Wilson Gas Utilities Corporation v. Baker

• Decision Date: 17 January 1939
• Citation: 276 Ky. 368
• Parties: Wilson Gas Utilities Corporation v. Baker.
• Court: United States State Supreme Court — District of Kentucky

276 Ky. 368

Wilson Gas Utilities Corporation v. Baker.

Court of Appeals of Kentucky.

January 17, 1939.

1. Gas. — An instruction respecting gas company's duty before releasing gas into pipe leading into building was erroneous where franchise did not impose upon company obligation to inspect service lines and the defective gas pipe was installed by owners of building where explosion occurred and not by the company.

2. Gas. — Instruction that gas company had duty before releasing gas into pipes leading into building to exercise such care as dangerous character of gas and attending circumstances would demand "of an ordinary person" engaged in same kind of work to prevent escaping gas from any unprotected openings in pipes in the building was indefinite because of the quoted phrase.

3. Gas. — Instruction that if gas company released gas into pipes leading into building and gas flowed into pipe leading into plaintiff's offices and escaped from an unclosed opening, gas company failed to observe and perform duty required of it was erroneous where the defective gas pipe was installed by the owners of the building and not by the company.

4. Gas. — To hold gas company liable for explosion, it was necessary that the condition of the gas pipe which was installed by owners in the building should have been communicated to the company thereby putting it on notice that gas pipe was in unsafe and unfit condition making it dangerous to release gas into pipes leading into building without first making repairs.

5. Principal and Agent. — A principal is affected with constructive

knowledge regardless of his actual knowledge of all material facts of which agent receives notice or acquired knowledge while acting in course of his employment and within apparent scope of his authority, even though agent may fail to inform his principal thereof.

6. Gas. — In tenants' action against gas company for injuries sustained in gas explosion resulting from escape of gas from open pipe in building, to charge gas company with knowledge that gas pipe in building was unsafe and uncapped, such fact must have been communicated to an agent of the company whose business and scope of authority was to look after and attend to such matters.

Appeal from Perry Circuit Court.

J. WOODFORD HOWARD, W.P. MAYO and CARL P. KING for appellant.

NAPIER & NAPIER for appellee.

OPINION OF THE COURT BY JUDGE PERRY.

Reversing.

This appeal seeks a reversal of a judgment rendered against the appellant, Wilson Gas Utilities Corporation, in the Perry Circuit Court, and in favor of the appellee, Dr. Boyd B. Baker, for damages for personal injuries suffered by him in a gas explosion occurring in his offices, alleged to have been caused by the negligence of defendant in turning gas into the building when having knowledge of the defective or uncapped condition of the gas pipe in Dr. Baker's office.

Upon trial of the cause, the jury after hearing the evidence, instructions of the court and argument of counsel, returned a verdict for plaintiff, awarding him damages in the sum of $10,000.

Challenging the propriety of this verdict and judgment entered thereon, appellant seeks its reversal by an assignment of more than twenty errors alleged committed upon the trial.

The facts as disclosed by the record are that Dr. Baker, at the time of the alleged explosion in his offices on the morning of October 11, 1935, was occupying and using as such two rooms on the second floor of the combined office and apartment building, located on Main Street in the City of Hazard, Kentucky, which belonged to Mrs. Kate Johnson and her daughter, Mrs. Anna Jones, from whom he had rented these rooms. Mrs. Johnson and Mrs. Jones had owned the building for more than twenty years.

It also appears that the City of Hazard had, in April, 1929, sold and granted to J.T. Justice a twenty year franchise to construct and maintain a system of pipe lines for the conveyance, distribution and sale of gas, under the terms and restrictions therein stated, and that this gas system had been duly constructed and since operated by its successive owners in the city.

Among the restrictions set out in the franchise and under which appellant claims it was not required to inspect the gas pipes, constructed and installed in the city's buildings by their owners, is the following:

"The Company shall not be required to bear the expense of making service connection from their main lines located at the curb or in the alley, as the case may be, to the property of the consumer, but shall have the right at the time such connection is being made to thoroughly inspect the service line and meter. Then and thereafter the Company shall at all times have the right to inspect such service lines, meters and to read and repair the same when necessary but shall not be obligated to do so."

Pursuant to such provision and others contained in the franchise, made for and on behalf of the consumers of gas in the City of Hazard, the gas company had only installed pipe from its main lines to the property line where the gas was turned into the meter of and accepted by the consumer. Further, the property owners were required to pipe their own buildings and extend service lines to the metering point, where gas was received for the entire building. The gas company furnished the piping from its main line up to the meter installed by the consumer, but beyond the metering point it appears the company exercised no control. Such, it is alleged, is now and has been the customary practice of all parties affected by this franchise contract.

The owners of the Johnson building, wherein Dr. Baker had his offices at the time of the explosion, had it piped as stated, long before the sale and conveyance to the appellant of the franchise and gas system in January, 1934, by its predecessor, the Kengreen Gas Utilities Corporation.

On October 11, 1935, there occurred an explosion in one of the office rooms in the Johnson building then leased and occupied by Dr. Baker, who claimed it was caused by the gas having that morning been negligently turned into the building by the appellant without first inspecting or repairing the condition of its gas pipes, although plaintiff testifies the company then had notice of there being a defective or uncapped gas pipe in his office, and due to which, he was, by the resulting explosion of the gas escaping through it, seriously and permanently injured.

Thereupon, this action was brought by Dr. Baker against both the owners of the building and the gas company to recover damages for his alleged injuries caused by the explosion.

By the petition the above stated facts were in substance alleged and, further, that "many months prior to the 11th day of October, 1935, the defendants, Anna M. Jones and Kate F. Johnson, had installed in the building * * * certain gas pipes for conducting gas to the tenants in said building, and that said pipes had been connected with the main gas lines of the defendant, Wilson Gas Utilities Corporation, but that several weeks before the 11th of October, 1935, the tenants in said building had ceased to use gas," when the gas company had disconnected the gas from the meter in said building, but on the above date it undertook, without first inspecting the gas lines in the building, to turn on the gas and connect the lines in the building with its main lines; that neither of the defendants had used ordinary or any care in inspecting their said lines but had negligently and carelessly left uncapped and open in plaintiff's rooms one of said gas lines, through which gas escaped when it was cut into the building; and that this gas, thus turned on and escaping through the uncapped pipe, accumulated in his rooms with the result that when a patient in the office lighted a cigarette, the gas caught fire and exploded, thereby inflicting the various alleged severe injuries and damages upon the plaintiff, for which he asked in his petition to recover against defendants, sums aggregating $27,000.

A general demurrer to this pleading was sustained as to plaintiff's lessors, the defendants, Mrs. Johnson and Jones, but that of the gas company was overruled. The company's answer was thereupon filed whereby it traversed all the material allegations of the petition.

An amended petition was then filed, alleging in part that:

"The defendants named in the * * * petition herein negligently and carelessly failed to inspect the pipe lines extending into plaintiff's office room * * *; that these defendants negligently and carelessly, and without exercise of ordinary care, turned its flow of gas into said building without defendants inspecting the gas pipe line extending into plaintiff's office room," and that "these defendants knew or could have known in the exercise of ordinary care, before turning its gas into said pipe line extending into his said office room, that the pipe line extending into his office room was uncapped."

An answer was filed to the petition as amended, first traversing its material allegations and by a second paragraph affirmatively pleading plaintiff's contributory negligence.

Also the general demurrer of the defendant building owners, having been extended to the petition as amended, was sustained, when by agreement it was ordered that all affirmative matter not controverted in the pleadings be controverted of record.

Issues were joined by these pleadings.

In support of plaintiff's claim, his testimony and that of his witnesses is to the effect that he leased as offices and moved into the two rooms in the Johnson building on October 1, 1935, just after they had been vacated by former tenants who had used the rooms for living quarters; that they had maintained in one of the rooms a gas range, which, upon their vacating these rooms, had been disconnected from the gas pipe, which was left open and uncapped; and that such was the pipe's uncapped condition when Dr. Baker moved into the rooms.

Plaintiff...