against the same defendants in the other cause, this action being No. 66,954 on the civil docket of the district court of Bernalillo County.

Both complaints alleged substantially that the defendants, jointly, severally, and concurrently excavated, negligently laid, installed and maintained a gas system in proximity to the Premiere Motel in Albuquerque, New Mexico; and, further, that the gas pipes were of inferior quality and that defendants failed to inspect and test the gasline system for leaks; also, that the pipes installed were secondhand, rusted, corroded and of inferior grade. It was then alleged that, as a result of the negligence of the defendants, gas leaked from the pipes and an explosion resulted therefrom in which the plaintiffs were injured. Subsequently, the defendant, Southern Union Gas Company, was allowed to join as third party defendant the Briner Rust Proofing Company, Inc., and Republic Steel Company, a corporation.

The two causes mentioned, subsequently, were consolidated for purposes of trial and appeal. Since on this appeal only the complaints against Briner Rust Proofing Company, Inc., are involved, we shall quote paragraph 5 thereof, as follows:

'Southern Union Gas Company entered into a contract with Briner Rust Proofing Company, Inc., whereby Briner Rust Proofing Company, Inc., was to wrap and tar certain gas pipes for the Southern Union Gas Company; that such pipes were purchased from Republic Steel Company, a corporation; that Briner Rust Proofing Company, Inc., should have found any holes in this pipe before they were wrapped and tarred, and should have discarded such pipe; that such holes should have been found by Briner Rust Proofing Company, Inc., or such holes were made after the pipe came into its possession; that it was negligent in not finding the holes or in causing the holes in the pipe. If the explosion was caused by any gas leaking from the pipes of the Southern Union Gas Company, then Briner Rust Proofing Company, Inc., was negligent as above stated and such negligence was the cause of or a proximately contributing cause of the injuries, if any, sustained by the plaintiff, John O. Betts.'

Briner Rust Proofing Company, Inc., filed its answer consisting of a general denial to the third party party complaint filed against it and later filed a motion for summary judgment, pursuant to Rule 56 of the Rules of Civil Procedure, attaching thereto affidavits of Ira B. Briner and Charles L. Slover. Southern Union Gas Company then took the deposition of Ernesto Benavidez who was in charge of the Albuquerque office of Briner Rust Proofing Company and this deposition was on file in the case prior to summary judgment. The motion for summary judgment was heard before the Honorable D. A. Macpherson, Jr., one of the district judges of Bernalillo County. At the conclusion of the hearing, the prayer of the motion was granted and an order allowing summary judgment against Southern Union Gas Company on its third party complaint was duly entered. It is from the judgment this appeal is prosecuted.

With the foregoing factual background showing alignment of the parties, we shall proceed with recital of sufficient facts to enable us to pass upon the basic question raised on this appeal. The Southern Union maintains and operates a system of gas mains in proximity to the Premiere Motel in Albuquerque, New Mexico. Certain portions of this system were to be replaced and extended by Southerin Union. Incident to such improvement, it purchased a quantity of pipe from Republic Steel Company. The pipe was forwarded to Briner Rust Proofing Company, the appellee, to be cleaned, tarred and wrapped by it under a contract between the parties.

The procedure followed by appellee in cleaning, tarring, and wrapping the pipe is outlined in the deposition of Ernesto Benavidez, assistant foreman of appellee. It consists of ten basic steps in the operation and in each of those steps the pipe which is being cleaned, tarred, and wrapped is handled either manually by employees of appellee or by machines operated by employees of appellee. After the pipe in question was cleaned and wrapped by appellee, it was transported to the site where it was to be installed. The explosion out of which plaintiffs' injuries arose occurred after installation of the pipe in question.

The factual situation before the trial court discloses that appellee, the Briner Company, was simply engaged in performing services for Southerin Union, the appellant, a customer. Such being true, and there is no dispute as to the relationship of the parties, appellee challenges appellant to show any authority for the proposition that a business concern performing services for its customer owes any duty to inspect the customer's own property upon which the services are to be performed under the factual situation here disclosed.

The duty of inspection, if any, was upon Southern Union, the appellant, on the record before the trial court, as strongly urged by counsel for the Briner Company. Southern Union's contractor for the installation of this particular gasline, Mr. Alfred F. Mermis, incidentally, also a defendant in this suit by plaintiff, testified in his deposition in the cause, a pertinent portion of which is before us on this appeal by stipulation of the parties, as follows:

'Q. You spoke of a Southern Union inspector on the job down at the wrapping plant. I take it you are familiar with the wrapping process of the plant. A. Yes.

'Q. Does Southern Union have a man that checks the pipe before it is delivered to Briner for processing? A. That bare pipe, I don't know how much they check, check some of it.

'Q. Do you know for a fact that Southern Union checks some of the pipe before it is sent over to the processing plant? A. Shipped right there to the yard and tallied and checked at the processing plant to make sure they got what they bought.

'Q. By, they, are you referring to persons from Southern Union? A. From Southern Union, yes.

'Q. Do you know of any checking or testing, visual or otherwise, that is made just before the wrapping process is started? A. I don't know whether they did this particular pipe or not, as a rule they do.

'Mr. McLeod: I move the answer be stricken on the ground he doesn't know.

'Q. By, they, you mean Southern Union? A. Yes.

'Q. As a rule they check the pipe before wrapping for imperfections or defects in the pipe? A. Yes.

'Q. You know that to be true, do you? A. Yes.

'Q. Do you know who the man is who generally does that for Southern Union? A. Don't have any particular one, assign one to a certain job and he stays with it until the job is completed.

'Q. What is he called, an inspector? A. An inspector.

'Q. He inspects the pipe both before processing and during processing and after processing? A. Yes, sir.

'Q. All three times? A. Generally stays right there with it.

'Q. Do you know if he makes an inspection of the pipe for imperfections before the coating process commences? A. Yes, sir.

'Q. What type inspection, a visual one? A. A visual one.'

The appellant, Southern Union Gas Company, contends that any leaks from its main gas system located near the Premiere Motel were made possible by the negligence of appellee, the Briner Company, in failing to detect holes or defects in the pipe installed in that system and the subsequent failure of appellee to discard pipe in which holes or defects were found or should have been discovered. It claims this failure on the part of appellee was the proximate cause of any injuries suffered by plaintiffs.

As is to be seen from a reading of paragraph 5 of the third party complaint, negligence on the part of the Briner Company is based upon its failure to find and locate any holes in the pipes before they were wrapped and tarred and, thereupon, in failing to discard the same. Specifically, this paragraph of the third party complaint alleges that any holes in the pipe either should have been found by the Briner Company, or such holes were made after the pipe came into its possession and that it was negligent in either not finding the holes, or in causing the holes in the pipe. It further alleged that if the explosion was caused by any gas leaking from the pipes of appellant, the Briner Company was negligent as above stated and that such negligence was the cause, or a proximately contributing cause, of the injuries, if any, sustained by the plaintiffs.

Counsel for Southern Union argues that under the facts shown by the affidavits referred to and the Benavidez deposition, when considered with the negligence alleged against appellee in the third party complaint, that there are material issues of fact to be decided by a jury...