Opinion
Page __
__ Cal.App.2d __258 P.2d 564WILLIAMS et al.v.CITY OF LONG BEACH.Civ. 19398.California Court of Appeals, Second District, Second DivisionJune 22, 1953Hearing Granted Aug. 20, 1953.
Thomas P. Menzies and James O. White, Jr., Los Angeles, for appellants Kansas City Fire & Marine Ins. Co. and Empire State Ins. Co.
J. Merrill Lilley, Long Beach, for appellants Arthur F. Williams and Corrine E. Williams.
Irving M. Smith, City Atty., John R. Nimocks and Alfred D. Williams, Deputies City Atty., Long Beach, for respondent.
MOORE, Presiding Justice.
Appellants Arthur and Corrine Williams in their suit against the respondent alleged that the city had negligently allowed gas to escape from its main and thereby caused appellants' property to sustain severe fire damage. Following the trial, the court found appellants' damage to have been the result of 'gas which had escaped from the pipe lines' of respondent on February 27, 1951, but that the harm 'was not proximately caused by any negligence' of the city. Judgment was thereupon entered for respondent whence comes this appeal.
The city maintained a gas line in Marine Way which lies adjacent to the home of Mr. and Mrs. Williams. In the early hours of February 27, 1951, as the husband lit a cigarette in his home an explosion occurred and his property was ignited. After the fire was extinguished, the presence of gas in the adjoining street was detected. Crews of the Gas Department excavated to [258 P.2d 565] the west of the home over the service connection, but no leak was found. After further excavations a leak was exposed about 55 feet to the west of the point at which the fire started and 21 feet west of Williams' most westerly property line. The main was bent downward and 'a weld had broken in the lower left quandrant of the pipe.'
Since appellants relied entirely on the doctrine of res ipsa liquitur in asserting respondent's negligence, the sole question raised on appeal is whether that doctrine was properly applicable.
Despite considerable confusion in the earlier California cases, see Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 218-220, it is now clear that the evidentiary effect of the doctrine is not a presumption, but an inference. 'Res ipsa loquitur * * * 'authorizes the inference of negligence in the absence of a showing to the contrary.'' Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 440, 247 P.2d 344, 346. 'The res ipsa loquitur doctrine raises 'an inference of negligence, not a presumption.'' Scott v. Burke, 39 Cal.2d 388, 398, 247 P.2d 313, 319.
What is the effect of this inference? In Hinds v. Wheadon, 19 Cal.2d 458, 461, 121 P.2d 724, it was held to be incumbent upon the defendant to bring forth evidence to rebut the inference of negligence. That decision was recently followed in Calame v. Stevens, 110 Cal.App.2d 45, 48, 242 P.2d 109. Such inference of negligence 'is in itself evidence which may not be disregarded by the jury and which in the absence of any other evidence as to negligence, necessitates a verdict in favor of the plaintiff.' Ales v. Ryan, 8 Cal.2d 82, 99, 64 P.2d 409, 417. The nature of the defendant's task in an action where the doctrine of res ipsa loquitur has been invoked was recently stated to be neither the burden of proving himself free from negligence nor the production of 'evidence of the actual cause of the accident.' Dierman v. Providence Hospital, 31 Cal.2d 290, 295, 188 P.2d 12, 14. Rather, he must show either (1) a satisfactory explanation of the accident, a definite cause for it from which explanation no element of negligence on the part of the defendant is to be found, or (2) such care as would necessarily impel the conclusion that the accident could not have happened from want of defendant's care, but must have been due to some unpreventable cause, although the exact cause is unknown. 'In the latter case, inasmuch as the process of reasoning, is one of exclusion, the care shown must be satisfactory, in the sense that it covers all causes which due care on the part of the defendant might have prevented.' Id.; Bourguignon v. Peninsular R. Co., 40 Cal.App. 689, 694-695, 181 P. 669.
That the instant case is a proper one for the application of res ipsa loquitur is beyond dispute. Gas is a dangerous substance. Where a party undertakes to control it he must use a high degree of care to prevent its leaking. Lewis v. Bjornestad, 111 Cal.App.2d 409, 412, 244 P.2d 497. Because it is an essential commodity and one that is within the exclusive control of the supplier, the very nature of the responsibility undertaken makes justifiable the imposition of the 'burden of explanation' for the disaster. Appellants herein are no more able to sustain that burden than are plaintiffs in the common carrier-passenger, physician-patient, and bailor-bailee relationships to which the doctrine is often applied. See Prosser, op.cit., pp. 222-224. Their situation is not dissimiliar to that of plaintiffs in the classical case of San Juan Light & Transit Company v. Requena, 224 U.S. 89, 32 S.Ct. 399, 401, 56 L.Ed. 680. After Mr. Requena had been killed by the electric current supplied to his home by the company, the United States Supreme Court affirmed the judgment for his wife with the observation that the doctrine of res ipsa loquitur is rightly applied 'when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care.' Paraphrasing the figure fancied by that illustrious tribunal [258 P.2d 566] in having the lethal voltage speak to the Court, we might have the gas of the city of Long Beach say, 'Your Honors: ordinarily my place is within the gas main provided for conducting me to consumers. The only time I can get out of the pipe and into the home of a consumer (otherwise than by the devices used for my control) is when the City becomes so careless as to permit an aperture or a crack to occur in a main and therefrom allow me to escape and fill a house. Your Honors must take judicial notice that the City was negligent in permitting me to escape into the Williams' home.'
To refute the inference of negligence, the city's witnesses testified that 'it would be more or less of a settling condition that would make that angle in there, and split in that place'; that the sag was three-eighths of an inch, roughly; that 'the movement of the earth could stretch that pipe, make quite a strain on it; not only that one place but up and down the alley, and it would snap at its weakest point'; that it was not known whether any special precautions were taken to prevent sagging in sandy soil; that the probable cause of the break was 'slight compression in the main' caused by an 'earth movement of some nature' but that the latter opinion was not 'a very strong opinion.'
But in view of all the evidence of the explosion 'it seems reasonably clear that the accident probably would not have occurred without negligence by someone.' Zentz v. Coca-Cola Bottling Co., 39 Cal.2d 436, 447, 247 P.2d 344, 350. The gas pipe may have been defectively constructed, laid or welded. There may have been a failure to make a timely replacement of the pipe. There was no proof that it had been inspected after it was laid in 1924 prior to the time of the fire. At the time of inspection there was a half-inch of rust on the pipe.
Taking the testimony as a whole, it cannot reasonably be said that the city's evidence satisfactorily explained the leak. Neither does it allow the inference of reasonable care. In the light of human experience, it is far more likely than not that the agency with exclusive control over the defective pipe was negligent. The speculation as to a possible earthquake is worthless in view of the only evidence on the subject--a stipulation that Professor Richter of the California Institute of Technology would, as a qualified expert witness, testify that no perceptible earthquake occurred between February 24, 1951, and March 11, 1951.
Black v. Partridge, 115 Cal.App.2d 639, 252 P.2d 760, cited by respondent contains nothing pertinent to the instant factual situation.
Reversed and remanded for further proceedings not inconsistent with the views expressed herein.
McCOMB and FOX, JJ., concur.