Merchant v. Houston Gas & Fuel Co.

On Motion for Rehearing.

Appellee has filed a motion for rehearing in which it is contended that every material finding of fact and conclusion of law contained in our opinion is erroneous. In support of this motion counsel for appellee have presented a written argument.

We deem it proper to reply to some of these arguments.

The argument first complains of the statement in the opinion that “The witness Bailey testified that the defendant Gas Company when it cut off the gas from the house from which one of its customers removed followed the custom of locking and sealing the meter and that the meter at this house had not been locked or sealed. There is no evidence contradicting this testimony.”

In support of this complaint, our attention is called to a ruling of the trial court which appears in the statement of facts, to the effect that the testimony of the witness Bailey, that the meter was not locked when he examined it after the explosion, was inadmissible.

In so far as our finding above quoted states that the testimony of the witness Bailey “that the meter at this house had not been locked,” the finding is inaccurate; his statement being that the meter was “not locked when he examined it” a few hours after the explosion'.

Appellee objected to this statement of this witness on the ground that “the condition of the meter after the explosion could not be material.” The court ruled that, unless or until this statement was followed by evidence that there had been no change in the condition of the meter after the explosion and before its examination by the witness, the testimony was inadmissible, and instructed the jury not to consider this statement of the witness.

The fact remains, however, that the part of the testimony of this witness in which he states that the explosion was an explosion of natural gas which, in his opinion, escaped from leaking pipes, that gas could not have escaped from the meter if it had been locked, and that the defendant company, whenever it cut off the gas from a house from which one of its customers removed, followed the custom of locking and sealing the meter, is not contradicted.

Appellee next complains of the statements in our opinion “that there is no evidence that the explosion occurred in or about the gasoline stove, and no evidencé .that there was a leak in the stove.” Appellee does not complain of our further statement immediately following the statements next above set out, that there was no evidence that the gasoline stove was injured by the explosion. The accuracy of the' statement of the testimony of the plaintiff Merchant, set out in the opinion in support of the findings.complained of hy appellee, is not questioned. From this testimony it appears that, when Mrs. Merchant went into the kitchen for the purpose of preparing breakfast, “she lit a match and the room went into a blaze, and she ran back into the front room with her clothes on fire." Neither Merchant nor any other witness testified that Mrs. Merchant struck the match for the purpose of lighting the stove, or that she was at the stove for the purpose of lighting it when the explosion occurred. The question was not asked the witness Merchant, notwithstanding the fact that h'e testified that he saw her standing with her back to him when she struck the match.

Appellee further complains of our statement that other witnesses in the case testified that they were in position to observe any employee of the defendant who had gone to the vacated premises to inspect the meter and see that it was properly locked, and saw none of defendant’s employees on the premises.

This statement may be too broadly made, and should have referred to the day the property was vacated and a few days thereafter. This was all that this court intended by the finding. When so restricted, the reply of the witness Morrow, who lived on the lot next the lot on which the house where the explosion occurred was situated, and had lived there for a year prior to the explosion and was living there at the time of the trial, “I guess it is,” to a question by appellee’s attorney on.cross-examination,- “If it was not a fact that some one might have been there a thousand times and cut off that meter and stayed three or four minutes and you would not have seen them?” does not destroy the value of the witness’ testimony that he was at his home situated on the lot adjoining the lot on which the vacated' house was situated, and spent most of his time in his room in the rear of his house, just opposite the rear of *660the vacated house where the meter was located, on the day the house was vacated and for several following days, and saw no employee of defendant on the vacated premises at any time.

Another neighbor of Massey, who lived on a lot.adjoining the Massey place on the opposite side from the premises occupied by Morrow, testified that she was home on the day the Massey house was vacated and for several days thereafter and was in the bach portion of her house opposite the rear of the Massey house, or in her back yard, most of her time during the period stated, and saw no employee of appellee on the Massey premises.

In addition to this, the evidence being sufficient to authorize the jury to infer that the explosion which injured Mrs. Merchant was an explosion of natural gas,' and that no gas could have escaped from the meter if it had been locked, as was the usual custom of the defendant, the failure of the defendant, who is presumed to know whether any of its employees were sent to the premises to have the meter properly closed, which presumption is aided by the statement of the witness Morrow that after the explosion he saw an employee of the gas company doing something to the meter, to disclose such information as it had on this question, should be given probative force against the defendant. Texas Company v. Charles Clarke & Co. (Tex. Civ. App.) 182 S. W. 351; Williams v. Freeport Sulphur Co. (Tex. Civ. App.). 40 S.W.(2d) 817, 825.

The testimony of the witness Bailey shows that he did not examine the gas pipes under the house to see if they were leaking, and that his opinion that gas came from leaky pipes was based solely on his conclusion that, the meter being shut off when he examined it, the gas had not escaped through it.

We have never thought the rule of res ipsa loquitur applies to this case, and that rule is not mentioned in our original opinion. On the contrary, our opinion that the evidence required the submission of the question to the jury is based on our conclusion that it is more reasonably probable from the evidence as a whole that the explosion was due to the negligence of the defendant in its failure to properly lock or seal the meter than to any other cause.

We adhere to that conclusion, and the. motion for rehearing is refused.

Refused.