Opinion
34202.
DECIDED OCTOBER 17, 1952.
Damages; from Baldwin Superior Court — Judge Carpenter. June 20, 1952.
Erwin Sibley, Harris, Russell, Weaver Watkins, for plaintiff in error.
Marion Ennis, contra.
1. The evidence authorized the verdict and the court did not err in overruling the amended motion for a new trial.
( a) If the jury did make a finding from an inference on an inference, such finding was not too remote.
( b) The facts as presumably found by the jury were not consistent with either of two opposing theories so as to render a verdict for the plaintiff erroneous.
DECIDED OCTOBER 17, 1952.
Miss Alma Mae Gholston sued the Atlanta Gas Light Company for damages allegedly due to the defendant's negligence. Her amended petition alleged substantially: that on May 27, 1951, and prior thereto, the plaintiff was the owner of a brick store building located on the northwest corner of North Jefferson and East Pine Streets in Milledgeville, Georgia, and on said date said building became a total loss by reason of an explosion due to the sole negligence of the defendant in maintaining and operating its gas distribution system; that on said date the defendant owned, maintained, operated and had exclusive control over a system of pipe, along, across and under that portion of North Jefferson Street that lies north of East Pine Street and south of East Railroad Street in Milledgeville, for the purpose of distributing its gas; that in disregard of its duty the defendant negligently, unlawfully and in total disregard of the safety of the plaintiff's property operated and maintained its service line in Jefferson Street running from its main line on said street to the plaintiff's property in such a manner that it permitted its gas to escape for more than twelve months prior to May 27, 1951, at a point approximately three feet east of plaintiff's building, thereby causing the total destruction of such building, as more fully set out hereafter; that the gas so leaked for more than twelve months prior to May 27, 1951, with the defendant's knowledge, for the plaintiff's tenant had on or about February 20, 1950, reported to Thomas Johnson and Carl Vinson, service and repair men, agents and employees of the defendant, that the defendant's gas was leaking at said point, at or near the defendant's meter which was located between the eastern wall of the plaintiff's building and the west edge of the sidewalk on North Jefferson Street, and that the tenant so reported the situation to said agents at least once a month each and every month thereafter until May 27, 1951; that said agents and employees are the skilled and experienced service and repair men of the defendant and it is within their authority and duty as such to inspect, investigate and repair any leaking or damaged service line of the defendant; that after said notice had been given the defendant, it did not make any effort whatever to determine where its gas was leaking, what was causing the leak, or in what amounts the gas was leaking, and did not use any precautionary measures whatever to prevent its gas from continuing to escape; that each time the tenant complained of the leak said agents would inform him that he was not paying for the gas that was leaking, in that it was leaking before it got to the meter, that it was just the pressure on the meter from the high-pressure line going down Jefferson Street to Oconee Clay Products Company that was causing the gas to escape, and that it was not causing any harm and that the leaking gas would not damage anything and that he should not worry about it; that the plaintiff had no control over said distribution system but did all that she could to prevent damage to her property but being unskilled and untrained in such matter she knew only to rely on the trained and skilled employees of the defendant; that the service line serving the plaintiff's property was connected to a main line of the defendant carrying a pressure of more than sixty pounds per square inch; that the defendant's service line was connected to its main line on the east side of North Jefferson Street, and extended to the west side of said street and under the sidewalk; that at or near the sidewalk the service line was connected to a "tee" that was located between the edge of the sidewalk and the defendant's meter that abutted the eastern wall of the plaintiff's building; that said tee was defective in that there was an opening in it which permitted the deadly and explosive gas to escape; that the defendant was negligent in not using care and diligence in discovering the defective tee and repairing or replacing it after having been notified of the escaping gas; that the tee was approximately six inches underground and that from the tee the defendant's service line extended under the ground to a point approximately six inches from the eastern wall of the plaintiff's building, where the service line was connected to the defendant's meter that was above ground and immediately adjacent to the eastern wall of the plaintiff's building; that from the meter an inlet entered the building through the brick wall about six inches under the ground level, the net clearance around the inlet pipe and the wall being one-half inch; that the footings of the building's wall were about two feet below the level of the ground outside the building and the floor inside was at ground level; the floor consisted of concrete slabs nine feet in width and forty-two feet in length; the seams separating the slabs of concrete ran parallel to the wall on which the meter was mounted; the slabs were separated one-half inch in width by roofing felt between them; in several places the seams had widened to about an inch in width, due to stresses and settlement of the floor; the floor varied from three to four inches in thickness and rested on deep layers of hollow tile and broken brick; there were large and deep channels in the bedding of brick and tile directly below the seams between the slabs that extended from the seals to the wall of the building on which the meter was mounted; that the gas escaped from the tee and entered the plaintiff's building around the space between the inlet running from the meter into the building, and also diffused through the loose, dry and porous soil, passing under the footings of the building through the hollow tile and broken brick under the floor and entered the interior of the building through the longitudinal cracks or seams between the slabs of concrete flooring; that the gas entered the building during the night of May 26, 1951, in sufficient quantity for it to ignite and explode when the electric motor in the refrigerator or drink box located in the building began to operate from its automatic starting switch, thereby causing the gas flooding the building to ignite and explode at 8:30 a. m. on Sunday morning, May 27, 1951, and completely demolishing and destroying the plaintiff's building and its contents; that immediately following the explosion there was a flame burning brightly at the defendant's tee and on top of the ground near the defendant's meter at the outside wall of the remains of the building; that this flame was propagated from inside the building to the outer wall and to the tee following the path of seepage from the tee into the building; that from the facts alleged and notice thereof by the defendant, it could have reasonably anticipated that such would cause an explosion and damage and destroy the plaintiff's property; that the defendant, on or about the 15th of May, 1951, at the request of the tenant, cut off the gas service in the defendant's meter and from the plaintiff's building, and at the time of the explosion the gas did not and could not have entered the building through the meter and the gas heater, which was the only unit connected to the defendant's service line in the plaintiff's building; that the defendant was negligent in the following particulars: by permitting its deadly, dangerous, inflammable and highly explosive gas to continue to escape near the plaintiff's property after having been duly notified of same; in failing to inspect, examine and use due caution, skill and care in maintaining its service line as described; in failing to replace the defective tee; in failing to inspect, maintain and repair its service line and distribution system to prevent its deadly and dangerous gas from escaping near the plaintiff's building; in failing to make any effort whatever to determine the source of its leaking gas near the building and the extent thereof; that the plaintiff was damaged in enumerated particulars.
We do not purport to set out the details of the voluminous evidence but rather the pertinent highlights thereof material to the consideration of the case. Mr. Buster Hood, the plaintiff's tenant, testified: that he rented from the plaintiff the 36 x 40 foot brick building which was destroyed; that he notified the defendant, through one of its agents. Mr. Thomas Johnson, on February 15, 1950, that gas was escaping near the building and in the vicinity of the meter; that he also notified the defendant of such through another of its agents; that he so notified the defendant about once a month thereafter up until the date of the explosion; that Johnson told him that the escaping gas was due to the high-pressure line running out to the Oconee Clay Products Company; that the top soil of the ground in which the service line ran was hard on top and soft underneath as evidenced by the fact that he had to use a pick to break the crust of the ground but used a shovel thereafter in uncovering the service line; that after the explosion the ground was burning in and around the area of the gas meter; that he had in the store an electric drink box and an electric refrigerator; that when the drink box or refrigerator "cut on", there was an electric spark or flash visible around the motors; that the ditch on North Jefferson Street had been cut on Friday before the explosion on Sunday morning. Mr. D. V. Brake testified: that he saw the explosion; that there was a flash in the building followed by a concussion; that the windows were blown out, the roof was lifted about three feet and the walls fell in; that right after the explosion he saw the ground burning in the vicinity of the meter and extending three to five feet north and south of the meter. Mr. Emmett Peugh, superintendent for the defendant in Milledgeville, testified: that the main line on North Jefferson Street from which the plaintiff's service line was run maintained a pressure of from 30 to 60 pounds per square inch at all times, depending on whether the Oconee Clay Products Company was running "at full load"; if the Oconee Company were shut down the pressure could only be 60 pounds per square inch; that on Sunday morning the company usually "fired" and that at such times they had their heaviest load; that he went out to the store immediately after the explosion; that he tested the meter and lines serving the plaintiff's building and the only leak he found was at the tee; that after he found the tee he stuck his knife blade in the rupture; that quite a bit of gas was then escaping from the tee; that he found fire outside the building burning between the sidewalk and the building; that it was just on top of the dirt and was not burning grass; that he discovered a freshly cut ditch on the west side of North Jefferson Street somewhat near the store; that he went out to the ditch to see what had happened to the service line running to the plaintiff's building; that he saw something to indicate that the service line had been struck while the ditch was being made; that he could not see the pipe (plaintiff's service line) in the bottom of the ditch when he first examined it; that there was a pile of sand on top of the pipe; that there had been a rain between Friday afternoon, the 25th, and Sunday morning, the 27th; that the section of pipe in court was the section running under the ditch; that he uncovered the pipe and found it bent in the same shape as it appeared in court; that the bent section of pipe in court was just exactly like he had dug it out of the ditch; that it was rusted and corroded when it came out of the ditch, in practically the same condition as it was in court. Mr. Joseph M. Delaville testified: that he was a professor of chemical engineering at Georgia Tech; that his experience pertained primarily to industrial hazards, such as explosions, and extended over twelve or thirteen years; that he on two occasions somewhat after the explosion examined the building and the ground thereabout; that the top soil was fairly hard and encrusted but below was more or less loose gravel that contained a considerable amount of broken tile and brick; that he examined the floor area inside the building and using a wire of 8 to 9 feet in length, pried into one of the long cracks in the floor, which crack extended some 20 feet in length and was 1 1/2 to 2 inches wide in places; that the probing of the wire was an effort to find out the substructure of the flooring and he was able to pass the wire a distance of some 8 or 9 feet without meeting any serious obstructions, indicating that the foundation beneath the floor was very loose and undoubtedly constructed of broken tile, stone and similar material; that as he examined one of the plaintiff's exhibits, a picture of a portion of the floor as torn up, he could see tile and loose material; that an electric are was sufficient to ignite a gaseous mixture; that gas follows the line of least resistance and that it would pass through loose, porous soil rather than through hard, encrusted soil; that it was his opinion that the gas escaping from the defective tee took the course of least resistance and diffused through the loose, porous soil to underneath the floor of the building and into the building through one of the cracks in the floor and was ignited by sparks from one of the electric motors. Mr. Raymond Broach, the defendant's district manager, testified that, in his opinion based on his experience, the gas escaping form the tee would have risen upwards through the ground rather than diffuse under the building. There was testimony that when the highway department was planning the pavement of North Jefferson Street, a representative of the department contacted the gas company concerning the lowering of its gas lines along the route of construction. This representative and an agent of the defendant checked the service lines in the area of the building on North Jefferson Street and the highway department representative informed the agent that those lines, including the service line to the plaintiff's building need not be lowered. The defendant's agent testified that during this inspection in September of 1950 in an effort to find where the service line connected to the plaintiff's building ran to the street main he uncovered the tee in question and that the tee was all right at that time. There was testimony by an arborist that in his opinion if gas had been escaping for a period of 18 months in such quantities that it could be smelled 100 feet away and so strong that it had been smelled by people going by there every day for two or three years before May of 1951, and the escape had been in all the surrounding trees, at least two of the trees and perhaps all of them would have been killed. He also testified that he saw no evidence whatever of gas damage to the trees. The defendant's agents to whom Buster Hood, the tenant, testified he gave notice of the leak denied that Hood ever gave them any kind of notice of leaking gas and denied that they ever commented to him as to what may have caused a leak. The plaintiff's evidence was to the effect that it took only a three percent concentration of natural gas with air to be explosive, while the defendant's evidence was to the effect that a five to fifteen percent concentration was necessary to be explosive. A number of witnesses testified that over a long period of time prior to the explosion they had smelled gas in the vicinity of the meter and tee. A fireman who answered the call to the store after the explosion testified that he went into the building shortly after the explosion and that he found that the drink box was running. It was stipulated that at the time of the explosion the gas to the plaintiff's building was effectively cut off at the meter and that gas could not have entered the building through its regular meter channel.
On the trial of the case the jury returned a verdict for the plaintiff. The defendant's amended motion for a new trial based on the general grounds was overruled and it excepts.
The plaintiff in error contends that the evidence does not show that the explosion was due to its negligence. We think the evidence authorized the finding that it was. The material evidence was in conflict. There was sufficient evidence for the jury to find that the only reasonable explanation for the explosion was that it was gas explosion, and was sufficient for them to find that the gas had been leaking over a long period of time; that the leak was in the defective tee; that the defendant had sufficient notice of the leaking gas; that by the exercise of ordinary care under the circumstances the defendant could have discovered the defective tee and corrected the defect; that the gas, rather than escaping upward through hard and encrusted soil, took a course of lesser resistance and diffused through loose gravel, broken tile and brick and porous soil to the ground under the floor of the building; that the gas entered the building through one of the cracks in the cement floor and combined with the air inside the building to such a degree as to become explosive; that the gaseous mixture was ignited by a spark from one of the electric motors.
The defendant sought to show that on Friday, May 25, 1951, a road machine cutting a ditch along North Jefferson Street struck and bent the service line running from its street main to the plaintiff's building and that such striking and bending ruptured the tee. The defendant did not attempt to show this by direct evidence as to the happening but by surrounding circumstances such as the cutting of the ditch, the finding of the bent pipe in the ditch, etc., and the testimony by its agent that he saw the tee in September of 1950 and that at such time the tee was not defective. The bent section of the pipe and the defective tee were in evidence for the jury to examine. The defendant's witness testified that they were in substantially the same condition in court as they were in on the day of the explosion. The jury were authorized to find from the condition of the pipe and tee, i.e., corrosion and rust on the pipe and tee and the condition of the ruptured threads on the tee, that the pipe had been bent and the tee ruptured before the Friday before the explosion on Sunday and that the defendant had sufficient notice of the leaking gas caused thereby. In its brief the plaintiff in error states: "The plaintiff in error is not so interested in the time when the ditch was cut and the pipe was bent, provided it was done between September, 1950, and the destruction of the store in May of 1951. In September of 1950 it was undisputed that the T-joint was in good condition and hence no gas was ecaping from it. Sometime between September and May, 1951, the T-joint was ruptured." If the service line was bent and the tee ruptured after September of 1950 and substantially before May 25, 1951, the jury could have disbelieved the defendant's agent and believed Buster Hood, the tenant, that notice of the leak had been given to the defendant monthly from February of 1950 until the time of the explosion and found that with such notice the defendant was negligent in not discovering and repairing the defective tee, but even this conclusion would not have explained the escaping gas prior to September, 1950. The jury could have disbelieved the testimony that the tee was all right in September, 1950. A fact may be proved by circumstantial evidence as well as by direct proof, and a jury is authorized, in a proper case, to make a finding based on physical facts and circumstances, and reject contrary direct testimony on the same point. McRae v. Wilby, 59 Ga. App. 401, 409 (1 S.E.2d. 77) and cases cited.
Mr. Raymond Broach, district manager of the defendant, testified that on the morning of the explosion he made observations with respect to the condition of the earth around the tee and found a dry lump of clay surrounding the tee about the size of a grapefruit. He testified that the escaping gas would absorb moisture from the earth to form such a lump and that in his opinion had there been an appreciable amount of gas escaping from the tee for a period of six months or longer, the leak would have created a lump of dry earth about two feet in diameter. Mr. Broach just prior to the above testimony testified that the general condition of the ground in the area that day was wet and that there had been "quite a rain" the previous day. The jury were authorized to find that the reason the dry lump of earth was no larger than the size of a grapefruit was because the rain of the previous day had saturated a larger size of dry earth reducing it to grapefruit size so that such size did not reflect the amount of gas that had escaped from the tee and how long it had been escaping.
The plaintiff in error contends that the jury's finding was based on an inference which itself was based on an inference and that therefore the finding was not authorized. The law is not that a jury cannot make a finding from an inference based on another inference, but that a jury cannot make too remote a finding from an inference based on another inference. Lumbermen's Mutual Casualty Co. v. Bridges, 81 Ga. App. 395, 401 ( 58 S.E.2d 849) and citations. In the instant case, if in fact the jury did make an inference on an inference and make a finding therefrom, the finding was not so remote as to make the above-mentioned principle of law applicable.
This is not a case where the facts are consistent with either of two opposing theories, as also strongly contended by the plaintiff in error. Here we have two inconsistent theories based not on all the facts (see Herman v. Aetna Casualty Surety Co., 71 Ga. App. 464, 469, 31 S.E.2d 100), but on two separate and conflicting sets of facts. "Where a decision is required between two or more antagonistic theories, an authorized finding that the evidence preponderates to one theory as against all the others necessarily carries with it a finding that the rejected theories are excluded." Radcliffe v. Maddox, 45 Ga. App. 676, 683 ( 165 S.E. 841). This, of course, also means that the inconsistent facts supporting the rejected theory were rejected.
The case of Spruell v. Ga. Automatic Gas c. Co., 84 Ga. App. 657 ( 67 S.E.2d 178), cited by the plaintiff in error, is not applicable here. Among other possible distinctions is the distinction that in the Spruell case it was not shown that gas was ever smelled or otherwise detected to indicate a leak in the distribution system and it was not shown that a leak was ever actually found to exist.
The court did not err in overruling the amended motion for a new trial.
Judgment affirmed. Gardner, P.J., and Worrill, J., concur. Sutton, C.J., disqualified.