As stated in the controlling opinion herein, this suit is predicated upon two charges or elements of alleged negligence — an improper installation of the service gas pipe-line, and the use of an improper union or coupling for the safe connection of the pipe-line. I do not think there was sufficient evidence, if any evidence at all, to show that the gas line was improperly installed. The specific charge of the declaration in that regard is that the Power Light Company had "negligently failed to make secure one of the joints thereof and to provide a proper appliance or coupling for said joint, so as to render the same reasonably secure against the pressure of gas," etc.
A Mr. Turner testified, in substance, that on account of the shortage of skillful workers in 1944, when this underground service gas line was installed across the vacant lot on which the garage was later erected, thirty-eight days before the explosion, more than two and a half years after the pipe installation, he, personally, connected the ends of the lengths of pipe by use of the "Dresser Coupling" at six locations along the pipe-line, and when asked whether or not such coupling would pull loose if properly installed, he replied "that one did." Moreover, I am of the opinion that it is conclusively shown that he did in fact securely install the coupling so as to make it reasonably safe to withstand pressure of gas, since there was no proof whatsoever in the record that he did not do so, or that it came loose during the period of more than two and *Page 223 a half years prior to the erection of the garage over the coupling joint which became disconnected and caused the explosion.
Mention should be made herein of the fact that on the morning of the explosion, the plaintiff had theretofore driven the automobile out of the garage to go to Mass, returned it to the garage, and later when starting the automobile for the purpose of taking her nephew to the ten o'clock Mass, the explosion occurred. If the pipe under the garage had become disconnected during or prior to the night before the explosion, it would appear that the gas which had accumulated therein during the night would have become ignited on her first trip to the garage for the purpose of using the car to go to the early Mass. that morning. And mention should be further made that this was during the winter rains and that the concrete foundation of the garage at the back end thereof, where it was approximately five feet high and where it had been placed on top of the ground as a footing, and approximately eighteen inches above the pipe-line, was found to be sunk to within five inches of the pipe-line after the explosion. I do not think that an explosion from leaking gas under the ground would have had a tendency to lower the foundation, since the pressure of the gas would have been upward.
It is stated in the controlling opinion that "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 remainded intact." I think it is more noteworthy that the weight of this 80,000-pound garage was not over any of the other joints. In fact, service gas pipe-lines are not placed beneath buildings, but are extended into buildings so as to connect with the gas appliances from a meter located outside of and immediately adjacent to such buildings.
I also think that it is extending the doctrine of negligence entirely too far to hold that because the defendant *Page 224 should have reasonably foreseen that a garage might later be erected over the pipe-line would mean that the power and light company should have also reasonably anticipated that the forces of nature causing soil to slide would combine with the weight of the garage so as to disconnect a coupling underneath the same during heavy rains where the connection had remained intact for more than two and a half years.
It was shown, without dispute, that thousands of other Dresser Couplings were used throughout the City of Yazoo and elsewhere, including those throughout the area of sliding soil and elsewhere in our Capital City and in other parts of the country, and without explosions resulting from the use thereof. Such couplings were shown to be in general use as a reasonably safe appliance or connection by the gas distributing industry. In fact, in Crocker's "Piping Handbook," published by McGraw-Hill Book Co., Inc., New York and London, 1945, 4th Ed., it is stated that such a coupling "is well known under the trade names of Dresser Coupling and Dayton Coupling, and is used extensively for air, gas, oil, water, and other services above or underground. . . ." It seems to be generally recognized by the experts in this industry that flexibility in connections is desirable to prevent the line breaking under extraordinary pressure — a quality not found in an underground welded joint; that where a welded joint is used an unsual pressure of weight or from sliding soil may not break it at the point of connection, but will break elsewhere with the likelihood of causing damage. Most assuredly, one making a pipe-line installation would not be required to anticipate more damage from such a result at one place rather than at another.
In the case of Chester Company v. Wisconsin Power Light Co.,211 Wis. 158, 247 N.W. 861, the company was held liable because it failed to use a flexible joint or connection. If the present suit was for an injury caused by the breaking of a pipe-line where a welded joint was used, it is to be presumed that we would follow this Wisconsin *Page 225 case and hold that liability should be predicated upon the failure to do what the defendant in the case at bar did do, in an absence of a decision of our own Court, or the weight of authority from other jurisdictions to the contrary. Thus it was that when this pipe-line was installed the defendant was confronted with a well-reasoned opinion from a Supreme Court holding that the flexible connection should have been used; and since there is no decision cited to the contrary, I do not think we should hold the defendant liable for using such appliances as are in general use in the gas distribution industry.
No contention is made anywhere in the brief on behalf of the appellee that the verdict in this case should be upheld on the ground that this coupling was not made secure by the workman when the same was originally installed, although this charge is contained in the declaration and the workman was interrogated in regard thereto. In other words, the contention urged by the appellee here for the affirmance of the judgement appealed from is based upon the negligent use of the Dresser Coupling as not being a reasonably safe appliance. However, the controlling opinion states that "neither the verdict nor our conclusions need carry such implication," thereby meaning to say that the decision of the controlling opinion in this case is not to be construed as condemning the use of the Dresser Coupling.
With the utmost deference, it seems to me that unless the use of this Dresser Coupling is to be condemned, and which I don't think would be warranted under the proof, the affirmance of the case must necessarily rest upon the alleged failure of the workman "to make secure one of the joints" of the pipe, as alleged in the declaration, and this notwithstanding that the workman made the connection so secure that it held for more than two and a half years after its installation, without showing leakage during that time. We are not permitted to conjecture that it is possible that there may have been a leakage prior to the occasion complained of. The burden was upon the *Page 226 plaintiff to prove such fact, either directly or circumstantially, if the same is to be relied on to support the contention that the weight of the garage and the forces of nature acting upon the soil did not combine as the sole and efficient, intervening and independent cause to produce the reasonably unforeseeable dislocation of the coupling beneath such garage. The jury should not be permitted to say that a connection joint in a pipe-line which has withstood pressure by gas and the forces of nature for more than two and a half years was not securely fastened in the beginning.
Reliance is placed on the fact that the water pipe-line underneath the garage did not become dislocated. However, this line was a distance of about seven feet from the gas line underneath the garage, and this distance graduated to twenty feet out to the end of the lot at the street, and it was not shown that the concrete wall of the garage had sunk where it crossed the water pipe-line. It was shown that the connections of the water pipe-line were screw joints, the use of which have been discontinued by the United Gas Company, one of the fifty-three subsidiaries of the parent company, and that the use of Dresser Couplings in underground gas pipe-lines has continued to be recognized as standard equipment in general use. And while the failure of the water pipe-line to become dislocated may have afforded the basis of a persuasive argument to the jury, it was an immaterial circumstance for the reasons above stated on the issue of whether or not a Dresser Coupling in the gas pipe-line was a reasonably safe appliance.
It is true, as stated in the controlling opinion, that "the pipe-line did pull apart, gas did escape, and as a result thereof, plaintiff was injured"; but the test of liability is whether or not in installing the pipe-line the power and light company exercised the proper care to use a reasonably safe coupling and had properly installed the same in such manner as to protect against a reasonably foreseeable accident which occurred more than two and *Page 227 a half years after the installation thereof. I do not think the affirmative of this proposition is a debatable issue under the undisputed evidence disclosed by this record, including the facts hereinbefore set forth, and that therefore the directed verdict in favor of the defendant should have been granted as requested.
But if mistaken in the view above stated, I am unable to see how we would be justified in not reversing this case for a new trial on the ground that the verdict is contrary to the great and overwhelming weight of the evidence, and for the further reason that the plaintiff was permitted to greatly prejudice the rights of the defendant before the jury by the introduction of a city ordinance and to contend that the same characterizes as a criminal act the use of a Dresser Coupling in gas pipe installations in Yazoo City. And this was permitted notwithstanding the fact that neither the city council nor its gas line inspectors are shown to have ever objected to the general use of these couplings throughout the city as not being in compliance with such ordinance. Moreover, the plaintiff was permitted in the cross-examination of a witness or witnesses to show that these couplings were being used all over the city, and to demand the question to be answered as to whether or not the witness did not know that the use of such a coupling was a violation of the law. Objection was promptly interposed, but overruled. Witness was then asked, "If it is a violation of law, Mississippi Power Light Company is violating the law all over Yazoo City." This question was objected to without avail. Another witness for the defendant, the one who installed the pipe-line, was also asked, on cross-examination, if he didn't know when he installed this coupling and some four or five others that it was a violation of law in Yazoo City to use this type of coupling. Objection to this question was overruled, and the witness was then asked, "If it was a violation of law, in this short line of 86 feet, you violated the law five times in the construction of this *Page 228 line." As a matter of fact, the city had no authority in the proper exercise of its police powers to adopt an ordinance that would condemn the use of couplings recognized to be standard equipment and in general use by the defendant and other gas distributing companies, which were shown to be a reasonably safe appliance, since to prohibit such use would be an unreasonable exercise of power.
Be that as it may, the suit was not predicated upon the alleged violence of a city ordinance, and the same should not have been introduced in evidence, nor should the plaintiff have been permitted to characterize the acts of the defendant and its employees as criminal when the inevitable effect of doing so would prejudice a jury against the defendant as having no regard for the ordinance adopted by the constituted authorities of the municipality.
The controlling opinion states, and I think with deference it erroneously states, that "the fact of such ordinance was first established by the defendant, although its provisions were not exhibited." The questions which had been asked by the defendant's counsel were with reference to the regulations of the code as to laying pipes "under the houses and up through the floors and walls of the houses and to the space heaters," etc., when he was examining a witness, who testified that he did not put in underground pipes, but only house pipes. He was then asked: "Q. You have a certain specified code as to what should be done? A. That is right. Q. And those pipes are above the ground? A. That is right." In other words, these questions by the defendant's counsel did not justify the introduction of the ordinance complained of or the highly prejudicial cross-examination of the defendant's witnesses in regard to their alleged repeated violations of the law. And it is inconceivable to me how any occurrence or circumstance that may be developed during a trial where a young lady has been burned or injured, through no fault of her own, could have been more *Page 229 prejudicial to the rights of the defendant before the jury, even though the court did instruct the jury that the defendant was not required to use any particular type of coupling but was only required to use a reasonably safe one.
In fact, the court correctly instructed the jury as to the law in the instructions granted to the defendant, but these instructions were not followed, and evidently due to the fact that the jury was led into believing from the city ordinance and the characterization of the acts of the defendant as criminal violations thereof, that the plaintiff was nevertheless entitled to a verdict, without regard to the fact that the defendant had used a reasonably safe coupling and had properly installed the same.
However, as hereinbefore stated, I am of the opinion that the defendant was entitled to a peremptory instruction for the reason that there was no substantial evidence to show that it had not exercised the proper care to use and securely install a reasonably safe coupling, then and now in general use, for the pipe connection from which the gas escaped, and that even though the owner of the lot had the right to install thereon the garage wherever he should choose to locate it, the fact remains that the injuries to the complainant herein complained of were due to an accident which was not reasonably forseeable, the suit here being predicated on negligence and not upon any alleged duty to insure against a remote possibility.
Smith and Roberds, JJ., concur in this dissent.