Sipple ex rel. Sipple v. Laclede Gaslight Co.

102 S.W. 608, 125 Mo. App. 81, 1907 Mo. App. LEXIS 77

• Court: Missouri Court of Appeals
• Decided: May 14, 1907
• Status: Published

Opinion

NORTONI, J.

(after stating the facts) — 1. The jury were amply authorized on the proof to find the deceased exercised due care on his part. He retired as he had a right to do, in his private apartment, which at that time was devoid of odor and gave no indication that the gas was then present or that it would likely reach and permeate the atmosphere in the room.

There was no direct proof introduced on the part of the plaintiff tending to establish any specific neglect of duty on the part of the defendant with respect to the defect or crack in the main from which the gas escaped, the entire proof on this question being that by the odor, gas was discovered to be escaping in the vicinity about noon on Saturday and that when the leak was finally ascertained and precisely located on the following day, it was found to have been caused by a crack in defendant’s four-inch gas main, located in the street in neár proximity to the room in which deceased was asphyxiated. Defendant’s superintendent of street department, on behalf of plaintiff, testified: “The crack was a new crack. It could, I think probably have existed a few days.” This was all the material proof on that score. On this state of the case, it is earnestly insisted on behalf of the defendant that the court should have granted its request and directed a verdict acquitting it of negligence. Now it is true plaintiff’s action predicates upon the negligence of the defendant. The primary omission of duty assigned in the petition is that defendant negligently permitted its main to become defective, whereby gas escaped, and it is very true, the law with respect to injuries entailed by escaping gas, when the suit is founded upon defendant’s alleged neglect of duty with respect thereto, it is said, is not different from the law of negligence in other cases, in so far as it devolves upon the plaintiff the burden of establishing by proof that the defendant failed in the exercise of due care, concerning the act of which complaint is made. [Holly v. Boston Gas Light Co., 8 Gray (Mass.) 123; Washington Gas Light Co. v. Eckloff, 4 App. Cases (D. C.) 174; Thornton on Law Concerning Oil and Gas, sec. 610; 14 Amer. & Eng. Ency. Law (2 Ed.), 938.] While this proposition is abundantly sustained by the authorities, it seems to be much relaxed by the courts in its practical application in cases where injuries have resulted from escaping gas. It is denied, however, by the Court of Appeals for the District of Columbia, in Washington Gas Light Co. v. Eckloff, 4 App. Cases (D. C.) 174, that the doctrine of res ipsa loquitur applies. We have been unable to discover a Missouri case in point, in matter of fact, although the judgment of both this court and the Supreme Court in Paden v. Van Blarcom, 181 Mo. 117, 74 S. W. 124, 79 S. W. 1195, 100 Mo. App. 185, is identical in principle with the views which we entertain on the question now in judgment. Prom a careful study of the gas cases elsewhere, and with due attention to the judgment of the soundest courts and opinions of the ablest judges in the country, we have been able to deduce and ascertain the rule that in view of the highly dangerous character of the commodity being transmitted by the gas company through its mains, and because of its well-known tendency to escape therefrom through the earth and permeate the atmosphere as an element not only entailing possible but probable death and disaster, the principle applicable to its transmission and conduct is that the producer or transmitter of the gas, is required to conduct his operations in that behalf with a very high degree of care and skill. It being an extraordinarily dangerous element, an extraordinarily high degree of skill and care is exacted by the law of those conducting it; that is to say, the rule of ordinary care with respect to its transmission is adjusted, in view of its known dangers and probable entailments, by a standard of care proportionate to the probable dangers' which usually attend the delicacy, difficulty, nature and dangers of the business as natural conse- ■ quences (Thornton on Oil and Gas, secs. 601, 302) even though this degree of care might extend the requirement in that behalf slightly beyond the general rule with respect to the exercise of ordinary care to avoid such dangers only as are to be reasonably anticipated in the conduct of a particular business. [See Oil City Gas Co. v. Robinson, 99 Pa. St. 1; Paden v. Van Blarcom, 181 Mo. 119, 100 Mo. App. 195; Thornton on Oil and Gas, secs. 601, 602.] And therefore, under the influence of this principle, the mains being made to contain gas and conduct it safely, it was defendant’s duty to exercise that high degree of care mentioned to see they were constructed in proper form and of proper materials; that they were laid in the earth at a proper depth and in á suitable manner so as not to be affected by the frost, and kept in proper repair for the purpose intended, and upon the application of the sound and just principle stated, the courts have universally adjudged, in the absence of an intervening agency appearing, which nega-. tives the idea of negligence on the part of the gas company, that prima facie proof is made on the question of negligence by showing the break or leak in the main and consequent escape of gas which operated proximately to cause the loss. Such proof is sufficient to sustain the inference of negligence by the jury. The following authorities are in point: Smith v. Boston Gas Light Co., 129 Mass. 318; Finnegan v. Fall River Gas Co., 159 Mass. 311; Carmody v. Boston Gas Light Co., 162 Mass. 539; Greaney v. Holyoke Water & Power Co., 174 Mass. 437; Chisholm v. Atlanta Gas Co., 57 Ga. 28; Butcher v. Providence Gas Light Co., 12 R. I. 149; Mose v. Hastings, etc. Gas Co., 4 Foster & Finlason’s Reps., 324; 14 Amer. and Eng. Ency. Law (2 Ed.), 936-938-940, and a great wealth of authorites cited in the notes; Thornton on Oil and Gas, secs. 601-663.

It would seem from some cases that the courts have almost applied the doctrine of res ipsa loquitur when there was no proof of negligence other than the mere breaking of the main; but, as said before, the propriety of applying this doctrine is expressly denied by the Court of Appeals of the District of Columbia in the case cited supra, and the Supreme Court of Massachusetts says the true rule in dealing with the question is as one of negligence, as follows: “As a matter of law, the breaking of a pipe and the consequent escape of gas, proved negligence. The ■true ride is, that a jury may find negligence from those circumstances, 'but it is for them to say whether they will do so; and if there are other circumstances bearing on the question, they must weigh them all.” [Carmody v. Boston Gas Light Co., 162 Mass. 539-542.] The question was properly referred to the jury.

There is another feature of the case made bv the proof which amply justified the court in submitting the issue of negligence to the jury, it is shown notice of the leak of gas was conveyed to defendant about noon on Saturday; that in the usual course, -an inspector reached the scene about seven o’clock that evening, and finding himself unable to locate and remedy the defect, notified the proper officer, who in turn, dispatched the “trouble wagon” and men for that purpose. These men reached the .scene about ten o’clock at night, commenced exeavating and continued thereat until about two o’clock a. m., when they suspended operations until seven o'clock Sunday morning. It is well settled that when the gas company has received actual notice of a leak in its mains, great diligence is required in locating the cause and applying a remedy. Of course this must follow in consequence of the highly dangerous character of the commodity, and unless it is in a case of great calamity or emergency, such as an earthquake, explosions, the conflagration of a portion of a city, or something tending to produce many leaks at the same time, it is said that there should always be men in readiness for such purpose, and action looking to repairs should be had with promptness. [Mose v. Hastings, etc., Gas Co., 4 Foster & Finlason’s Reps. 324; Hunt v. Lowell Gas Co., 3 Allen (Mass.) 418; Consolidated Gas Co. v. Crocker, 82 Md. 113; 14 Amer. and Eng. Ency. Law (2 Ed.), 910; Thornton on Oil and Gas, sec. 616.] The facts gleaned from the record before us and above set out certainly did not show that degree of diligence required by the law in the case of escaping gas after actual notice of the leak. The law requires promptness and dispatch to fill the measure of ordinary diligence in such cases, and there was certainly no such diligence shown by the proof. The learned trial judge properly referred the issues to the jury.

2. At the instance of the plaintiff, the court gave the following instruction:

“The court instructs the jury that if you find and believe from the evidence that defendant owned and controlled the gas mains, pipes and apparatus mentioned in the petition and transmitted gas through the same, and that on the 15th day of January, 1905, in the city of St. Louis, Missouri, part of said main, pipes or apparatus was defective and in a leaking condition and gas was escaping therefrom; that at said time one George Sipple, the father of plaintiff, occupied a room in house No. 2704 Chippewa street, in close proximity to snch defective or leaking main, pipe or apparatus, if you so find, and that said room became filled with such escaping gas, and that in consequence said Sipple died by asphyxiation; and if you further find that defendant knew of such defect or leak, if any, or by the exercise of ordinary care on its part might have known thereof, and after knowing thereof, by the exercise of ordinary care, could have avoided the injury sued for, and failed to do so, then defendant is liable and plaintiff is entitled to recover.”

It is asserted that this instruction permits a recovery for the negligent omission to prevent the escape of gas after defendant knew, or by the exercise of ordinary care might have known, of the leak, when the act of negligence complained of in the petition is in negligently permitting the mains to become defective. We are not inclined to concur in the construction placed upon plaintiff’s petition by the learned counsel. It is true the primary negligence charged therein is as stated, but in a subsequent clause, it alleges pointedly that “defendant or its servants in charge thereof knew, or by the exercise of ordinary care might have known of the defective, worn-out and leaking condition of said main,” etc. Now the proof was uncontroverted that defendant and its servants did know of the defective condition of the main, having been notified at noon on Saturday of the leak and the instruction therefore was properly predicated upon both the petition and proof. The remaining criticism of this instruction advanced in the briefs is sufficiently answered by what has been said under point one in the opinion.

3. The decree divorcing plaintiff’s mother from his. father was introduced in evidence and from this appears the court awarded the care and custody of the infant plaintiff to his mother. In view of this decree, the instruction of the court on the measure of damages to the effect that plaintiff wag entitled, during the period of his minority, to the care, education, maintenance and support of his father, is assigned as error. It is argued that the care and custody of the plaintiff having been awarded to the mother, the plaintiff was not entitled to the “care and education” of the father, and the common law doctrine that there is no obligaton other than a moral duty, that is, no legal duty resting upon the father to educate the child, is cited. [Tiffany’s Personal and Domestic Relations, sec. 118.] Whatever may be the rule at common law, the courts of this State adhere to the doctrine announced by the Supreme Court of New York on the subject, in Tilley v. Railroad Co., 29 N. Y. 252, and McIntyre v. Railroad Co., 37 N. Y. 287, to the effect that the loss of a parent’s care in the education, maintenance and pecuniary support of the child, has, in addition to their moral value, an appreciable pecuniary valne tending to improve and perfect the child for not only a more useful future from social considerations, but a more prosperous career in the business and commercial world as well. [Stoher v. Railroad, 91 Mo. 509, 4 S. W. 389; Gamache v. Johnston Tin Foil, etc., Co., 116 Mo. App. 596, 92 S. W. 918.] This feature of the instruction is therefore not subject to the criticism.

As to so much of the criticism which deals with the question of the care of plaintiff having been awarded to the mother, it may be said the plaintiff under our law, had the right to the care of his father notwithstanding the divorce decree (Rankin v. Rankin, 83 Mo. App. 335), and this right could not be divested by a decree to which he was not a party. Indeed, the father, under the decree of divorce, may not have had the right to the care and custody of the plaintiff, and even though that decree adjusted the rights of the father and mother with respect to his care and custody, yet the plaintiff’s right with respect to care and support as against the father was in no sense precluded by a judgment to which he was not a party. This proposition is so elementary as not to require the citation of authorities.

This instruction further directed the jury: “You may award him any sum, not exceeding $5,000, that you may deem fair and just, having reference to the necessary injury, if any, resulting to plaintiff by reason of the death of his father, George Sipple.” The criticism is that it is a general direction permitting the jury to-roam in the field of conjecture, inasmuch as no rules are therein contained directing attention to the proper elements of loss. This general instruction has been frequently approved when it sufficiently follows the statute by confining the recovery to an amount that is “fair and just” the jury “having reference to the necessary injury resulting therefrom.”' [R. S. 1899, sec. 2866.] And the doctrine is, if the defendant desires a more specific direction on the subject, it becomes its duty to request it. [Barth v. Railway, 142 Mo. 535, 555; Gamache v. Johnston Tin Foil Co., 116 Mo. App. 596; Stoher v. Railway, 91 Mo. 509.] It appears that the court gave, at the instance of defendant, five separate instructions in the measure of recovery in which correct rules on the subject were set forth, and the jury were therefore possessed of ample information of what were and what were not proper elements of damage. In view of this record, the instruction given at the instance of plaintiff, even though incomplete, would be harmless error.

4. Defendant’s requests confining the recovery to mere nominal damages, were properly refused, even though the evidence failed to show the amount plaintiff’s father was earning at the date of his death. [Stoher v. Railway, 91 Mo. 509.]

The verdict of two- thousand dollars was not excessive. The case was well and carefully tried. Finding no reversible error, the judgment will be affirmed. It is so ordered.

Bland, P. J., and Goode, J., concur.