This cause is in this court on appeal from a judgment of the Court of Common Pleas of Gallia County granting a directed verdict.
James P. Smith and Geraldine Smith owned a home in the Plantz subdivision in Gallia County.
On November 4, 1968, the gas was turned off at the meter. The Smiths moved out of the house about that date to take up residence elsewhere. *Page 284
Oscar Baird, a local realtor, was employed to sell the house. On August 10, 1969, Baird was showing the house to some prospective purchasers when he struck a match in the act of lighting a cigarette. There was an explosion which completely destroyed the house. Plaintiff, Aetna Life Casualty Co., had insurance coverage on the house and was required to pay the sum of $13,965 under the terms of its policy. Aetna under the terms of its contract with the Smiths became subrogated to their rights. Aetna brought suit against defendant, Columbia Gas Co., for reimbursement, alleging negligence in the following particulars:
"1. Defendant, Columbia Gas Company of Ohio, failed to keep and maintain the gas service lines from the meter to the gas company's main supplier line in proper repair.
"2. That the service pipes and/or meter leaked and discharged large quantities of gas into the tank encasing the pipes servicing the house.
"3. The defendant was negligent in not turning off the gas at the curb.
"4. The defendant was negligent in not adding a malodorant to the gas.
"5. Defendant knew or in the exercise of reasonable care should have known that gas was leaking into the basement and first floor of said house."
The trial court directed a verdict in favor of defendant. It filed a journal entry wherein it made certain "observations" of the evidence. The last four of such "observations" are as follows:
"6. Oscar Baird was an agent of the owners of the property.
"7. At the time Oscar Baird attempted to light his cigarette, he was acting in the scope of his authority as an agent of the owners of the property, as he was showing the property to prospective purchasers.
"8. Previously, on two separate occasions, other prospective purchasers told Oscar Baird's real estate salesmen that the the house and yard smelled of gas.
"9. Just prior to the explosion those being shown the *Page 285 property, at that time told Oscar Baird that the house had an odor. Oscar Baird said the odor was from the furniture."
The trial court made the following conclusions of law:
"3. Where three groups of persons are shown a home and all of those groups detected an odor in the house and that odor is identified as gas by two of the groups, the mere fact that one of those groups could not identify that odor as gas is not sufficient evidence to support an allegation that the gas company failed to odorize the gas.
"4. Even if conclusion three, supra, should be found by the Court of Appeals to be an incorrect statement of the law, Oscar Baird had constructive notice that the building contained gas and it would be a negligent act for anyone with such notice to attempt to light a cigarette. Therefore, such action by the owner's agent would be contributory negligence imputed to the owner, and thus required a directed verdict on behalf of the defendant."
The plaintiff filed his notice of appeal and assigned the following error:
"1. The Court erred in Sustaining the defendant's motion for a directed verdict."
We believe that the assignment of error is well taken.
The theory of the trial court in granting a motion for a directed verdict was that Baird was negligent; that he was the agent of the Smiths; that the negligence of Baird carried over to the Smiths because of such relationship; that Aetna, stepping into the shoes of the Smiths by means of the subrogation covenant of the insurance contract, should have a directed verdict entered against it. Such theory is not based on the law. The law in such instances is stated in Hopkins v. ClemsonAgricultural College, 221 U.S. 636, 643:
"* * * neither a state nor an individual can confer upon an agent authority to commit a tort, so as to excuse the perpetrator. In such cases the law of agency has no application, — the wrongdoer is treated as a principal * * *."
Furthermore, the rights of the principal and agent (if such relationship existed) inter se do not measure the rights of third persons against either of them for their torts.
The Ohio Supreme Court has spoken on the matter of *Page 286 the introduction of a malodorant into natural gas sold inSuiter v. Ohio Valley Gas Co., 10 Ohio St.2d 77, wherein it cited with approval the case of Northwestern Ohio Natural GasCo. v. First Congregational Church of Toledo, 126 Ohio St. 140. In the fourth paragraph of the syllabus, it is said:
"By reason of the highly dangerous character of gas and its tendency to escape, a gas company must use a degree of care, to prevent the escape of gas from its pipes, commensurate with the danger, and, if it fails to exercise this degree of care and injury results therefrom, the company is liable, provided the person suffering the injury either in person or in property is free from contributory negligence; and whether, under all the circumstances of a case, a defendant gas company has used such degree of care is a question to be submitted to the jury, under proper instructions, if there be evidence in the record tending to show every essential element necessary to create a liability or evidence of facts from which a reasonable inference might be drawn to support such elements necessary to create such liability."
Upon the record, we are of the opinion that this specification of negligence should have been submitted to the jury.
This cause is remanded to the court below for further proceedings according to law.
Judgment reversed and cause remanded.
STEPHENSON, P. J., concurs in judgment only.
ABELE, J., concurs.