Opinion
33675, 33676.
DECIDED OCTOBER 4, 1951.
Action for damages; from Fulton Superior Court — Judge Pharr. April 25, 1951.
Harris, Henson Gower, for plaintiff.
W. Neal Baird, Neely, Marshall Greene, Ferdinand Buckley, for defendant.
The evidence being insufficient to raise an issue as to the defendant's negligence, and the defendant having further established that it was not negligent as alleged, the trial judge did not err in directing a verdict for the defendant, and in overruling the plaintiff's motion for a new trial.
DECIDED OCTOBER 4, 1951.
Jason A. Spruell brought an action for damages against Georgia Automatic Gas Appliance Company, and alleged in substance the following facts: On August 19, 1949, the plaintiff purchased from the defendant a gas water heater, a gas stove, a heat circulator, and a 500-gallon butane gas storage tank, which the defendant installed on the premises and in the plaintiff's house, the defendant furnishing the workmen, the pipe, and the plumbing supplies for the installation, which was to conduct the butane gas from the storage tank in the yard to the appliances in the house. On August 25, 1949, the defendant's employees embedded the storage tank in the yard about fifteen feet west of the part of the plaintiff's house used as a kitchen, and ran a pipe from the tank to the house, at a depth of about six inches under the ground. The pipes under the house were above the ground, and by means of threaded elbow joints and T-joints the conduits branched off to the various appliances above mentioned. It was necessary to use at each threaded connection of the pipes with the joints a substance known as dope to prevent leakage of gas under pressure from the pipes. Butane gas is a petroleum product, liquid under high pressure, but becoming a gas if permitted to expand at reduced pressure. At atmospheric pressure and at temperatures between 20 and 100 degrees Fahrenheit, it is heavier than air. The butane in the storage tank is liquefied, but expands to a gas and is conducted through the pipes in that form, exerting sufficient pressure to escape from any opening that might exist in any pipe or connection.
After filling the storage tank with butane and turning the gas into the system of pipes conveying it to the appliances in the house, the defendant's employees turned over the installation to the plaintiff without having made any kind of test to determine whether there was leakage from the joints and connections in the system. Furthermore, the defendant's employees failed to use sufficient quantities of dope or any kind of dope at the connections of the pipes to prevent leakage of gas therefrom. Because of the faulty installation as alleged, the gas did escape from the connections and, being heavier than air, collected in pools in the excavations under the house in quantities sufficient to result in a violent explosion. On June 16, 1950, the gas so collected became ignited in a manner unknown to the plaintiff and exploded, with resultant injury to the plaintiff's wife, his house, and the personal property therein. There were no patent defects in the materials used by the defendant, and the plaintiff could not, by reasonable inspection, have determined that the installation was improperly made, for there was nothing to put the plaintiff on notice of the dangerous character of the installation, as alleged. The alleged acts of negligence of the defendant were the proximate cause of the injuries complained of. The plaintiff sued for the loss of services of his wife, medical expenses, and damage to his house, in specified amounts.
The evidence was substantially as follows: The plaintiff testified in part that his house was an old one, which he had remodeled and lived in since 1946; that the gas company put the tank in the yard about fifteen feet from the house, and a pipe, six or twelve inches under the ground, ran from it to the house; that this pipe had an elbow joint in the ground, came up four to six inches above the ground level at the house, went through some cement blocks in the foundation, and then branched off to the three gas appliances, a heater, a stove, and a water heater; that the plaintiff was seated in the living room of his house with his wife and two children standing beside him in a space about four feet square when the house "went up" on June 16, 1950, at 12:30 p. m.; that the explosion occurred under the west side of the house; that the plaintiff recalled when the defendant completed the installation but did not look at it after they had gotten through; that the company filled the tank and then turned the valve and started the appliances working; that he was present at the time, but he did not see them make any inspection of the pipes and the joints; that when they filled up the tank and turned the gas into the pipes he was there but he wasn't paying any attention to them; that, for anyone to have looked at those joints that led up to the burners, he would have had to go under the house to see them; that he did not see any of them go under the house; that he did not see anything about the way the pipes were installed that would cause him to believe they were not all right; that he had a basement dug out under the west side of the house and the dirt sloped to the basement, which was about six feet deep and twelve feet square; and that this basement was the only low place under his house.
On cross-examination, the plaintiff testified in part that he started fixing his place in 1946 and had worked on it ever since; that in November and December of 1949 he had a carpenter build a front porch, a back porch, and a bathroom for the house; that an electric motor, water pump, tank, and well were installed in the basement in 1946; that about a week prior to the time of the explosion he had been under the house by himself working on the water pump, draining excess water from the tank, and did not smell any gas down there then; that he knew the smell of gas and, if there had been any gas down there, could have smelled it; that, during the time the gas company was installing the system, part of the time he was away at work and part of the time he was in the house asleep and part of the time somewhere else, so that he couldn't testify from his own knowledge that he saw everything the defendant's employees did.
The plaintiff also called a chemist, who testified in brief that butane is a petroleum product, which is liquid at pressures of fifty to sixty pounds per square inch and at normal temperatures, becoming a gas when pressure is reduced; that the gas is more than twice as heavy as air, causing it to settle, but also has a tendency to diffuse into the air; that gas leaking from the pipes under the house would tend to settle and collect in the pit under the house; that, if the gas were present in sufficient concentration, from 1-1/2 percent to 7 percent by volume, in the air, it could be ignited by sparks from an electric motor; that the gas is highly inflammable and is explosive when mixed with air in the proportions above stated; that, when a building settles, there is a possibility that this might cause a strain on the pipes and cause a leak; that the appliances in general use throughout this territory are designed to work on reasonably low pressure, not on fifty to sixty pounds per square inch; that the high pressure would be in the tank itself and up to the point where a regulator was installed, which would cut the pressure down to ounces instead of pounds; that he didn't know what type of installation was being dealt with. whether it had a regulator, or what sort of appliances were used, whether for high or low pressure operation.
A plumber testified that it is necessary to seal threaded joints between pipes with dope, which is a mixture of oil, lead, and other substances; that he had never been able to make a joint tight without using dope; that he went to every joint under the building that he could get to and wiped his finger around each one, but that there was no dope on any of the joints; that, once the dope is used, it does not evaporate or disappear but will last indefinitely, or as long as the pipes will, if it is used in the initial installation; that, excepting the lack of dope on the joints, he didn't see anything wrong with the installation; that if a pipe is joined together, without any dope at the joints, it will leak gas; that he did not attempt to unscrew any of the joints, but put his finger around every joint, and his finger was as clean as it was at the trial; that there are a number of types of dope used to seal joints.
Several other witnesses testified as to the nature and extent of the plaintiff's damages.
The plaintiff further testified that the storage tank had been filled a few days before the explosion; that he had no knowledge of anyone being concerned at all or having anything to do with the installation from the time it was put in until the explosion occurred; that his house did not burn at the time of the explosion; and that the storage tank in the yard did not blow up.
The defendant introduced the testimony of several of its employees and the State Liquefied Petroleum Gas Inspector. The following additional facts appeared from their testimony: The pipes under the house were hung to the floor joists. A regulator in the system was located at the storage tank, and it decreased the pressure from forty pounds per square inch in the lines tank to six and a fraction ounces per square inch in the lines beyond the tank. After the pipes were dismantled, they were examined at the defendant's warehouse, and there was compound or dope in the fittings. It is not necessary to smear the dope on the outside of the fittings in order to seal a joint. If the dope is put on the threads of the pipes before the connection or fitting is screwed on, it does not necessarily show on the outside. If sufficient gas collected under the house to explode, it would mean that either the pipes and connections weren't screwed tight or there was not enough or any dope in the joints or there was a broken pipe. A crack may come into a joint after it has been put together, when it has been moved or had undue strain put on it, which could be caused by the settling of the foundation of the house.
The fitter who installed the system testified that he completed the installation on September 13, 1949; that his company, the defendant, used a compound or dope especially adapted for use with liquefied petroleum gas; that he used such compound on the pipe threads in screwing the pipes into the various fittings throughout the system; that, after the installation was made, he tested it with a manometer or U-gauge, which measures pressure; that the procedure used was to attach the manometer to one of the outlet valves in the system and to close the other outlet valves, to adjust the pressure in the system by means of the regulator at the storage tank until a pressure of eleven inches of water was obtained, and then to close the valve at the storage tank so that no more gas could enter the pipes: if the pressure shown by the manometer remained the same, it indicated that no gas was leaving the system through a leak; that he used the manometer in the manner described on the plaintiff's installation, and there was no leak in the system; that if gas collected under the house, the most likely place for it to come from was out of either a broken place or a leak around the joints; and that, when leaks occur at the joints, this means that the joint is not tight enough or that there is not enough dope.
C. B. DeBerry Jr., the State Liquefied Petroleum Gas Inspector, testified: that he went to the plaintiff's house the morning after the explosion occurred; that he examined the installation at the plaintiff's house and did not find any violation of the laws or regulations for the installation of butane systems; that the pipes were suspended on hangers and had the proper degree of slope back to the container in case of condensation in the line; that there were about twenty matches that had been recently struck near the water pump; that, in putting a compound on the pipes, it is not necessary to smear it on the outside of the fitting to make it seal; that it is necessary to cover the general thread area with the compound; that a compound can be put on the threads and the fittings so that there will be none showing on the outside and still make a tight seal; that he removed a small piece of compound which had exuded past one of the fittings which had broken and pinched the compound to check its consistency; that he determined that it was one of the approved types of compound; that various installers will use different techniques: "One man will place it on in a gob and then screw his fitting up, in which case you will have it exude outside the fitting; another man may be a little more meticulous with his work, and he will spread it on just enough to cover the threads, which is all that is physically necessary; then you won't have the volume exude out when the fitting is tightened up"; that the manometer is commonly used and accepted in the industry to measure pressure and to check for leaks; that this gauge would show up a slow leak in the operating portion of the system; that it is possible for a system to be installed without leaks and later develop leaks, years or weeks after the initial installation; that the most common cause of leaks later developing is building settlement, especially where the piping comes through a foundation from the ground into the building; and that some leaks have no logical explanation whatever.
At the conclusion of the evidence, the trial judge directed a verdict for the defendant, and the plaintiff moved for a new trial, assigning error on the direction of the verdict. The motion was overruled, and the plaintiff excepted.
The question for determination is whether the evidence raised an issue as to the defendant's alleged negligence which should have been submitted to the jury. Therefore, the relevant evidence has been set out at length.
There are no conflicts on any material points between the direct evidence of the plaintiff and that of the defendant. This evidence showed that a butane gas system serving appliances in the plaintiff's house was installed by the defendant in September, 1949; that butane gas combined with air in certain proportions is explosive; and that, nine months after the installation, an explosion occurred, not in the tank and pipe installation, but in the space under the plaintiff's house. "In arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved." Code, § 38-123. There are only inferences here as to the cause of the explosion and as to what exploded. From the inference that butane gas exploded and the fact that the gas tends to settle in low places, a jury might infer that the gas came from a leak in one of the pipes under the house, and then infer that the leak was due to the defendant's failure to use any or enough sealing compound in the joints of the system and its failure to inspect it for leaks when the installation was completed, which are the acts of negligence alleged in the petition. It appears that the plaintiff's case rests upon inferences made from inferences, and such proof is insufficient where the inference is too remote. Georgia Ry. c. Co. v. Harris, 1 Ga. App. 714 ( 57 S.E. 1076); Miller v. Gerber Products Co., 207 Ga. 385 ( 62 S.E.2d, 174).
Furthermore, some of the inferences supporting the plaintiff's case were nullified by his own testimony on cross-examination. Evans v. Josephine Mills, 119 Ga. 448 (2) ( 46 S.E.2d 674); Evans Pennington v. Scofield's Sons Co., 120 Ga. 961 ( 48 S.E. 358). The plaintiff testified that, about a week before the explosion, he had been in the basement of his house working on an electric water pump but did not smell any butane gas, although he could have recognized its odor. This testimony tends to disprove the contention that the explosion resulted from the alleged negligence of the defendant, in failing to test the system, for, if the defendant had left the system leaking, it is reasonable to conclude that the plaintiff would have been able to smell some gas in his basement nine months later, but he did not.
As to the alleged failure to use sealing compound or dope on the threads of the fittings or to use it in sufficient quantity, the direct evidence introduced by the plaintiff was to the effect that there was no compound outside of the joints which could be felt or seen, and that, if any of the compound were outside the joint, it had become too dry to adhere to the finger of the plaintiff's witness. The witness in making his examination of the pipes did not take apart any of the joints to inspect them. It would seem that the inference supposed to be raised by this evidence is that, as there was no compound discovered outside the joints, there was not enough or none inside the joint where it would prevent leakage. However, this inference is rebutted by the testimony of the defendant's employee who first assembled and then later dismantled the system, which was that he used the sealing compound (according to the State inspector it was an approved type of compound) on the joints; that he then made the manometer test for leaks, but found none; and that the compound was still on the threads when the pipes were removed and disassembled after the explosion.
Consequently, the possible but undemanded inferences of negligence on the defendant's part were negatived by the positive testimony of unimpeached witness, which was not contradictory to or inconsistent with the plaintiff's circumstantial evidence, and which tended to establish that the defendant had used ordinary care in making the installation; that it had complied with the regulations imposed by law (see the Liquefied Petroleum Safety Act, Ga. L. 1949, p. 1128); and that it had used the tests and materials generally accepted and used in the industry. Frazier v. Georgia R. c. Co., 108 Ga. 807 ( 33 S.E. 996); Taggart v. Savannah Gas Co., 179 Ga. 181 (1) ( 175 S.E. 491); Myers v. Phillips, 197 Ga. 536 (4) ( 29 S.E.2d 700); Neill v. Hill, 32 Ga. App. 381 (2 b) ( 123 S.E. 30); Emory University v. Bliss, 35 Ga. App. 752 ( 134 S.E. 637); Western Atlantic R. Co. v. Gentle, 58 Ga. App. 282, 297 ( 198 S.E. 257); Smith v. Etna Ins. Co., 58 Ga. App. 711 ( 199 S.E. 557); Slaton v. Atlanta Gas Light Co., 62 Ga. App. 42 ( 7 S.E.2d 769); Allgood v. Dalton Brick c. Corp., 81 Ga. App. 189 (4) ( 58 S.E.2d 522).
The doctrine of res ipsa loquitur has no application to this case. It was not shown that the premises or the instrumentality causing the injury was controlled by the defendant, as was the case in Candler v. Automatic Heating Inc., 40 Ga. App. 280 ( 149 S.E. 287), and in Sinkovitz v. Peters Land Co., 5 Ga. App. 788 ( 64 S.E. 93), cited and relied upon by the plaintiff in error. It was also shown that the explosion occurring was such as might have resulted with equal probability from causes other than the defendant's negligence, namely, from possible settling of the house during or after the time it was remodeled in November, 1949, and after the defendant had installed the gas system, which settling might have caused strain in joints or in the pipes themselves resulting in a leak, according to the testimony of witnesses for both the plaintiff and the defendant. See Evans v. Sears, Roebuck Co., 49 Ga. App. 744 (1) ( 176 S.E. 843); Floyd v. Swift Co., 59 Ga. App. 154 ( 200 S.E. 531); Advanced Refrigeration Inc. v. United Motors Service Inc., 71 Ga. App. 576 ( 31 S.E.2d 605).
The evidence being insufficient to raise an issue as to the defendant's negligence, and the defendant having established that it was not negligent as alleged, the trial judge did not err in directing a verdict for the defendant, and in overruling the plaintiff's motion for a new trial. It is unnecessary to consider the exceptions in the cross-bill to the overruling of certain of the defendant's demurrers to the petition.
Judgment affirmed on the main bill of exceptions; cross-bill dismissed. Felton and Worrill, JJ., concur.