Shaw v. Wisconsin Power & Light Co.

^* Motion for rehearing denied, with $25 costs, on March 7, 1950. Actions commenced August 6, 1946, by Ethel Shaw, Dorothy Schwersinske, as general guardian of Gary and Gloria Schwersinske, and Doris Schwersinske Ritchie, as administratrix of the estate of Herbert Schwersinske, deceased, against the Wisconsin Power Light Company to recover damages for the wrongful deaths of Herbert and Lawrence Schwersinske and Estella Shaw. From judgments in favor of defendant entered January 4, 1949, dismissing the complaints, plaintiffs appeal.

The deceased persons were asphyxiated while asleep in their one-story house in Fond du Lac, Wisconsin. The house did not have a foundation and stood on posts. These posts were rotted and the house had settled or sagged. At one time gas pipes had been installed under the house, but for eighteen years no gas had been supplied to the house and the meter had been taken off the pipe. However, the gas was not shut off at the curb and remained in the pipes beneath the premises. Defendant gas company had made no inspection of the premises since gas service had been discontinued eighteen years before.

During the night of March 27, 1946, one of these pipes under the house was broken. The gas escaped and seeped through the floor into the house killing the occupants.

Plaintiffs, Dorothy Schwersinske and Doris Schwersinske Ritchie, were the divorced wives of Lawrence and Herbert Schwersinske, respectively. Each had two children and received alimony under the divorce judgment. Each asked damages to compensate for the loss of the alimony in supporting the children. Plaintiff, Ethel Shaw, was the mother of Estella Shaw. She asked damages to compensate her for the loss of her daughter's support.

Plaintiffs alleged that defendant was negligent in failing to property install, inspect, maintain, remove, and shut off the gas pipes. The defendant denied liability.

A jury was waived, and the cases were tried to the court. The court found that there was no proof of faulty installation, that the pipe in which the break occurred was not defective, and that the break was due to the settling or sagging of the house which caused pressure on the pipes. He further found that there was no proof that an inspection a day or two before the break would have disclosed the danger of pressure on the pipes from the settling of the house. He concluded, "as a matter of law, . . . there is no legal responsibility on the part of the defendant for the death of plaintiffs' decedents, and . . . judgment dismissing the complaints must be entered."

By stipulation the cases, which had been consolidated for trial, were argued together on appeal. The only question, which it is necessary to consider, is whether the defendant was negligent in not turning the gas off at the street and in allowing it to stand in the pipes on deceaseds' premises.

The rule which applies to situations such as this has been discussed in opinions of courts and in texts. It has been held that failure of a gas company on discontinuance of the use of its gas by a householder or patron to cut off the gas at the street so as to keep it from the service pipe does not constitute negligence per se. There may be circumstances imposing a duty to inspect because a gas company is expected to take every reasonable precaution suggested by experience and usual practice. It must install pipes and fittings of good material and workmanship with skill and care and must inspect its pipes and promptly repair them when they become unsound. See 24 Am. Jur., Gas Companies, p. 680, secs. 20 to 50, which treats with duties and liabilities of gas companies. Also 38 C. J. S., Gas, p. 738, sec. 42, which deals with negligence in turning gas on or off, and Canfield v. Gas Co. (1917), 80 W. Va. 731, 93 S.E. 815; Anno. L.R.A. 1918A, 808.

The trial court found, and his finding is supported by the evidence, that the pipe in which the break occurred was not defective and that the break was caused by the settling of the house due to a rotten post. Therefore, inspection, maintenance, or repair of the pipes by the defendant would not have prevented the accident.

While defendant can be held to a duty to keep the pipe in which its gas is stored in good condition, it cannot be required to make an inspection of the premises to determine whether they are being kept in safe condition without any knowledge that they may be a source of danger. There was no odor of gas prior to the death of the occupants of the house; there was no sign that the house was sagging and exerting pressure on the gas pipes under it. In fact, as pointed out by the trial court, there was no proof that an inspection even a day or two before the break would have disclosed the likelihood of pressure on the pipes from a sagging of the house. Because of such circumstances defendant was under no duty to inspect the premises to discover a possible dangerous condition. The rule has been stated as follows:

"It is of the essence of negligence that the person charged should have knowledge that there was a duty for him to perform; knowledge of the facts out of which the duty to act arises is essential; in order that an act or omission may be regarded as negligent, the person charged must have knowledge or ought to have known from the circumstances that the act or omission charged involved danger to another."Moen v. Madison Railways Co. (1929), 199 Wis. 168. 170, 225 N.W. 821.

Any other rule would necessitate the examination at frequent intervals of all buildings in which gas is used. It would be a practical impossibility.

The plaintiffs cannot recover the damages they seek because there is no evidence that the defendant failed to perform any duty imposed on it by law.

By the Court. — Judgments affirmed.