Opinion
November 30, 1949 —
December 30, 1949.
APPEALS from judgments of the circuit court for Fond du Lac county: ROLAND J. STEINLE, Circuit Judge, Presiding. Affirmed.
J. E. O'Brien of Fond du Lac, for the appellants.
For the respondent there was a brief by Schubring, Ryan, Petersen Sutherland of Madison, and John P. McGalloway of Fond du Lac, and oral argument by Mr. R. J. Sutherland and Mr. McGalloway.
Actions commenced August 6, 1946, by Ethel Shaw, Dorothy Schwersinske, as general guardian of Gary and Gloria Schwersinske, and Doris Schwersinske Ritchie, as administratrix of the estate of Herbert Schwersinske, deceased, against the Wisconsin Power Light Company to recover damages for the wrongful deaths of Herbert and Lawrence Schwersinske and Estella Shaw. From judgments in favor of defendant entered January 4, 1949, dismissing the complaints, plaintiffs appeal.
The deceased persons were asphyxiated while asleep in their one-story house in Fond du Lac, Wisconsin. The house did not have a foundation and stood on posts. These posts were rotted and the house had settled or sagged. At one time gas pipes had been installed under the house, but for eighteen years no gas had been supplied to the house and the meter had been taken off the pipe. However, the gas was not shut off at the curb and remained in the pipes beneath the premises. Defendant gas company had made no inspection of the premises since gas service had been discontinued eighteen years before.
During the night of March 27, 1946, one of these pipes under the house was broken. The gas escaped and seeped through the floor into the house killing the occupants.
Plaintiffs, Dorothy Schwersinske and Doris Schwersinske Ritchie, were the divorced wives of Lawrence and Herbert Schwersinske, respectively. Each had two children and received alimony under the divorce judgment. Each asked damages to compensate for the loss of the alimony in supporting the children. Plaintiff, Ethel Shaw, was the mother of Estella Shaw. She asked damages to compensate her for the loss of her daughter's support.
Plaintiffs alleged that defendant was negligent in failing to property install, inspect, maintain, remove, and shut off the gas pipes. The defendant denied liability.
A jury was waived, and the cases were tried to the court. The court found that there was no proof of faulty installation, that the pipe in which the break occurred was not defective, and that the break was due to the settling or sagging of the house which caused pressure on the pipes. He further found that there was no proof that an inspection a day or two before the break would have disclosed the danger of pressure on the pipes from the settling of the house. He concluded, "as a matter of law, . . . there is no legal responsibility on the part of the defendant for the death of plaintiffs' decedents, and . . . judgment dismissing the complaints must be entered."
By stipulation the cases, which had been consolidated for trial, were argued together on appeal.
The only question, which it is necessary to consider, is whether the defendant was negligent in not turning the gas off at the street and in allowing it to stand in the pipes on deceaseds' premises.
The rule which applies to situations such as this has been discussed in opinions of courts and in texts. It has been held that failure of a gas company on discontinuance of the use of its gas by a householder or patron to cut off the gas at the street so as to keep it from the service pipe does not constitute negligence per se. There may be circumstances imposing a duty to inspect because a gas company is expected to take every reasonable precaution suggested by experience and usual practice. It must install pipes and fittings of good material and workmanship with skill and care and must inspect its pipes and promptly repair them when they become unsound. See 24 Am. Jur., Gas Companies, p. 680, secs. 20 to 50, which treats with duties and liabilities of gas companies. Also 38 C. J. S., Gas, p. 738, sec. 42, which deals with negligence in turning gas on or off, and Canfield v. Gas Co. (1917), 80 W. Va. 731, 93 S.E. 815; Anno. L.R.A. 1918A, 808.
The trial court found, and his finding is supported by the evidence, that the pipe in which the break occurred was not defective and that the break was caused by the settling of the house due to a rotten post. Therefore, inspection, maintenance, or repair of the pipes by the defendant would not have prevented the accident.
While defendant can be held to a duty to keep the pipe in which its gas is stored in good condition, it cannot be required to make an inspection of the premises to determine whether they are being kept in safe condition without any knowledge that they may be a source of danger. There was no odor of gas prior to the death of the occupants of the house; there was no sign that the house was sagging and exerting pressure on the gas pipes under it. In fact, as pointed out by the trial court, there was no proof that an inspection even a day or two before the break would have disclosed the likelihood of pressure on the pipes from a sagging of the house. Because of such circumstances defendant was under no duty to inspect the premises to discover a possible dangerous condition. The rule has been stated as follows:
"It is of the essence of negligence that the person charged should have knowledge that there was a duty for him to perform; knowledge of the facts out of which the duty to act arises is essential; in order that an act or omission may be regarded as negligent, the person charged must have knowledge or ought to have known from the circumstances that the act or omission charged involved danger to another." Moen v. Madison Railways Co. (1929), 199 Wis. 168. 170, 225 N.W. 821.
Any other rule would necessitate the examination at frequent intervals of all buildings in which gas is used. It would be a practical impossibility.
The plaintiffs cannot recover the damages they seek because there is no evidence that the defendant failed to perform any duty imposed on it by law.
By the Court. — Judgments affirmed.
While gas service was being furnished to the premises at 300 West Division street in the city of Fond du Lac, the defendant and its employees knew the condition of the premises. It learned that the dwelling thereon did not rest upon ordinary foundations but was supported by wooden posts; that there was no basement under the building; that it was located within a flooded area of the city, and that the service pipes were directly below the floor joists, and it should have realized that frost might heave the pipes or flooding might cause the house to settle in such a manner as to break the pipes and permit a gas leak.
All of the authorities recognize that gas is a dangerous substance, and if it is permitted to leak in or about a dwelling it will inevitably lead to asphyxiation or damage by an explosion. It is my opinion that the defendant, having elected to store its gas in the service pipes under this dwelling rather than to shut it off at the curb line or to disconnect it at the main, assumed the duty of inspecting the same at sufficient intervals to see that damages were not done to other people. The authorities amply support this view.
"A higher degree of care and vigilance is required in dealing with a dangerous agency than in the ordinary affairs of life and business, which involve little or no risk of injury to persons or property. Therefore, in view of the highly dangerous character of gas and its tendency to escape, a gas company must use a degree of care to prevent damage commensurate to the danger which it is its duty to avoid, even though this degree of care may 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 reasonably to be anticipated in the conduct of a particular business." 38 C.J.S., Gas, p. 732, sec. 42.
"It has been held that failure of a gas company, on discontinuance of the use of its gas by a patron, to cut it off at the street valve, so as to exclude it from the service pipe, and cutting it off at the meter valve, so as to leave it stored in the service pipe up to the meter valve, do not constitute negligence per se. Since the gas, in such case, belongs to the gas company, however, the law imposes on it the duty to exercise care in the storing thereof, to the end that injury may not result, and it is bound to inspect, maintain, and repair the service pipe as long as it is so used." 38 C.J.S., Gas, p. 738, sec. 42.
A case very similar to the one in question is Castner v. Tacoma Gas Fuel Co. (1923), 123 Wn. 236, 212 P. 283, 126 Wn. 657, 219 P. 12. In that case a dwelling house was demolished by an explosion on January 27, 1921. Gas was installed in the house in 1911. Gas service was discontinued there in May, 1913, at which time the meter was removed. Gas was not ordered or used by the occupants of the house thereafter. In that case the service pipe extended under ground from the main in the street and was brought to the surface of the ground under the house. The meter bar to which the meter was attached was installed under this corner of the property. When the meter was removed the gas was shut off ahead of the meter standard and not at the curb. In that case the court quoted with approval the rule laid down in Koelsch v. Philadelphia Co. (1893), 152 Pa. 355, 362, 25 A. 522, where it said:
"While no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say in general terms that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken. This would require in the case of a gas company not only that its pipes and fittings should be of such material and workmanship, and laid in the ground with such skill and care, as to provide against the escape of gas therefrom when new. but that such system of inspection should be maintained as would insure reasonable promptness in the detection of . . . leaks that might occur from the deterioration of the material of the pipes, or from any other cause within the circumspection of men of ordinary skill in the business."
In that case it was further stated ( Castner v. Tacoma Gas Fuel Co., supra, p. 241):
"`A gas company is bound to inspect for discovery of leaks due to defects in materials, deterioration of pipes and valves, displacement or dislocation by accident, the weather, and the like, because it knows these things often occur.'"
In the Castner Case, the gas company had made no inspection of the pipe after the removal of the meter in 1913. There was a dispute in the evidence as to the ownership and control of the service pipe, but the court held that to be immaterial as the gas company was using the pipe at the time of the accident as a storage place for its product.
In the case of Nephew v. Consumers Power Co. (1937), 283 Mich. 12, 17, 276 N.W. 881, it was stated:
"In view of the dangerous character of gas such as that sold by defendant, and its tendency to escape, it was the duty of defendant to use a degree of care to prevent injury and damage commensurate with the danger which it was its duty to avoid. Fleegar v. Consumers Power Co. 262 Mich. 537, 247 N.W. 741; 28 C. J. p. 591. If it failed to exercise this degree of care, and injury and damage resulted by reason of such failure, it is liable. 12 R. C. L. p. 905.
"Defendant may not escape liability because the piping and shutoff valve on the premises were paid for by the owner the property where decedent lived and died. This does not excuse defendant from its failure to exercise the degree of care to avoid injury and damage above stated. Defendant cannot avoid liability because it did not own the pipes and shutoff valve on the premises where they were installed. Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 16 Sup. Ct. 564, 40 L. Ed. 712."
The duty of a gas company under the circumstances here has not been determined in Wisconsin. Because of the growing population and the increase in the use of gas it would be well to adopt the rule cited by the above authorities, and require the gas company, when service is discontinued, to shut the gas off at the main or at the curb, or to assume the duty of inspecting the service pipes at sufficient intervals to assure that no damage will result from a gas leak. The company should not be required to cut off the gas at the main or curb in the case of a temporary discontinuance of service, but when it becomes apparent, as it did in this case, that gas would not be used upon the premises for a period of several years, it should meet its responsibility to the public. The added responsibility on the part of the gas company is slight, and it can reasonably be required to take steps that will save lives and property.
I am authorized to state that Mr. Justice HUGHES and Mr. Justice MARTIN concur in this dissent.