Sutcliffe v. Fort Dodge Gas & Elec. Co.

Decision Date20 November 1934
Docket NumberNo. 42598.,42598.
CourtIowa Supreme Court
PartiesSUTCLIFFE v. FORT DODGE GAS & ELECTRIC CO.

OPINION TEXT STARTS HERE

Appeal from District Court, Webster County; O. J. Henderson, Judge.

William Sutcliffe, before his death, commenced an action against the Fort Dodge Gas & Electric Company to recover $15,000 for personal injuries received as a result of a gas explosion in the Home Café, located in Fort Dodge. On October 16, 1933, William Sutcliffe died, and, in due time thereafter, Wilbert S. Sutcliffe was appointed administrator of the estate, and accordingly became the substituted plaintiff in this case. There was a trial to a jury, which resulted in a verdict for the plaintiff, and the defendant, Fort Dodge Gas & Electric Company, appeals.

Affirmed.

Price & Burnquist, of Fort Dodge, for appellant.

Breen & Breen and D. M. Kelleher, all of Fort Dodge, for appellee.

KINDIG, Justice.

This action to recover for personal injuries was brought originally by William Sutcliffe against the defendant-appellant, Fort Dodge Gas & Electric Company, a corporation. A gas heater exploded in a restaurant in Fort Dodge on February 16, 1933, at about 12:30 o'clock a. m. William Sutcliffe at the time was an employee in the restaurant. The explosion blew the front of the building into the street, and carried Sutcliffe with it. Because of the explosion, Sutcliffe was injured. He suffered great pain and agony because of his injuries, and, on October 16, 1933, probably died of cancer of the prostate, liver, and bones.

Before his death, William Sutcliffe commenced an action against the appellant to recover $15,000 for the personal injuries growing out of, and the medical, nursing, and hospital expense incident to, the explosion. Following the death of William Sutcliffe, Wilbert S. Sutcliffe was duly appointed the administrator of the estate. Whereupon, the administrator continued as the plaintiff in said suit, and now is the appellee on this appeal.

After a trial to a jury, a verdict was returned in favor of the appellee. In due time, the appellant filed its motion for a new trial, which was overruled, and judgment was entered on the verdict. The appellant appeals from both the judgment and the ruling on the motion.

I. It is first argued by the appellant that it was entitled to a directed verdict at the close of the evidence because it did not furnish the material for, or perform the labor involved in, the installation of the gas appliances located in the building at a point before the gas passed through the meter.

Not only does the appellant argue that it did not install this portion of the gas fixtures, but also that it did not manage or control the same. Therefore, it is argued by the appellant that it is not responsible for the gas explosion which occurred at a point in the appliances before the gas reached the meter. At this point, the appellant relies upon Florence Helm et al. v. Manufacturers' Light & Heat Co., 86 W. Va. 628, 104 S. E. 59, 61, 25 A. L. R. 240, where on page 244 appears the following: “But an insuperable obstacle to recovery (in the case reported), upon the evidence adduced, is found in the fact that the alleged cause of the fracture of the fitting was the dislocation of the service pipe which the plaintiffs were bound to maintain. No duty of maintenance thereof rested upon the defendant.” Also it is said by the appellant that the following cases, by analogy or otherwise, sustain its contention at this juncture: Harter v. Colfax Electric Light & Power Co., 124 Iowa, 500, local citation 504, 505, 100 N. W. 508;Duncan v. Fort Dodge Gas & Electric Co., 193 Iowa, 1127, local citation 1131, 188 N. W. 865;Triplett v. Alabama Power Co., 213 Ala. 190, 104 So. 248;Okmulgee Gas Co. v. Kelly et al., 105 Okl. 189, 232 P. 428;Southern Indiana Gas Co. et al. v. Tyner, 49 Ind. App. 475, 97 N. E. 580;Pernick v. Central Union Gas Co., 228 N. Y. 594, 127 N. E. 920;Reid v. Westchester Lighting Co. et al., 236 N. Y. 322, 140 N. E. 712, 29 A. L. R. 1247;Schmeer v. Gas Light Co. of Syracuse, 147 N. Y. 529, 42 N. E. 202, 30 L. R. A. 653; 28 Corpus Juris 594, subd. d of section 59; 12 Ruling Case Law 909, § 49.

[1] While it is argued by the appellant that it did not build, furnish, or install the gas fixtures in question, it is contended by the appellee, on the other hand, that as to whether that is true it is unnecessary to decide, because the appellant did inspect and control and have full charge of the gas appliances which leaked and caused the explosion. Without doubt the jury could find under the record that the appellant in the case at bar had control of, and access to, the gas appliances in question. In addition thereto, the jury could find that the appellant had full charge of such gas appliances and their inspection. As a matter of fact, immediately after the explosion the appellant carried away to its place of business, and there kept, one of the appliances. Thereby the appellant indicated that it not only managed and controlled the appliances, but owned the same. The gas belonged to the appellant until it was sold through the meter to the consumer. Manning v. St. Paul Gaslight Co., 129 Minn. 55, 151 N. W. 423, L. R. A. 1915E, 1022, Ann. Cas. 1916E, 276. There it is said, reading on page 424 of 151 N. W.: “Illuminating gas is a highly dangerous and destructive product when allowed to escape or to get beyond control. Defendant is engaged in the manufacture and distribution thereof, and in so doing is required to exercise a degree of care commensurate with the great danger likely to result from its escape. The gas belongs to defendant until sold and delivered through its meter in the consumer's building, and therefore defendant (depending upon the ownership or control of the pipes) should be responsible for its care until it is so measured and delivered. * * * Whether defendant owns the pipes in which its gas is confined or not is not important. * * * They (the pipes) are not subject to the care or interference of any one but defendant.”

By way of analogy, it is said in Roberts v. Pacific Gas & Electric Co., 102 Cal. App. 422, 283 P. 353, reading on page 356: “It is ordinarily true that a company which neither owns nor controls the wires or appliances over which it merely transmits electric energy is not obliged to inspect the line, and will not be liable for injuries sustained by reason of defective appliances. (Citing cases.) * * * But when control, or even joint control, of an electric line is reserved and exercised as in the present case, the electric company will be liable for a lack of due care.” Again it was said in Daltry et al. v. Media Electric Light, Heat & Power Co., 208 Pa. 403, 57 A. 833, reading on page 836: “That the company did not construct the line at its own expense cannot relieve it from the duty to exercise care in keeping it in proper condition and repair during the period the wire carried its electric current. The ownership of the wire cannot affect the company's liability for failure to observe this duty under the facts disclosed by the evidence in this case. When charged with its electricity, the wire was in the possession and control of the company so far as concerned its duty to keep it in repair and in proper condition and position to protect those who might come in contact with it.” (Italics supplied.) To the same effect see Fedorawicz v. Citizens' Electric Illuminating Co., 246 Pa. 141, 92 A. 124;Blackburn v. Southwest Missouri Railway Co., 180 Mo. App. 548, 167 S. W. 457;Harris v. Eastern Wisconsin Railway & Light Co., 152 Wis. 627, 140 N. W. 288, 45 L. R. A. (N. S.) 1058;Clayton v. Enterprise Electric Co., 82 Or. 149, 161 P. 411;Hilson v. Pacific Gas & Electric Co., 131 Cal. App. 427, 21 P.(2d) 662; 9 Ruling Case Law 1205, § 16; 20 Corpus Juris 364, 365, § 49, subd. d.

According to the record in the case at bar, the appellant had control of the gas appliances from which the gas escaped which caused the explosion. From time to time, these appliances were inspected by the appellant's employees. Immediately before the explosion, the jury could find, William Sutcliffe, while working in the restaurant, smelled gas, made a search for it, and found that it was coming from the basement. Apparently the gas meter was located a few feet from the wall through which the gas main entered the basement. Coupled to the gas meter was a drip pipe, consisting of two parts, with a valve “in the middle of one of them.” Connecting with the drip pipe was the gas pipe coming from the alley, through the basement wall. The purpose of the drip pipe was to permit drainage when artificial gas was used. When the appellant's employees drained the pipe before the explosion, the jury could find they used the drip pipe.

John Koll, who owned the building at the time of the explosion, purchased the same from John Arnett in 1908. These drip pipes were in the building at the time John Koll became the owner thereof. Neither the owner of the restaurant, nor the owner of the building, the jury could find, thereafter made any change whatever or in any way interfered with or controlled the drip pipes. Under the record, the jury could find that the drip pipes, as well as their inspection, were entirely under the control of the appellant. Immediately after the explosion, the drip pipe was found disconnected. It had served no purpose for a period of approximately two and one-half years, because the appellant changed from the use of artificial gas to the use of natural gas. The appellant claims that the piece of drip pipe fell from its connection after its disuse, and therefore the appellant further contends that gas escaped from the broken connection into the basement, and hence into the restaurant, where the explosion occurred. We need say no more than that a jury question is presented at this point. Manifestly the appellant, a jury could find, was bound to inspect and maintain the gas appliances in a reasonably safe...

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