McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
Plaintiffs appeal from a judgment in favor of defendant entered in the Law Division, Monmouth County, upon a jury verdict of no cause for action.
The suit sought damages for Mrs. Seward, and consequentially for Dr. Seward, for personal injuries suffered by Mrs. Seward in a gas explosion in the cellar of their Shark River Hills summer home.
Dr. Seward on May 6, 1939, entered into a written contract with defendant for the installation of the latter's "system" for the supply and service of liquefied petroleum gas (propane gas) and at the same time purchased from defendant a kitchen gas range and a side-arm heater. The "system" consisted of a cylinder or gas storage tank equipped with a regulator or reducing valve and placed on a concrete platform on the outside and at the back of the house and of copper tubing running from the storage tank to the range and heater.
The contract required Dr. Seward to purchase his requirements of liquefied petroleum gas exclusively from defendant for a period of three years, and this he did to the date of the explosion. Defendant reserved title to the gas storage tank and related equipment and the right to remove the same "in whole or in part at any time without previous notice."
Defendant's employees installed the copper tubing which connected the gas storage tank with the range in the kitchen and the side-arm heater in the cellar. The heater and the hot water tank were located in the far corner of the cellar. The connection to the heater was made by running the copper tubing from the gas storage tank through the house foundation
wall along the underflooring of the house and thence down to the heater.
The complaint charges negligence in very general terms. The pretrial order is not printed in the appendix (see Rule 3:16, as amended, and Rule 1:3-1), and we do not know whether any limitation or clarification of the issues was set forth therein. The allegations of the complaint are that the explosion resulted from the escape of propane gas caused by the negligence of defendant (1) in furnishing improper equipment and appliances, (2) in making an improper installation, and (3) in furnishing an unsafe and hazardous gas.
The explosion occurred on July 15, 1941. Mrs. Seward went to the cellar and lighted the heater after manually turning on the petcock on the heater to start the flow of gas from the storage tank. She returned upstairs and waited about 15 minutes for the water to heat. She turned on the water and it ran hot for 15 or 20 minutes and then suddenly ran cold. She went down to the cellar and discovered there was no flame in the burner and that the gas was flowing. She stopped the gas flow by turning off the petcock. This was 30 or 40 minutes after she had first lighted the burner. There was no evidence why the flame went out nor for how long it had been out and the gas flowing. Mrs. Seward returned upstairs and two hours later went back to the cellar.
She descended the stairway to the bottom step. She detected no odor of any kind. She said she did not know the gas was propane gas and "I had never been told that that gas was heavier than air or anything like that and much slower in dissipating." She lighted a match while standing on the bottom step "thinking if it flickered I wouldn't attempt to light the heater." The lighted match did not flicker. She then went over to the heater, stooped down before the door of the heater, lighted another match, "There was an immediate explosion." The force of the explosion was great. Mrs. Seward was seriously burned; the whole house shifted at least a half-inch on the foundation; a bedroom floor was blown upwards, doors on the first floor were blown off and there was much miscellaneous damage.
The defendant's witnesses testified the gas supplied by it contained an odorant called ethyl mercaptan so that its presence upon escape could be readily detected. The trial court submitted to the jury the question whether this odorant was in fact present in the light of Mrs. Seward's testimony that she had detected no odor. The court, however, refused plaintiffs' request to charge based on defendant's alleged negligence in furnishing improper equipment and in making an improper installation. Plaintiffs contend the rulings in these respects and related rulings on offers of evidence were erroneous.
IMPROPER EQUIPMENT AND APPLIANCES.
Defendant admitted in an answer to an interrogatory propounded by plaintiffs that the regulator or reducing valve attached to the storage tank outside the house was made of "metal and rubber." Plaintiffs' counsel attempted to elicit testimony of an expert chemist that propane gas has an effect on such materials which would cause a malfunction of a valve made of them. The trial court sustained defendant's objections to these questions. This was not error. The evidence was there are many kinds of regulator or reducing valves, and there was no proof which type was installed on this equipment or of the condition of the particular valve before or at the time of the explosion. The storage tank and the valve had been removed by unidentified persons on the day of, or the day after, the explosion.
The trial court, moreover, did not err in refusing plaintiffs' request to charge based on the doctrine of res ipsa loquitur. Plaintiffs' contention was the proofs showed title to and control of the valve were reserved by defendant, that the valve somehow became defective, shutting off the flow of gas to the burner and causing the flame to go out, that it somehow became sufficiently adjusted to cause the gas flow to resume and escape through the unlighted burner. While there were proofs of defendant's ownership and control of the regulator valve, it is pure speculation, in the absence of proofs of its type or condition, that the valve was not functioning
properly and that this alleged defect was "in all probability the direct cause" of the explosion. Cf. Menth v. Breeze Corporation, Inc. , 4 N.J. 428 (1950), at pp. 436, 437; Kramer v. ...