Mississippi Power & Light Co. v. Thomas

Appellee brought an action for personal injuries suffered when gas escaping from a pipe-line, laid by appellant, ignited from a spark from her automobile while being started in her garage. The declaration counted, upon two elements of negligence, an improper installation of the pipe and the use of an improper union or pipe connection. From a verdict and judgment in the sum of $3,000, the defendant appeals.

The gas line was laid in 1944, and consisted of several joints approximately twenty feet in length. It was laid between fifteen and eighteen inches underground. The joints were united by what is described as a "Dresser Coupling." One of these couplings pulled apart at a place beneath the garage. This dislocation was both horizontal and vertical, one end of the pipe being some three inches below the opposite end, and the separation being about three inches. The coupling remained attached to the southernmost joint. The garage was erected in the latter part of 1947, and the explosion occurred thirty-eight days thereafter. The garage was erected upon ground which sloped southward to the rear of the garage, and rested upon a solid foundation wall about the sides and rear. These walls were laid upon the surface of the ground, and were six inches thick, and their height varied from six feet at the rear to about two and a half feet at the front. The floor of the garage was constructed by filling inside this foundation wall with dirt to the level of a driveway leading to the street. The floor was finished with three concrete runners so as to accommodate two cars. The weight of the entire garage was estimated at eighty thousand pounds. The broken joint was beneath the dirt fill toward the front part of the fill.

Appellant's concern rises above the usual interest in displacing an adverse verdict, and seems to involve an anxiety that an affirmance of the judgment would impliedly, if not directly, proscribe the use of the "Dresser Coupling," which, he asserts, with testimonial support, has been widely used by this and other gas companies in uniting pipe sections. While we would not be privileged to share this concern as a troubling incident to a conclusion if compelled thereto by a legal necessity, we take occasion to state that neither the verdict nor our conclusions need carry such implication.

This coupling, described without technical nicety, consists of a metal sleeve or coupling body about six inches long, into which the opposing ends of pipe joints are slipped, and which is tightened by octagonal threaded nuts at each end. This action engages and progressively tightens about the pipe a rubber compound gasket, thereby sealing the line against leakage, and by pressure or compression makes a tight, though flexible, joint. Tensile strength is sought to be assured by friction produced through the tightening of the end nuts, which causes a gasket retainer to engage and hold the gaskets fast about the pipe ends. Its merit over other union devices is argued upon the ground of its flexibility which allows the pipe to slip under great pressure rather than allow a break of the pipe at the joint or at a terminal connection. To emphasize this quality of flexibility, a concession is made that it is possible for such joints to pull apart, although when properly installed they afford a tensile strength of about one thousand pounds. Its technical and popular designation as a "slip joint" conveys more than a mere implication that, if improperly applied, it would constitute a hazard not only of leakage but of actual separation.

There was conflicting testimony regarding the comparative strength and safety of other methods of coupling, notably by welding or the use of "ground joints" or screw couplings. Yet, the defendant procured instructions which effectively excluded comparisons with other such devices provided the Dresser Coupling was found to be reasonably safe. Taking into account their widespread use and general approval was therein authorized.

(Hn 1) It is clear that the issue of liability involves the questions whether (1) the coupling used was under the circumstances reasonably safe; (2) whether it was properly installed; (3) whether the erection of the garage was the sole proximate cause of the break; and (4) whether the erection of the garage was a reasonably foreseeable contingency against which the defendant was required to guard, or for which it was bound to make allowance. Of course, negligence in erecting the garage in the manner, and at the location, even though a concurring cause, would not of itself absolve the defendant unless it was the sole intervening cause. These alternatives were presented to the jury through proper instructions. Arguments to support the respective contentions include the observation that a leak in the pipe would not have been a serious hazard had the garage not been erected over the joint, thereby allowing the escaping gas to be accumulated and confined; that a water line of similar dimensions was laid parallel to the gas line and beneath the garage. The water line was joined with a screw coupling, and, though exposed to the same conditions, did not break or pull apart. The "Dresser Coupling" was constructed so as to remain tight against leakage, yet under emergency conditions it allowed a play or expansion by slippage equal to twice the extent to which each pipe end was inserted beyond the gasket. Just what amount of sway or deflection in the line would extend its length to the point of separation is not computed, yet the diagrams exhibited did not show any substantial sag of the line, but only, as stated above, a vertical displacement of the southern or rear section of pipe below the north or front section.

It is noteworthy that the other joints were sufficiently secure to withstand the pressure or strain, however imposed, and that the other end of the coupling here involved remained intact. The connecting pipe joints were not similarly depressed but only the south or rear joint, which retained the coupling, was found to be three inches below the opposing joint. This supports a view that the dislocation was not due to vertical pressure from weight above the joint, but by a horizontal pull which tested its tensile strength. The more plausible theory of the defendant is that such lateral strain resulted from the weight of the rear wall and the adjacent fill, which, exerted at a point beneath the real wall, caused the southern joint to sway in an arc sufficient to cause a shortening of its length beyond the safe margin of about three inches. As stated, the diagrams exhibited do not, however, show any such deflection. The break occurred about seven feet from the front end of the garage, which, as stated, was about two and a half feet above ground, and about twelve feet from the rear wall which was about six feet high. The floor of the garage was between three and four feet above the joint.

Further elaboration of statistical data would not be helpful. The issues sharply presented are: (1) Was the erection of the garage at the place, and in the manner indicated, a reasonably foreseeable probability? If so, (2) was the pipe-line laid with commensurate care in view of such probability? (3) If such erection was not reasonably foreseeable, was it the sole and intervening cause of the break and resulting injury?

Had there been no garage, the pulling apart of the joints would have presented a simple case, although one of the defendant's instructions denied the application of the res ipsa loquiter doctrine.

Now, certain factors are without dispute. The pipe-line did pull apart, gas did escape, and as a result thereof, plaintiff was injured. Was the erection of the garage the sole, proximate cause of the injury? This would have to be true to justify the exoneration of defendant. Yet, there must be more. Its erection must have been a contingency which the defendant was not chargeable with anticipating as a reasonable probability.

This suit involves no contributory negligence by the plaintiff. If both the defendant and he who erected the garage were guilty of negligence proximately contributing to the injury, she may recover from either regardless of the extent of their respective contributions. If precedent negligence of defendant was activated or augmented by the act of another to the point of actual injury, the defendant would be yet answerable for its fault.

(Hn 2) The issues of reasonable foreseeability and of sole, intervening cause were fully submitted by instructions to the jury. Also presented were the issues whether the joint used was proper under the particular circumstances, and whether, even if proper, it was properly or negligently installed. The jury were left free to resolve these issues, and to fix the blame on whomsoever it chose, or to attribute it to mere accident. We are of the opinion that these issues were factual and properly submitted.

(Hn 3) The suit was not grounded upon an alleged violation of a municipal ordinance which provided, in such cases, that "no unions except ground joint or metallic seat unions are allowed." Yet, it is assigned for error that the plaintiff was allowed to introduce in evidence the ordinance of the municipality. We do not digress to follow an assault upon the constitutionality of the ordinance, for the reasons hereafter stated. Attack is directed particularly to the testimony which more than implied that the defendant, by installing "Dresser Couplings" throughout the city, had incurred criminal responsibility. The possibility of adverse prejudice thereby has caused us no little concern.

Regardless of the evidential value and propriety of thus proving negligence (as to which see 38 Am.Jur., Negligence, Sec. 168), we do not here justify it on such ground. The fact of such ordinance was first established by the defendant, although its provisions were not exhibited. Moreover, the defendant procured instructions to the effect that it was not the defendant's duty to furnish any particular kind of coupling, and left for decision only the issue whether there was used a coupling "such as is recognized by the trade and by custom and usage to be reasonably safe and proper under the circumstances, and if you believe that the Dresser Coupling was reasonably safe when properly installed, and recognized as standard and proper, then you should find for the defendant regardless of every other fact and circumstance in the case."

In nullifying the implication of the ordinance, the defendant procured instructions to the effect that if the coupling used was of a type approved and used by the industry, and recognized as being reasonably safe and was properly installed, they would deny recovery. Such instructions authorized a finding that the defendant had used due care in the use of Dresser Couplings; or that such coupling was improperly and negligently installed; or, that the sole cause of the injury was the superseding negligence of the builder of the garage.

To insure against a condemnation by the jury of the Dresser Coupling, per se, the defendant procured instructions that if such coupling was generally accepted and used (and there was ample testimony thereto) and was itself reasonably safe, there could be no recovery "even though you may believe that a welded joint or rigid screw joint would not have broken, or would have broken at some other point, without injuring the plaintiff."

(Hn 4) It is evident, therefore, that the controlling issue was that of a proper installation in view of existing and reasonably foreseeable conditions. The assertion that the pipe-line had been laid for two and a half years, and the injury occurred thirty-eight days after erection of the garage, supplied material for argument which has been plausibly utilized. Yet, the jury had before it testimony that gas escaping into the open air is usally harmless. But, that its concentration within the foundation walls would make it a patent hazard. In this connection, defendant, in concluding that the erection of the building was the sole cause of the injury, assumes as one premise that there may have been a prior disconnection, which, however, negligently caused, would not have culminated in any injury if the garage had not been built. In other words, there would arise a situation explicable in a coined phrase "injuria absque damno." Of course, defendant concedes no prior break as a fact, but stands upon the theory of damnum absque injuria. The jury were free, therefore, to consider whether the garage caused the break, or merely magnified its effects. It may bear repetition that the refendant may escape liability only upon an intial finding that the garage, as and where constructed, was the sole proximate cause of the injury. But, for the garage, resourcefulness of the defendant would be put to severe test to defend against such breakage and a resultant injury.

In some, but not all, of plaintiff's instructions, the jury were told that the defendant was charged with "the highest degree of care commensurate with the dangers of gas leaking or escaping from any coupling . . ." The writer of this opinion, who does not in this respect speak for the Court, is of the opinion that there are no "degrees" of care, but that requisite care is comprehensively defined as that degree of care commensurate with appreciable danger, appraised in terms of ordinary prudence, and interpreted in the light of the attendant circumstances. Roberts v. Mississippi Power Light Co., 193 Miss. 627, 10 So. 2d 542. Yet, the employment of the phrase "highest degree of care" has been frequently used. State to Use of Johnson v. Cunningham,107 Miss. 140, 65 So. 115, 51 L.R.A., N.S., 1179. In its superlative aspect, it implies a responsibility which is violated by only slight negligence. Is its force sufficiently restrained by the qualification that such care be commensurate with the danger? Certainly if it is to be measured by the danger and limited thereby, the uncertainity which could otherwise blur the outlines of the vague superlative are at once brought into focus by the clarity of the limitation. Other instructions for the plaintiff, and all those for the defendant, fixed the measure of care by the standard of reasonable prudence.

The issue whether the coupling was properly installed was submitted by the circumstances that it pulled apart and direct testimony in this regard was sought to be elicited from defendant's witness Turner who made the installation. He stated: "I put it together as near correct as my knowledge." In response to repeated inquiries whether if it had been properly coupled, it would, under the circumstances, have pulled apart, the witness persisted in the ambiguous answer, "Well, it did pull apart." The jury was therefore faced with an interpretation which, on the one hand, meant that it would pull apart despite due care, which would search the adequacy of the coupling as a proper device; and on the other hand, could infer that the very fact of disconnection bespoke a faulty installation.

(Hn 5) Objection is made to the alleged error of the trial court in admitting the testimony of the plaintiff's witnesses, William and Jenne. Their qualifications as expert witnesses is challenged. Both had special training in installation of gas pipes and fittings, and if they had not been accepted by the trial judge as expert witnesses, at least they gave expert testimony as to facts within their special knowledge. See McKelvey on Evidence, 5th Ed., page 339. Such considerations affect only the weight of their testimony.

(Hn 6) Testimony as to the measure of damages is disturbingly indefinite. No physician was called to appraise the extent or duration of the injuries, nor as to their causal connection with the explosion. The case hovers close to the shadow of Hawkins v. Stringer, Miss., 38 So. 2d 454, yet the extent of plaintiff's suffering and the causal connection between her disabilities and the negligent act place her beyond, but perilously close to, the pale of the cited case. The amount of the award presents another challenge. We have concluded, however, that there is not in it evidence of passion or prejudice, and that however it may assault our judgment, it does not shock the conscience.

Affirmed.