Union Light, Heat & Power Co. v. Heving

• Citation: 62 S.W.2d 789,250 Ky. 223
• Parties: UNION LIGHT, HEAT & POWER CO. v. HEVING et ux.
• Decision Date: 23 May 1933
• Court: Kentucky Court of Appeals

62 S.W.2d 789

250 Ky. 223

UNION LIGHT, HEAT & POWER CO. v. HEVING et ux.

Court of Appeals of Kentucky

May 23, 1933

Rehearing Denied Sept. 26, 1933.

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by John A. Heving and wife against the Union Light, Heat &amp Power Company. From a judgment for plaintiffs, defendant appeals.

Affirmed in part, and in part reversed and remanded.

Galvin & Tracy, of Cincinnati, Ohio, for appellant.

Joseph P. Goodenough and Sawyer A. Smith, both of Covington, for appellees.

CLAY Justice.

John A Heving and Ruth Heving, his wife, were joint owners of a frame residence located on the south side of Thirty-Second street in the city of Covington, and designated as No. 119. On January 6, 1931, the house and its contents were destroyed by fire caused by an explosion of gas. Thereafter the Hevings sued the Union Light, Heat & Power Company to recover damages. The jury awarded them $6,750 for the destruction of the house and $13,428.35 for the destruction of its contents. The Union Light, Heat & Power Company appeals.

At the time of the explosion appellant maintained a gas supply main in Thirty-Second street, which had been placed there in the year 1914. The main was of steel, and about 3 inches in diameter. The street was a macadam-tarvia bound, and the main was 22 inches under ground, and about 3 feet from the curb. After the explosion the pipe was uncovered and found to be broken near one of its joints, and directly in front of appellees' property. At the time of the explosion in question, there were also other explosions in the houses immediately adjoining, and on either side of the Heving residence. The service pipe into the Heving residence was connected with the main a few inches from the break, and the gas made its way along the outside of the pipe into the cellar, and was burning after the explosion. The evidence clearly shows that the escaping gas came from the main, and it is not contended that there was any other leakage.

The grounds of negligence relied on were that the defendant did construct and maintain a defective and insecure pipe line did permit and allow the pipe to remain in bad repair, and rusted, rotten, and incapable of retaining natural gas, did permit it to become and remain dangerous for use, did fail to maintain said pipe line as to prevent the escape of gas therefrom, and did fail to inspect the pipe line and repair same before the infliction of the injuries thereinafter set out, and all of which was known to the defendant before the explosion, and could have been known to it by the exercise of ordinary care in sufficient time to inspect and repair the same before said explosion and injuries.

Appellant insists that as appellees specified the acts of negligence on which they relied, the doctrine of res ipsa loquitur is not available, and with this element of proof excluded the evidence was insufficient to take the case to the jury. Whether this view of the res ipsa loquitur doctrine is sound or not, we deem it unnecessary to determine. The evidence for appellees in brief is as follows: During the first part of September, and more than three months before the explosion the fact that gas was escaping in the vicinity of 119 West Thirty-Second street was reported to appellant. Appellees employed a plumber, who inspected the service pipes in the house on September 8, and again on September 16, and the gas which caused the explosion did not come from the service pipes in the house. After she employed the plumber, Mrs. Heving again called appellant's attention to the fact that gas was escaping. Appellant's record shows that such fact was reported from No. 119 in the month of September, and it further appears that appellant sent an inspector to the Heving house as a result of such reported leak. The fact that gas was escaping in the vicinity was also reported to appellant from the house immediately east of the Heving house. Following this appellant sent to that house an inspector, who did not locate the place at which the gas was escaping, but who claimed that the odor was from an oil refinery some distance away. On two occasions the fact that gas was escaping was reported from the house immediately west of the Heving house. Escaping gas was also reported to appellant from 114 West...