Consolidated Gas Co. v. Connor , 114 Md. 140 ( 1910 )

The two appeals embraced in this record were taken from judgments recovered by the appellees in separate suits against the appellant for personal injuries resulting from the inhaling of gas which was alleged to have escaped from the appellant's pipes through its negligence. As the causes of action were practically identical the cases, by agreement, were tried together in the Court below.

The appellees, Elizabeth Goodman, formerly Connor, and her minor son, George L. Connor, lived at the corner of Hakesley street and Bond Street alley, in Baltimore City. At this corner there was a city lamp which was supplied with gas by the appellant under a contract with the municipality. While the appellees were asleep at night, in a room on the second floor of their dwelling, they were made ill by gas which escaped from a leak in the service pipe connecting the city lamp with the appellant's main. Subsequent investigation located the leak in the fitting, called an "L," which joined the horizontal pipe, laid from the main to the base of the lamp-post, with the vertical pipe, or "riser," extending upwards, through the interior of the post, to the burner.

The only rulings of the Court below presented for review are those disposing of the prayers offered by the respective parties, and the questions involved are: first, as to the legal sufficiency of the evidence to show negligence on the part of the appellant; secondly, as to the liability of the appellant for the consequences of the escape of gas from a pipe, the ownership of which it claims to have conclusively proven to be in the city of Baltimore; and thirdly, as to the responsibility of the appellant to third persons for alleged negligence under its contract with the city.

In connection with its contract to supply the city lamps with gas, the appellant, as the record shows, undertook the duty of keeping the service pipes in proper condition. Whenever leaks occurred the established practice was for notice to be given to the Gas Company through the office of the City Superintendent of Lamps and Lighting, and the company would make the necessary repairs. Independently, therefore, of any question of obligation on the part of the appellant to the appellees, the primary inquiry is whether the company was shown, by legally sufficient evidence, to have been negligent in the performance of the duty it assumed to keep in repair the pipes through which its gas was furnished to the city.

There is evidence in the record to the effect that three or four days before the night on which the appellees were injured, gas had been noticed in the street outside of their house; that the odor was slight at first, but grew stronger from day to day; that the street lamp was out all that week, and the lamplighter could not light it; that the Gas Company was notified, and on Wednesday, two days before the injury to the appellees, the company's employees visited the place and detected no odor of gas; that they made an unsuccessful search for a leak by smelling at the burner, but made no investigation at or beneath the surface of the ground; and that on Saturday, the day after the injury was sustained, the employees of the company dug up the soil at the base of the lamp-post and discovered the leak at the point already described.

It has been held by this Court that it is "for the jury to say as a matter of fact, and, therefore, not for the Court to determine as a matter of law, whether an inspection which failed to discover what other persons in the same situation as was the inspector were aware of was a due and reasonable inspection."Consolidated Gas Co. v. Getty, 96 Md. 688. If the appellant's agents had made on Wednesday the kind of inspection they made on Saturday, there can be no doubt that the leak would have been discovered and repaired in time to avoid the injury to the appellees. It could not justly be held that an examination which is shown to have been as incomplete and ineffective as the one first made was sufficient to relieve the appellant from the imputation of negligence in the performance of so serious a duty as that of providing against the escape of the dangerous product it was engaged in distributing. It could not discharge that duty, as this Court has said, "by assuming without knowing that the leak proceeds from one source, when, in fact, it proceeds from a totally different source which could have been discovered by proper inspection." Consolidated Gas Co. v. Crocker,82 Md. 124. The question of negligence was clearly one for the jury to determine under the circumstances shown by the record.

It was urged, however, on behalf of the appellant, that according to the uncontradicted evidence, the service pipe in which the leak was found belonged to the city, and that therefore, the appellant could not be held responsible for the escape of gas at that point.

By the contract under which the city lamps were supplied with gas, for the period covering the accident in question, it was provided, among other things, that the appellant should make connection from its main pipes to such lamps as might be erected by the City along the lines of the mains; that the company should make such changes in the services supplying the lamps then in use, or which might thereafter be put in use, as might be requested by the City; that there should be paid by the City to the company the sum of five dollars for each new lamp connected by it to its mains, "this payment to cover the cost of laying the service and making the connection from the gas main to the lamp;" and that the City should pay to the company the "actual cost of making any changes or alterations in its services or connections to any street lamp" then or thereafter erected under the contract.

The situation, therefore, is one in which the City, owning the lamp-posts and lamps, arranged with the Gas Company to supply the lamps with gas. In order that this might be accomplished, it was necessary for the company to instal service pipes extending from the mains to the burners. The "cost of laying the service and making the connection" is stipulated to be paid by the City at a designed flat rate, but no provision is made for the transfer of title to the materials employed in the work. On the contrary, the retention of title in the company is suggested in the stipulation for the payment to the company of the cost of any changes in "its services or connections," made at the request of the City.

In the bills rendered by the company to the City for making new connections, the charge was merely "for connecting services to new gas lamps," at the flat rate per lamp prescribed by the agreement. The lamp-post here in question was connected with the main in October, 1908, and the bill for this and other connections for that month was: "for erecting new gas lamps" at the flat rate then in force. In none of the bills in the record for connecting the lamps with the mains is any mention made of the materials used for that purpose.

There is nothing in the contract expressly requiring the company to repair the service pipes, and yet that duty has been treated by both parties as devolving exclusively upon the company. The only payments shown by the evidence to have been made by the City to the company on account of repairs were in cases where lamp-posts, concededly the property of the City, had been broken off by a runaway team or other cause. When a lamp was removed to a different location the old service pipe was not taken up, but a new connection was made for which the City was charged at the contract rate. It was in evidence that the City always disclaimed ownership of the service pipes and that this was a disputed question between the municipality and the company.

There were other circumstances relied upon by the appellees as tending to show that the service pipes were not the property of the City, but those we have referred to are sufficient to make it apparent, at least, that ownership by the City was not so conclusively proven by the evidence as to justify the withdrawal of the case from the jury on that ground.

It does not appear, however, that this consideration is vital to the appellees' case. In view of the nature of the business in which the appellant is engaged it would, in our judgment, be unduly limiting its responsibility to hold that notwithstanding it should be found to have been neglectful of its duty to repair the service pipe in question, it should be exempted from liability to a third person for the injurious results of its negligence merely because the pipe might be shown to be the property of the municipality. The substance which the appellant manufactures and delivers to its consumers through its system of mains and connections is highly dangerous to persons and property, and the duty of the company is to use all reasonable precautions to confine this agency within the channels where it may be employed with safety and utility. As the current which the company sets in motion is sent through the entire extent of mains and service pipes which it has established for its own profit, and which it has undertaken to repair without reference to the technical question of ownership, it is only just that the measure of its liability to those affected by any negligence in this regard should equal that of its duty and opportunity to keep the system in repair.

In Richmond Gas Co. v. Baker, 146 Ind. 600, where the suit was for injuries sustained by an explosion of gas which escaped from a leak in an elbow connecting a conducting pipe with the plumbing of a dwelling house, it was said by the Court: "The company was supplying the house with artificial gas, a penetrating, elusive and explosive material, and hence one that was at anytime liable to become dangerous unless carefully guarded. The company, therefore, owed a duty to all persons who might be injured by the gas to use ordinary and adequate care in delivering the substance into the residence in question."

In Washington Gas Light Co. v. District of Columbia,161 U.S. 316, where the District was suing for reimbursement from the Gas Company on account of damages which the former had been compelled to pay a pedestrain for injuries sustained by reason of a gas box in a sidewalk being out of repair, the Supreme Court, in enforcing the liability of the company for neglect of duty in reference to the repair of the box, said: "Nor do we think that this duty was affected by the circumstances that the cost of the labor and material used in the construction of the connection and gas box was paid by an occupant or owner of property who desired to be furnished with gas. As the service pipe and stop-cock was a part of the apparatus of the company and was used for the purpose of its business, it is entirely immaterial who paid the cost or might in law, on the cessation of the use of the service pipe and gas box by the company, be regarded as the owner of the mere materials. Certainly, it would not be claimed that if the box and its connections became so defective or out of repair that gas escaped therefrom, and caused injury, the company could legally assert that it was under no obligation to take care of the apparatus, because of the circumstance that it had been compensated by others for its outlay in the construction of the receptacles from which the gas had escaped."

In the present case the duty of the company to make the necessary repairs to the pipe in which the leak occurred was clear and exclusive, and there was evidence from which negligence in the performance of that duty was inferable. Under these circumstances the company would not be exempt from responsibility to those suffering from such neglect even though the ownership of the service pipe had been conclusively shown to have been in the City.

But it is insisted that the company was, in this connection, operating as the agent of the City under a contract for the illumination of the City streets, and that while it may have assumed the duty of keeping the service pipes in repair, yet that was a duty which it owed solely to the City, and any neglect to perform it could be regarded only as a nonfeasance for which the company would not be liable to third persons. The appellant concedes that it would be liable to anyone injured by itsmisfeasance while acting as the agent of the City, but it contends that any negligence which might be found in this case consisted only of a failure to do that which was undertaken to be done, and amounted, therefore only to nonfeasance.

The distinction between these two classes of negligence has been frequently considered, and it is well settled that nonfeasance is the non-performance of a duty, for which the agent is liable only to his principal, while misfeasance is the improper performance of a duty, for which the agent is liable to third persons injured by such negligence. If, for example, the Gas Company in this case had failed to supply gas to the City lamps in accordance with its contract, this would have been a nonfeasance, for which the company would have been responsible only to the City. But when, in carrying out the contract, it distributes the gas through defective pipes and thus permits it to escape into the streets and houses of the City, there is manifestly involved an affirmative element of negligence amounting to misfeasance, and for this the company is liable to anyone who may suffer in consequence.

The Supreme Judicial Court of Massachusetts, in Osborne v.Morgan, 130 Mass. 102, has clearly stated the distinction as follows: "It is often said in the books that an agent is responsible to third persons for misfeasance only, and not for nonfeasance. And it is doubtless true that if an agent never does anything towards carrying out his contract with his principal, but wholly omits and neglects to do so, the principal is the only person who can maintain any action against him for the nonfeasance. But if the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot, by abandoning its execution midway and leaving things in a dangerous condition, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safeguards. This is not nonfeasance, or doing nothing; but it is misfeasance, doing improperly." It was accordingly held that "negligence and unskilfulness in the management of inflammable gas, by reason of which it escapes and causes injury," could not be regarded as mere nonfeasance.

This general principle is recognized in numerous authorities including Mechem on Agency, sec. 572; 31 Cyc. 1560; IllinoisCentral R.R. Co. v. Foulke, 191 Ill. 57; Ellis v.McNaughton, 76 Mich. 237; Bell v. Josselyn, 3 Gray, 309;Southern Ry. Co. v. Grizzle, 124 Ga. 735.

The cases cited by the appellant upon this point were instances of nonfeasance. In Nickerson v. Bridgeport, 46 Conn. 24; Atkinson v. New Castle, L.R. 2 Exch. Div. 441; andDavis v. Clinton, 54 Ia. 59, no recovery was permitted from water companies, at the suit of third persons, for loss by fire resulting from the failure to supply water to the municipalities with which they had contracted for that purpose; while inLampert v. LaClede Gas Co., 7 Western Rep. 745, it appeared that the Gas Company had agreed with the City to keep the street lamps in repair, and it was held that a person injured by a broken lamp-post, left in a dangerous condition on a public highway, could not recover against the company. The situations presented in these cases were essentially different from that with which we are here confronted. They would be analogous to the case at bar if the water companies, in the cases first mentioned, instead of failing to furnish water, had forced it through defective pipes and had thereby caused it to escape to the injury of the plaintiffs; and if the Gas Company, in the case last cited, instead of merely omitting to remove a broken lamp-post from a highway which it was the duty of the municipality to keep safe, had allowed gas to escape through the post and had thus caused injury to the person suing.

In this case it was not the fractured pipe but the discharge of gas that injured the appellees, and their recovery cannot be denied upon the theory that the negligence imputed to the appellant did not amount to misfeasance.

In support of the contention that the only recourse of the appellees was against the City, it was pointed out that the City, by ordinance had undertaken to keep the street-lamps in repair, and certain of its enactments on the subject were offered in evidence. These commit to the Superintendent of Lamps and Lighting the duty of providing for the lighting, cleaning and repairing of the "City lamps," and for the "furnishing, construction, erection, repair or removal of all street lamps and lamp pillars." By their plain terms these provisions deal only with the lamps and lamp-posts furnished by the City, and they make no reference to the service pipes through which the lamps were to be supplied with gas. Under the authority of the ordinance quoted, the Superintendent, on behalf of the City, contracted with the American Lighting Company for the lighting, extinguishing and cleaning of the lamps, and the equipment, maintenance, painting and repair of all the "lamp-posts, lanterns, equipment and property of the City."

It, therefore, appears that the City neither assumed for itself nor undertook to delegate to the contractor, just mentioned, the duty of keeping in order the connecting pipes, but that duty was left, where it properly belonged, with the company that installed them for the transmission of the gas which it had contracted to deliver to the lamps. Blondell v. Consol. Gas Co.,89 Md. 748.

The questions we have considered were raised upon exceptions to the granting of the plaintiffs' second prayer, and to the refusal of the prayer offered by the defendant for the withdrawal of the case from the jury. These latter prayers were predicated upon theories which we have discussed and disapproved. The second prayer of the plaintiff was objected to on the ground, in addition to the contentions we have reviewed, that it permitted the jury to render a verdict against the defendant if they should find that by reason of its failure to use due care the gas supplied by the defendant "leaked or escaped from its pipes, orfrom pipes which in the operation of its business it used andassumed the duty of repairing," to the injury of the plaintiff. It is urged that the alterative we have italicized in this instruction is not in accordance with the declarations, which charge that the Gas Company was negligent in failing to repairits pipes. We do not consider this objection tenable. The declarations are, in our opinion, sufficiently broad to cover both the theory of ownership of the pipes by the company, and the theory of its assumption of their control and repair, as the pipes which the company assumed the duty of repairing were part of its system for distributing its product and were "its" pipes for all the intents and purposes of its liability in these suits.

The rulings of the Court below accord with the views we have expressed, and the judgments appealed from will be affirmed.

Judgments affirmed, with costs.