Texas Public Service Co. v. Mireles

• Decision Date: 19 February 1941
• Docket Number: No. 8970.,8970.
• Citation: 149 S.W.2d 298
• Parties: TEXAS PUBLIC SERVICE CO. v. MIRELES.
• Court: Texas Court of Appeals

149 S.W.2d 298

TEXAS PUBLIC SERVICE CO. v. MIRELES.

No. 8970.

Court of Civil Appeals of Texas. Austin.

February 19, 1941.

Rehearing Denied March 26, 1941.

Appeal from District Court, Travis County, Fifty-Third Judicial District; Ralph W. Yarbrough, Judge.

Action by E. A. Mireles against the Texas Public Service Company for value of personal property destroyed by fire claimed to have resulted from a gas explosion. Judgment for plaintiff, and defendant appeals.

Affirmed.

White, Taylor & Gardner, of Austin, for appellant.

Bryan Blalock and W. R. Smith, Jr., both of Austin, for appellee.

McCLENDON, Chief Justice.

This is a gas explosion case. The plaintiff (appellee) conducted a small business establishment in a rented building on East Sixth Street in the City of Austin. in the back room of which he and his wife lived. The defendant (appellant) was a public service corporation supplying natural gas to the inhabitants of Austin through its mains laid in the public streets. The damages sought were the value of various articles of merchandise and other personal property destroyed by a fire claimed to have resulted from a gas explosion. The trial to a jury upon special issues resulted in a verdict and judgment for plaintiff for $1,000.

Appellant's brief of 101 printed pages contains eight propositions which present in varied form but three contentions, which may be substantially stated as follows:

1. The evidence does not support the finding that the fire was the result of a gas explosion.

2. There was no evidence of negligence on the part of appellant.

3. Misconduct of the jury in considering attorney's fees in arriving at the amount of damages awarded constituted reversible error.

Appellee has filed objections to consideration of appellant's brief. These we have overruled for the reason that we believe the above three contentions are sufficiently raised to warrant our consideration.

The first two contentions challenge the sufficiency of the evidence only as a matter of law, and the pertinent evidence is to some extent interrelated. We will therefore state the evidence thereon without attempt at complete segregation and from appellee's viewpoint.

The building in question was a one story frame store building about 12 feet wide and 38 feet long. It fronted south, the front wall being flush with the property line and the floor flush with the sidewalk. There were two rooms. The one in front, the store, was about 12 by 24 feet. The rear room was about 12 by 12 feet. There was a double door in front, a door between the two rooms and a door and window at the back. There were no other openings. The building was very old, in bad repair, and there were cracks in the floor and some on the sides. It was papered, but the papering was in bad repair. The fire occurred about one o'clock p. m., August 15, 1938. Appellee had been a tenant in the building about a year. He paid $6 per month rent. The building was owned by a Mrs. Von K. The floor was approximately 18 inches above the ground at the back which was open below the floor. Immediately to the west was a barber shop, also a frame building, the east wall of which was about one foot west of the west wall of the building. The record does not disclose who owned this barber shop building. Immediately to the east was a brick building. Appellee had been a tenant in the building about a year before the fire. He had never used gas. There was a single 3/4 inch service pipe designed to supply gas both to appellee's store and the barber shop. This service pipe connected with the gas main in Sixth Street, passed under the sidewalk, thence into appellee's store through the wall (apparently the east wall), thence through the floor and west under the floor of the front of the building to the barber shop which was then using gas. There was a meter loop in the building and a meter in the barber shop. As to when or by whom this service pipe was laid, under what arrangement or circumstances or why the particular arrangement of serving two separate buildings with a single service pipe was adopted the record is completely silent. Appellee and his wife, as stated, had their living quarters in the back room of the building. They did their cooking on a small kerosene oil stove which had a supply tank holding 1/2 gallon of oil. They had just finished their noon meal when the fire occurred and were both sitting in the front room, he mending a watch and she sewing. He described the occurrence as follows:

"When I got my dinner you know and me and my wife went to the front you know and set down, and in a little while I heard the building shake like that, and the radio was there and fell, and I went out in front, out the front door and a little picture on the wall fell, and there was a flash of fire and I run out and it burned my hair too."

There was some corroboration of his testimony regarding the violence of the explosion, and some negative testimony tending to the contrary. The city fire department seems to have very promptly responded to a fire alarm and put out the fire. The damage to the building consisted in burning the wall papering, and some charring of portions of the walls and flooring.

The next morning after the fire the city gas inspector made a test of the service pipe by subjecting it to a pressure of 15 pounds. The inspector had died prior to the trial and the only evidence of the result of this test was from two employees of appellant. They each testified that the pressure gauge dropped about two pounds in twenty minutes. Under the city's regulations neither new construction nor a "repair job" could be approved if the pressure test showed a loss of as much as one-fourth of a pound in fifteen minutes under fifteen pounds pressure. Another test of the service pipe was made the same day by a master licensed gas fitter of several years' experience, who testified he made three separate tests of the service pipe. Each test was made under 15 pounds pressure and in less than four minutes the pressure gauge dropped to zero. Each of the three tests resulted the same. To quote his testimony, "I pumped it up two different times and it fell, and then I pumped it up the third time and waited and every joint on it leaked."

"Q. Every joint? A. Yes, sir, joints and fittings."

Employees of appellant testified that the main supplying the service pipe was in the low pressure area of the city and the gas pressure carried at that season was about four ounces. It was shown that natural gas (that in use) is lighter than air and therefore rises when not confined, that it is odorless, but that appellant used an odor agent that made it very offensive, and that it will explode when the air is impregnated to the extent of 5% by volume. There was testimony that with this amount of gas one could not endure the odor. Appellee testified that he did not know the smell of gas but "all the time in the early morning when I go up to the front I smell something bad you know." He further testified that at the time of the fire the front door and partition door were open but the back door and window were closed. Shortly after the fire the supply tank or container of the oil stove was found back of the building. The end was blown off. Also a partially melted aluminum coffee pot was found which had been on the stove at the time of the fire. The stove was not located.

It is the theory of appellant that the evidence excludes the hypothesis of a gas explosion upon four grounds: 1. The amount of leakage testified to by the gas fitter was insufficient to permit enough gas to escape from the service pipe with only four ounces of pressure to cause an explosion.

2. The condition of the building and openings at the time would not admit of accumulation of a sufficient amount of gas to cause an explosion.

3. Appellee and his wife could not have remained in the store on account of the odor if the air had been sufficiently impregnated to cause an explosion.

4. The evidence showed that it was an explosion of the oil stove and not a gas explosion that caused the fire.

Upon the first two of these grounds the expert testimony is in hopeless conflict. Other than employees of appellant two experts testified, Dr. Schoch of the chemistry department of the State University, and Mr. Boon, a chemical engineer of recognized and admitted technical education, experience and ability. Dr. Schoch's testimony supported each of these grounds. It is not necessary to detail it. Mr. Boon, on the other hand, testified that the amount of leakage shown by the gas fitter's tests would under a four-ounce gas pressure permit sufficient gas to escape to cause the explosion. Upon the second point, he testified that accumulation in sufficient quantities to cause an explosion would depend upon the condition of the building at the time with reference to openings. In answer to hpyothetical questions embodying conditions as testified to by appellee both with reference to the condition of the building at the time and the character and violence of the explosion, he gave it as his opinion that the explosion was from natural gas. As is usually the case when experts are interrogated hypothetically, the testimony upon this issue is quite voluminous, the questions long and involved. We do not think it would serve any useful purpose to detail it here. The above we believe is a fair statement of Mr. Boon's testimony based upon factors which the evidence will support. This evidence we believe sufficient to support the judgment as against each of the first two grounds. The questions thus presented are purely factual, and within the province of the jury to resolve.

As to the third ground, we think it only necessary to say that the explosion, from whatever cause, manifestly was in the back room, the flames therefrom bursting through the partition door. The gas accumulation must have been begun at the ceiling of the back room and gradually extended downward until...