Transcript of Record — Wood v. Gas Service Co. (No. 501)

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: e me ‘ ir ah

, re United Stas Court of. ons:

«Ss @ ce FOR THE EIGHTH erpegr

Nos. 15,608, 15,699 and ‘No. 15 708.

CIVIL.

Meme Wa eS

Pe en ee, t' Ne 15,698.

Tue Gas Service.Company, === of

ows

hae 9 SL On ‘b. No., 15,699,

pahesoniesnys ee Ry ee Paes

“ 4 ; 2 ; : _ Appellee. e | ,

, Burweut Coasrany; Inc., ‘Teron Manu-

. , en Sake

~~ KPPEALED FROM B,UNITED STATES DISTRICT COURT Fou THE .

| WESTERN D OF MISSOURI, WESTERN DIVISIGN] ED) :

HONO ALBERT A: RIDGE, JUDGE. . . :

| . . ee

United Scatien Gourt of Appeals a

FOR THE EIGHTH cikculr. = =. &

‘Nes. 15,608, 15,699 and Na, 15,700.

Set eas

3 aos Appellant, | OO

THE Gas Survice COMPANY, =| Seeks

- ape vs. . Appellee.’ j ee

ALFRED F, MARTi:i, ; ue o

cen ‘ane | Appellant,

| | | ‘Vs. a z = 7 f No. 15,699. |

Tue Gas. SERVICE. COMPANY, ee

° Appellee. } °3

‘Burweu, Company, Inc., TIPTON Manu-

~ FACTURING Co., _GLENRIDGe TROUSERS

COMPANY, AND ‘Enassy Manvuractur- of.

- ING Company, ea! .

Appellants, , No. 15,700.

Baad aes 3 |

THE Gas SERvIcE Company,

-APPEALED , { THE UNITED STATES DISTRICT COURT FOR THE

TERN DISTRICT OF MISSOURI, WESTERN DIVISION,

, HONORABLE ALBERT A. RIDGE, JUDGE. ~

Appellee. -

| INDEX

Vol: I.

Amended Complaiat siaciadiadl PEE er uae: 1

Remdval. to the United States District Court Nenifehtecindiitimnanens’

Me Se

* Defendant's Answer ._..__- ,

Answer of Defendant Gas ‘Service = Company to ‘Plaintiff's

_ Ist Amended rn inenngeonins _ an

. Verdict — itcomialaaaiinastien acca peach van a aa ey call

Judgmen* Pen eRe, Ba :

Pre-Trial Order, ‘Dated “January 27, "1956 sioibhneeilRagbanit sh aaecidieainal “hp

- Pre-Trial Order, Dated February 29, 1956. henna a

Reporter's Transcript of All ee and Proceedings at the Trial i2.

ooo

‘Plairitiffs’ Evidence—

Earl R. Priegel— : |

Direct Examination. ne . *

Vincent ‘Hecht— | |

Direct Examination 8 at .

Cross Examination __*_ jnibeneoseqannaaseeeeeneaNtashintadieen:- a

‘Re-Direct Examination —.~_.. < 17

Re-Cross Examination: ran we

-Re-Direct, sercrccuearts x Salita ~~ <8

J. J. Brant .

“Direct Examination pawend af 18

Cross Examination ‘ cae 19 .

Re-Direct Examination siesnsunen spewed neti taraaieehneenssomnespsii . 1g

_Re- Cross Examination ___ geceelaniniensecenntlnskiogrlins aia AS .*

Martin S. hetio—

Direct. Examination Seneca neennnene :

Cross, Examination DEA Reece ROTO _:...:

-Re-Direct Examination __ - a. a ae.

RTE DUPINUNII, inne sonssoneins snmp Dannicnipenaninansinapuantaingne “me

: oe oF ees ae oy Ken

_ Melvin Fry— ee ; ee

Direct . Examination . ae’

.€ross Examinatics — 2... a

Re-Direct : Exainination’,_. at >

'Re-Cross Examination =": y

Alfred F. Martin—

Direct iienination 2

Cross Examination = edie. es MO

Re- Direct Examination UE LEER EE ROS:

Sam Thixton—

- Direct "Examination = Sa van ra Ce f

’ Cross . Examination = wie unlanalaaitbiatiieinacecuiese 33:

_Re- Direct Examination CE ERI eS OA

INDEX

}

ale

/ ‘o

y 9

}

Re-Direct Examination =

\ _ Cross Exaniination __

. David & Hardy—

ee. 2 Di * E - 2 ti -

Re-Direct Examination ... PEELE LS EIR

‘ Cross Examination. : 4 Ln

‘a.

Re-Direct Examination oon ik”

Re-Cross Examinetion sstolaencntiin

Mrs. Rose” Hardy—

irect Examination

_ Clemont McGee—

————- | Ezeminstion

Cross. - Examination ‘

_ Re-Direct Examination.

Naomi. Wood— |

Direct. Examination —__- »

.Cross Examination

Defendant -by Pl

C. H. Rambo (Deposition)

Defendant’s Evidence—

Vanston H. Ryan— ——

Direct Examination

AAA Oe Remar en ne ewe eens ee emees eee ete enccccetcccencceccoecs

‘Cross Examination

Re-Direct 4 Examination

Dr. Charles Leubbert—

Direct Examination

Cross Examination _.

+ - 58

Parts of Plaintiffs’ Request -for Adindesiann, Super ;

’ with Defendant’s Answers Thereto Read. in Evidence __.

' ~Certain* interrogatories and ar Boavesnae Read to

ee : INDEX ~ ie,

Lonnie Bell— | | ened

Kolker (Deposition) EA NOD PONE Ate a a

" Defehdant’s Motion. for Directed Verdict t Requested at jhe Close |

Court’s Charge: to the: Jury . ceeccceepeeeeteeer Ree eros. we

Plaintiffs’ Exception to. Charge - diamine

Proceedings After Jury Retired to Deliberate

Plaintiffs’ Objections to cerenncainat After Sond Retired - aa

Verdicts. Returned - slhues ms aa

Court’s Comments After. Verdicts - as

Notice ‘of: Appeal to the oe States Court of Appeals for. ‘the

I tinea ise neetanstnlnngpc onicelesiacininpsie 1

_ De@ignation of Record on Appeal - ae ae ae

ee Docket Entries in the United States District Court 104 -

Vol: II

| Plaintiff's Exhibit .6, Picture Showing t Martin Building in

Tipton, Missouri, in Which the Plainti Had Personal Prop- ee 8

erty at Time of the Occurrence in Question —....._-_- =: < f

Plaintiff's xhibit 10, Picture Showing the Maftin Building _ ‘in - &.

‘Tipton, Missouri, in ‘Which the Plaintiffs Had Personal Property TE os

t Time of the ‘Occurrence in Question —____. _ 109

Plaintiffs Exhibit 11, Pigture Showing the ‘Martin ‘Building. in

——— Tipton, Missouri, in Which the. > Sega ‘Personal Property A

at Time of the Occurrence in stion . Se

Plaintiff's Exhibit 13; Picture ‘Showing the West Watt After the

Fire Was esas pula adaiibideekamiapadiddscegeiebcedianthash taggin cious 113 .

Plaintiff's Exhibit 14, Picture’ inowleg the Martin Building = Aas

_ Tipton, Missouri, in Which ‘the Plaintiffs Had Personal Paes

. erty at Time of the Occurrence in Question _... . ..- Y 8

Plaintiff's Exhibit 15, Picture Showing the Martin: Building. in“

Tipton, Missouri, in Which the Plaintiffs Had Personal ee

daa oe

» Loe ee

woe, 4

» ie aca pce eon -ve--

3 s

at Time of the Occurrence in Question ee _ 117°

Plaintiff's’ Exhibit. 19, Picture sspkiaeacareh the North ‘Wall in the

Process of Being Torn DWN ee 119

Plaintiff's Exhibit 20, . Picture Shyeing ‘tthe North Side of the . .

Building As It Looked When We Were Still Fighting the Firec_ 121

Plaintiff's Exhibit 21, Picture Showing the Way the West Wall

_ ‘Looked Part of the Time That There Was a Fire Inside _ - 123

Plaintiffs Exhibit: 22, Picture Showitig. the Condition and ‘the

Men Working ‘here the Next Day 125

Plaintiff's Exhibit 23, Deed Dated Wevenniet 9, 1942, for the West

_ Twenty-Two. Feet, or the Hilgert Building - ins 127°

_ “Plaintiff's Exhibit 24, Picture Showing the Condition’ of the Front

™ of the: Office Building at the pe of — Lihat sosant 129

Plaintiff's Exhibit 26, Detailed Estimate f Construction Job

5 AP RE Pe

rit ia and the

Taken in 1964.20 Building Apartment =

‘Plaintiff's Exhibit’ ‘28, An Enlatgemient of Exhibit 27°... 135

eee

_ ‘Plaintiff's Exhibit st at Dated fed, September 2 sn -*

tween Central

one : .

__? < Tas ee

on : 4 Q . |

‘ or ;

i> gs

‘

BS -

. These three cases were consolidated for trial. The Martin —

‘case was begun on March 15, 1955, by. the filing with the . ~

Clerk- of the Circuit Court of Jackson County, Missouri, of .

a petition, The Wood case was begun on March 22, 1955, -

by the filing of a complaint in the United States ‘District

‘ Court for the Westérn Division of the Western -District.of

_- Missouri.. The Biltwell case was begun on October 13, 1955, -

by the filing with the Clerk of the Circuit Court.of Jack- ~

‘son County; Missouri, of a petition. To avoid repetition, —

the pleadings, orders and filings in the Martin case only are.

reproduced herein. The Martin case was. tried . on an is

amended complaint as follows: x ra

_ AMENDED COMPLAINT.

Comes. now the plaintiff anid-for his. cause of action.

: on ~— States: ee Se

Plaintiff is a resident of Tipton, Missouri, and is the ®

- owner of the real estate and personal property: here- ._

inafter described: Defendant is a’ corporation, ‘duly

organized and existing at law, and at all times men-

< - tioned herein was engaged in the business of - selling

‘natural gas to consumers’in | Tipton, Missouri, and in.

operating and — a gas: Caeiution — for

- ‘that purpose. .

Re ) | ee on

On or about January 3141955, due to the ‘és

| and carelessness of defendant, an explosion and fire

- 5. took place in a building-owned by the plaintiff in Tip-

- . ton,@Missouri, ceuming. loss and Gamage’ to —_— as

; — set forth. at

- Defendant was careless ‘and negligent i in the follow-

ing. respects: Bay .

\ °

. . : . *.8

(a) Defendant caused ond permitted naturel pas.

ee ee by 4

fendant or under ifs: leading to plaintiff's

building and-toenter into said building. ; :

: (by). Defendant* failed to maintain said gas line |

‘ina arias, 0 condition.

“ats

line for ‘the purpose of discovering. leaks,

(a). Defendant permitted said gas line to remain |

- it a defective condition after it knew or should ~

~ have ‘known of said defective condition, and failed

to ‘repair or replace said defective; gas line, and

. failed to warn plaintiff of said defective condition .

and ‘failed to shut off the supply of gas until said _

defective condition could be repagee :

Even if the said pipe was Gqrned by the customer

"(which plaintiff denies), defendant was negligent in

failing to repair said leak, or warn plaintiff of said

leak, or shut off the.gas supply, after defendant knews?!

of said Jeak, or. should ‘have known’ of ia leak. ea

Vv.

_ Due t6 all the aforesaid negligent acts and omissions

of defendant, and to each of them, natural- gas was

. caused‘ and permitted to enter plaintiff's building

wherein it accumulated and exploded, and a fire re _

sulted, apd the following property belonging to plain-

tiff was thereby destroyed or damaged: a twé®stoty

| brick building located on Lots 16 and 17 on Moniteau .

Street in Tipton, Missouri, was damaged in the amount |

of Twenty-six Thousand and. no/100 Dollars - ($26,-

000.00); a two-story brick building | of the value of.

' Seven Thousand Five Hundred and . no/ 100 Dollars

($7,500.00), Jocated: on Lot 16, Moniteau Street in

Tipton, Missouri, was completely destroyed, and was

Bistsais in 1 the sum of Seven Thousand Five Hundred |

. :

= : .”

si “10/100 Dollars ($7,500.00); a oné-story building | a

located.on Lot 16 in Tipton, Missouri, was damaged in |

the amount of Three d and no/100 Dollars ($3,-

~ 000.00). Plaintiff has s ered and will suffer a: loss

income and rental from the aforementioned dama

. but not destroyed, buildings in the amount of Two

* Thagend end er. Dollars ($2,000. veh 2,

SR addition to the damage and ion: to plaintiff of ‘he ;

above real property plaintiff also. suffered, due to ©

the aforesaid carelessness and negligence of ‘delensant

‘.loss and damage to personal property,’ including ma-

chinery, furniture, equipment, appliances, clothing

ian other items, in the amount. of shisty-tye Thou- .

and no/100, Dollars ($32,0 000.00). ; o

All of the ‘said damage and ‘a suffered by plaintiff:

‘was directly caused by the negligence of defendant ”

aforesaid. ~~

- Wherefore, plaintiff prays for sdhaseens against the

" G@etendant in the amount of Seventy Thousand: Five

Hundred and no/100 Dollars: ($70, 500. sal and for his... -

"costs herein. |

‘The complaints in the Biltwell i Ciseuay: Inc., et dl: and

- Naomi Wood cases are identical as to allegations of negli- .

gence. The only difference in the complaints is that in those

. cases the parties were. tenants, while Martin was the owner,

of the - buildings, and suffered differen damages, which. is

not inissue. Therefore, those a have not, been -

— in full here. Pee Bate wD e

. 2

REMOVAL FO THE UNITED STATES DISTRICT COURT. |

In the Martin case service of process and a copy: of said -

3 petition filed in. the Circuit: Court of. Jackson County,

e .

Missouri, having. been — on defendant March 1 15, 1955,

‘said cause was ‘on defendant’s petition and: bond for re.

moval duly removed ‘to the United States District Court for.

the Western Division, Western District of Missouri, on |

March 28, 1955, on the ground of diversity of citizenship,

. plaintiff being a citizen of Missouri and. defendant eying ;

a citizen of Delaware.

- In the Biltwell case ‘service of process et a copy of said

petition filed in the Circuit Court of Jackson County, hav- |

“ing been made on defendant. October 13, 1955, said cause

_° was on defendant’s: petition and bond for removal duly

__, removed to the United-States District Court for the West-.

ern Division, Western District of Missouri-on October 27;

1955, on the ground of diversity of citizenship, plaintiff

_ being a citizen of Missouri and defendant being a citizen of

“Delaware, (The removal: papers are omitted inasmuch as

Pacers the cause is not in issue.) - a

~ =

_ oe

DEFENDANT'S ANSWER. _ ae

_ ANSWER’ OF DEEENDANT Gas SERVICE CoMPANY TO:

PLAITIFES, lst AMENDED COMPLAINT

FILED APRIL 24, 1956.

/First Defense.

Se tee now the ‘defendant and for its first dédeoke —

plaintiff’s Amended Complaint, States that the Court on &

& objections of defendant to the filing. of.the amended com- °

_ plaint because of indefiniteness as to the place of the alleged

gas leak, entered an.order making statements made at a

' pre-trial conference on January 27, 1956, a art of’ the -

complaint, — order is as follows: a ee

“ORDER.

: "By eave of court; plaintiffs. file amended com-

' plaints, subject ‘to theory of parties,” stipulations and

: statements°made at pre-trial conference as shown by |

em]

: ? transcript of record of proceedings. had at such con- >

ferences and filed herein on February 4, ou ee

_ Defendant i s. given ten (10) days to file answers. $5

- That on the pre-trial mney on page 2. of the record e

“the following appears:

- “The Court: Now, suppose you give me your

theory of the case, Mr. Randall. You: ae the rs

plaintiffs in all three of the. cases?. ‘

_’ Mr, Randall: Yes, sir.’ That the explosion: was

‘ caused by natural gas which had escaped from a hole é

in a pipey,located. between defendant’s/ciirb stop cock

and defendant’s meter on the side of Mr. Martin’s. __.

_ building, and that the defendant knew or should have _

. _ known of the condition of that pipe and should-have

-@ither repaired it or warned the plaintitf of the con- ©

- dition , shut off-the gas, while: repairs | were being

made. ” Db :

Defendant éucthe: states that the Amended Complaint :

_ construed with the above statement of the attorney: for

plaintiff on the pre-trial hearing fails to state a claim

showing plaintiff is entitled to the relief prayed for, or to

State facts sufficient to constitute a cause of. action. Aa ;

defendant. !

Second Dedense..

| os \Anewarting paragraph I of the Amiended Complaint, :

| defendant admits the allegations thereof. .

b) Answering paragraph II of the Ariiended. Complaint,

defendant“¢ Genies the. allegations thereof. ee

| hard paragraph III of the Amended Complaint,

defendant denies’ the allegations thereof. CSEER: 3

d) -Answering paragraph IV of. the Risended Complaint 7 :

~ defendant denies .the allegations thereof. ee

4 ‘Answering paragraph V of the Amended Complaint, ~

defendant denies the allegations ‘thereof. | :

*, gg:

t ) Answering paragraph VI of the Amended Complaint, ,

defendant denies the: allegations thereof. ~ |

8)" Ahswering paragraph VII ‘of the , Amended Com-

Further answering and -for third defense, defendant

states that: on or about November. 4, 1938 the. then abut- -

= ting property owneg, on Moreau ‘Aveniie, JJ. Hilbert,

iso as-to obtain natu gas for his property. and premises

in question, installed at his expense the gas pipe between. —

..the curb stop cock and the meter above referred to and .

ene to own and-.control the same, until November

: 9, 1942, when plaintiff, by purchase acquired frém said —

Hilbert the abutting property and premises in question,

including’ the said‘ gas pipe as appurtenances to the realty

conveyed and continued the use of the said pipe and gas.

. appliances to serve his property and premises until after. .

January 31, 1955, assuming all the rights and- obligations

as a gas consumer and customer; that under the gas fran-: .

--* @hises.of the city of Tipton, and the rules and regulations

- then in effect on the respective dates and duly filed with -

and approved by the Missauri Public. Service Commission, |

. it-was the duty and obligation of the owner Martin of the

premises, and as a gas consunger -and eustomer to main-

tain the said gas pipe in a safegefficient and ‘proper oper- _

. ating condition and at his expense and make such repairs

_a8 were required; that if the alleged explosion or fire was ©

cdused by a’leak in the said gas pipe such was not due to

‘any hegligence of defendant, and bars any recovery here-

in: la ae ah st ee ae

Fourth Defense. °- ee og

-Further answering and for fourth defense defendant

states that if plaintiff was damaged as alléged. in -

amended complaint, such was directly due and caused’ in

whole or in part to the acts. and negligence of the plain-

tiff in failing to keep the building in reasonably safe. con-

dition from collapse, and the appliances therein in ‘safe.

‘efficient and~ proper “operating — ineluding. the

ss ]

>... . . ¢

hice : . 4 7

, és

4 eee mS le

« Said gas pipe from the curb stop peck to-the building, all . |

of which directly caused or directly. cSntributed to cause

; seal alleged damages and bars any recovery herein.

‘Fifth Defense:

Further anweering and for fifth ‘Seen. the defend-_

--ant denies that plaintiff is the real party in interest, and

states that he. has no right or authority to maintain this

suit or if he is a real party in interest as to a part of the

alleged damage claimed therein there are other real par-

ties who have a substantial interest in the alleged cause

of action and alleged damages who have not been made

parties to this. suit-and should be joined as real parties -

plaintiff; that said other parties ° are certain insurance

companies, to-wit: the Milwaukee Insurance Company

of Milwaukee, Wisconsin, and Firemen’s Insurance Com-

pany of Newark, N. J., which issued tnd carried on the- —

allegedly damaged. property of. plaintiff fire and explosion

policies of insurance, which said companies shortly after

the fire p@jd plaintiff under “said policies in. settlement

the. sum of $30,500 afd took from plaintiff an executed -

assignment. instrument assigning 6t subrogating over to

said insurance companies all his rights and interest in and

to any alleged claim or cause of action by reason,

_of:the alleged. fire and explosion, : ‘against any third party

such as defendant i in this alleged action to the extent-of —

$30,500; that the amended complaint should show all the

real parties in interest and reveal the actual inte

thereof of each, and if plaintiff is suing or attempting: to

sue as a tee herein, he should disclose the trusteeship

and the(respective interest of all beneficiaries; that the

failure of plaintiff: Martin: to join all the real partigs in .

interest and to reveal their. actual interest in the suit and

proceeding constitutes a violation of the real-party in in-

- terest statute and*the law, and bars any recovery. by. plain-

a. - 38. ;

-Wherefore,. defendant prays to be eeian inl go a

hence with its costs in this behalf expended.

( Filed. in the United sans District Court cree 4, 1956.)

. The answers in the Biltwell and the Wood cases are

the same.as in the Martin ease qgato the issues of liability,

except that the real party in interest defense _was not. as-

’ serted peers —— Wood. oe

SE a ee

. The following verdict was returned in all three cases:

We the Jury in the above entitled: cause; find the

ds issues here in favor of the defendant and against the

Ny Plaintiffs: .

ae v7 W. C. Kamberg, -

caer Foreman of the Ju ury.

(Filed in the United States District Court September 14, 7

1956. é | ;

a °

| "JUDGMENT. ee

It is Partner: Ordered, Adjudged and Decreed by the

. Court that, the plaintiff, Alfred F. Martin, in Case 9689

take nothing by reason of his complaint, but the defendant,

the Gas Service Company go gene herefrom without

‘ day and have and recover of the plaintiff its costs herein |

paid out and expended and have execution therefor.

. (Entered in the United States, District Court September.

_ 14, 1956.) :

(The same. judgment was entered in the other two

cases. ) | cae ae

PRE-TRIAL ORDER.

| At a pre-trial conference held in the above-entitled 2

causes, the parties appearing by their -Tespective counsel,

the following proceedings were had: 7

_ It being made to appear td the Court that a common

question of law and fact is involved in each of the above

7 a sh

same be, and they are herpby, consolidated for trial before

a single jury. - =

_ By leave of Court, plaintiffs will make amendment to ;

each of the above complaints, charging that defendant .

failed to warn plaintiffs of the defective condition of the

gas pipe in question ‘and failed*to shut off. the supply of

gas until said ‘defective condition could be repaired.

_ Defendant’s objections to Interrogatories 27, 30, 32, 33,

35, 36, 37, 38, 39; 40, 43, 44, 45, 46, 49, 51, 52 and 53 are by

the Court sustained. Ss

| After defendant makes answer to siebbinking interroga-

tories propounded by plaintiffs, plaintiffs will submit re-

si 9 |

° *e .

‘ .

quest for admissidns of fact herein. An issue presently. __

exists between the parties as to the ownership of the gas

. pipe from which plaintiffs contend gas escaped into the

‘building referred to in the pleadings. Prior to the next

’ pre-trial conference. herein, the parties will endeavor, to

. Tesolve such question of ownership. _ é

_ The parties will stipulate at the next pre-trial conference

as to the use of depositions and other discovery matter in

each ef the above cases.

Plaintiffs will file with the Court at thenext: conférence,

an: itemized statement .of the personal property°and the

_ damage thereto, involved in Cases 9684 and 10055. In.

_ Case No. 9689, plaintiff will itemize the amount of loss

claimed: to the premises, and other special damages. *-

. Plaintiffs are given leave to inspect and photograph the

gas pipe removed by defendant after the explosion in

‘question.

. All discovery procedure: should ‘Be completed herein

within twenty (20) days from this date. .

-~ This cause is set for further pretfrial conference on Fri-

day, February 24, 1956, at 2:00 o’clock P.M.

It is ordered that the trial of this cause be governed by

the above stipulations and agreements, unless modified by

~ the: Court to _— manifest injustice. ° —

> ( Signed) Albert A. ‘Ridge,

Judge. Ly

Dated at Renin City, Detect this o7th is of. Janv-

ary; 1096. F

PRE-TRIAL ORDER.

At a pre-trial conference held. in the above-entitled

causes, the parties appearing by .their Teapective ‘counsel, _

the following proceedings were had:; _ : ;

Plaintiffs are given leave to file amended complaint in

Cause No. ‘10055, supra, and to amend the complaints in

Causes 9684 and 9689 by interlineation. - _

_ By the above actions plaintiffs seek to recover damages

. as the result of an explosion“and fire which took ‘place

in a building in Tipton, Missouri, in which the plaintiffs

had, at the time, certain personal property. -It ‘is plain-

tiffs’ contention thatethe explosion was due to the negli-

.. gence on the part of defendant in permitting natural gas

to escape from a gas pipe owned by defendant leading |

- into the building im question, or that, if. said gas pipe was

not owned by defendant, defendant had knowledge of cir-

cumstances and conditions from which | it should have

known that gas would eseape therefrom.

Defendant denies that it was the owner of the gas pipe ,

from which any alleged gas escaped into the building in -

question, and denies that it had any knowledge of any cir-

cumstances that er put it on notice that gas was escap-

ing. from ‘said

The ‘parties =e undertake to stipulate, within fifteen .

( 15) .days from this date, the ownership of the premises

and the sidewalk immediately adjacent thereto and under

which the gas ‘pipe in question was located, and ‘submit the

issue ‘of. ownership | of said premises and sidewalks. adja-

cBAt thereto to the. Court for, determination: prior to the

trial of this cause upon: the facts so stipulated; and file

briefs on said issue with the Court at the time of the fil-.

ing of said stipulation. . : | |

Defendant’s Exhibit 1, here marked, is stile and regula

tions for gas service in the chy of Tipton, Missouri, filed

. with the Public Service Commission of Missouri 6n Decem-

. ber 21, 1934, sass by defendant on October I, 1947,

a ee

‘ Defendant’s Exhibit 2, here marked, is schedule of rules

and regulations ‘covering furnishing of ‘gas in Tipton, Mis-

souri, filed with the Public Service Commission of Missouri |

; on January 1, 1952. :

. Plaintiff's Exhibit 3 is an itemized list of damage claimed

‘by plaintiff Naomi Wood in Case No. 9684. |

- Plaintiffs’ Exhibit 4 is an itemized list-of damage. claigned

by plaintiffs in Case No. 10055. :

S Plaintiff's Exhibit 5 is an itemized list of damage claimed

by plaintiff in Case No. 9689.” ;

The plaintiffs will submit to defendant supporting data

__as to the damage claimed in each of the above exhibits, to

_ the end that the parties may stipulate with respect to dam-

ages claimed by the plaintiffs in the above cases.

. Plaintiffs’ Exhibits 6 to. {$ herein are photographs of the ie

Martin Building i in Tipton, Missouri, in which the plaintiffs

_ had personal property at-the time of the occurrence in

question, said: photographs being taken before and after the:

explosion and fire in said building. ;

Exhibits 1 and 2, and 6.to 15, inclusive, are now admitted

in evidence and made a part of the record in this cause:

A transcript of the proceedings had at this pre-trial

conference may be referred to by the parties in explanation . —

of proceedings had at this conference.

The issues to be determined at the trial of this. cause are:

(1) ownership of the gas pipe from which plaintiffs claim |

gas escaped at the time of, the occurrence in question; and

(2) duty and negligence, if any, on: the part of defendant to

inspect and maintain said gas pipe..

. This cause is set for- trial on pets my 14, 1956, at

10:00 o’elock A. M.” .

Plaintiffs will file trial, brief with the hea ten (10) itt

_ days prior to trial. Defendant will file baie brief with the —

_ Court five (5) days prior to trial.

It is ordered that the trial of this cause be eccrine by the -

~ above stipulations and, agreements, unless modified 7 the.

” Court to prevent. manifest injustice.

9 oe (Signed) Albert A. Ridge,:

: paths Judge.

TS te | | a ee

Dated at Kansas City, Misr, this 20h day of Feb

er ;

; PRAT ETE OS ESSIEN AEN LR

"| WESTERN DISTRICT OF MISSOURI.

WESTERN DIVISION. :

Naomi Woop, | ro

vs. : aay :. ‘ : \ . : °

: > No. 9684.

Tue Gas SERVICE ‘Company, a Corpora-

tion, Ria Steet 7

sae i Defendant. }

ty pee Plaintiff, °|

th oP eee, ae 9689:

THE Gas SERVICE ComPany, 3 se een |

7, Pe See te

Defendant. ; |

: es : ne ‘Qa Ot ager

_. Brtwe.t Company, Inc.,; a Corporation; |

..Fypron MANUFACTURING COMPANY, a

- Corporation, GLENRIDGE TROUSERS

*. Company, a Corporation, and EMBASSY: _

_ ‘MANUFACTURING Company, 4 Corpo- ma

_ ration, a

ey eee as — oe —

Tue Gas SERVICE ComPaNy, a Corpora- . ;

tion, | res, ,

. . - Defendant. J 3

“REPORTER'S TRANSCRIPT OF ALL EVIDENCE AND

a PROCEEDINGS AT THE TRIAL. | | :

Be It. Remembered that heretofore, on Monday, the 10th

day.of September, 1956, the above-entitled cases came on

‘13

regularly for hearing before the Honorable Albert A.

_ Ridge, one of the Judges of said court, and a jury, at

.Kansas City, Missouri. |

- “The Plaintiffs were represented by their dninetl, Hogs-

ett, Houts, James, Randall & Hogsett, Kansas. ,City,’ Mis- |

souri, by Messrs. J. D. James; Alvin: C. Randall and Thad- :

deus McCanse; and Mr. Frank Quigley, Tipton, Missouri.

The Defendant was represented by its counsel, Messrs. _

) Charles M. Miller, Don: M.! Jackson and Richard L. —_—_

Kansas City, Missouri.

(Whereupon, the following proceedings: were. had and

_ entered of record: )

(A jury was duly’ selected. end; sworn to | . Con-—___ -_—

_ solidated causes;, whereupon- counsel for the respective.

parties made ee: Statements to ‘he Court and . jury. ae

PLAINTIFFS’ EVIDENCE.

Ear R. PRIEGEL, by deposition, on behalf of plaintiffs tes- .

'° tified: | 2 .

' Direct Siieitiieatie.

1 live iti California, Missouri, cidk Vas saniebinah biasa :

surveyor. At the requést of plaintiffs I prepared a sur-- —

vey of a portion of the city of Tipton, Missouri, including

the intersections of Moreau: and . Monjfeau, ‘Osage and

Moniteau,, Morgan and Osage, and Moreau and Morgan .

_ Streets. The survey included the block on which the Mar-

_ tin buildings stand. They stand at the west end of Block zi

_ C. Exhiibt 16 is the survey that I prepared. |

. The northwest corner of ‘the Martin building, designated

_“X” on Exhibit 16 is 1.35 feet west of the true boundary

_ of Block’ C. . The southwest. corner of that building -ex-

- tended 1.10 feet west of the line marking the west boun- .

dary of Block C and the east boundary of Moreau Street.

_ At the center of the Martin building, that is; at a point —

"halfway between the northwest corner and. the southwest .

- corner of the building. I fourid that the wall was :90 feet

. west of the east edge al Moreau Street and ~ west t ope

oti

-of Block ‘C. . Ths ‘distariecthat the weit ck tiedina ‘west of

the east edge.of Moreau was established by my survey.

Exhibit 16, being the survey, was admitted in evidence. —

Exhibits 17 and 18 ‘are plats which I prepared showing

the location of various gas pipes.with relation to the Mar-_.

tin building and with relation to Moniteau and Moreau .

Streets. (Exhibits 17 and 18 are admitted in evidence sub-’

. ject to proof of the measurements and other dat

ignated “Gas Main” (Exhibit 17) was located ‘feet out

from the curbing on the west side of Moreau Where —

Street

I show the two-inch gas pipe that crosses

and then branches off north and south for some distance —

on the east side of Moreau. Street, I located. it 1

. north of the alley. I was told that the two-inch-

"tended east from the main to a point

ELS

wart

' concrete patch north, and by measuring the distance

- theold pipe to the ‘south, I was able to show the

of the underground pipe. _ “ 7

. Exhibit 18 is a profile.of the west side o of the

‘wall showing the sidewalk, pipe and meter box,

pipe and the outline of the meter box is shown int

-Tiser that extends downward from the meter box

eight inches out from the building and 29 inches

Then I showed an “L” connection and extended 2:

the width of the sidewalk 7.6 feet and two feet into

‘street. Exhibit 18 is.drawn to a scale of one inch to

foot. The riser j is 29: indhies fren the surface of. the side-

* walk ‘down ‘to the ““L” connection.

Sams '6. pieeecies n Sestn, Miteeneeh, itn fais eins. ,

“ the chief of the volunteer fire department. I was called to

_ afire in Tipton between 2:15 and 2:30.a. m. on January 31,

1955. . When I arrived.I could s¢e that the northwest corner ©

it pulled down. Boe a ae } | ae

_ Exhibit 19 sliows the north wall in the process of be

ing torysdown. | Exhibit 13 shows

-: Exhibit 13 was taken before Exhibit 19. Exhibit.

the north side of the building as it looked when

Still fighting the fire,, The light - colored marks

\\ oe gee nee eae eee ne that is

the after

i fire-was put out. We pulled. that roof sideways’ like that: ~

20 -

dence)

door to the west of the Martin building by the Gabbert

- Garage and there was a door to the north of the Martin -

-building by the Skelly Oil Company. I could inot say _

that I saw marks on those buildings, and do not remem- -

_ ber the condition of the doors.

There were several men from the: gas company. enn”

a test and I was asked to witness the test. It was made by a

the Veatch Construction Company, The Veatch’ Construc-

tioe Company building is just to the rear of the Martin |

- , office building. The south line running across the side-

walk is the one that was tested. He put on an instru-

ment that resembled a tire pump with a’ gauge. He at-

a ts Be it to ™ pipe an the west side of the meter be-

‘

"16

9¢ iia laa ads tl ata He attached it right at the _

meter, not to the meter, but to the pipe. He pumped it-up .

‘adun doe de cee dt remained

‘constant during the three ‘minutes that I watched .

\ ae eae ar Cress Examination: |

The tent was nusde at two or three o'clock the next'after-

‘noon. .I would say that the test was made somewhere be- °

Lan a eke

I was at hae hen Ieee notice of the fire, about

ble the scene of the fire. I .

secondsfloor was down.on the first floor and was burnings

I think the doors I saw were ‘solid, with no glass, but:

I am not sure. _I made no special trip to see the doors.. I

‘before I did.’ I do not know whether the doors had been

moved: All I know is that I glanced over there and saw

_ them about fwo hours afterwards. .I would not say: it was

_ two hours afterwards, but it was after the fire was pretty

‘well under control. :

" We kind of pulled the.roof over as shown in Exhibit 13:

I think we pulled it to the west. We hooked a ‘truck onto

it. I:don’t remember what its position was before we

started pulling it. There was.a lot of brick over the side-

walk and-meter. At the point w the meter. was the

-brick was three or four feet high. . The brick was there

before we pulled the roof over. It was brick from. the -

west wall. ‘It also covered the sidewalk clear out to the :

—_ a

‘es

, F

Ze.

PEs

Fit

_ Mr. McGee was the man who ordered the test made and

. Called me over to witness it. It Wa8 about 2:36 in the after-

noon of Monday the 31st. I left there about 6:00 that |

morning and went back about the middle of the morning.

-. The telephone company and the gas company were working |

at the scene when I came back. When I speak of the curb

_ I mean the outer edge of the sidewalk. ae

«Phe Martin building was constructed of brick and the

floors were of wood. I would say, that the west room, re- 3

. ferred ta as.the office was twenty feet ‘wide and fifty feet _

north and south. i. Soe e

oS Re-Direct Examination. :

The first building on the west, the office building, was —

about twenty feet wide, and the second floor of that

building had collapsed sometime before-the picture was |

taken... The second floor of the second building from. the

_ corner where the sewing machines were kept was still in-

_ tact, ales ee a ee See pl

Re-Cross Examination. = —.

.. By intact, I mean they were still-in a horizontal posi-

- tion. The roof was off of the office part of the building,

_ but was ngt-6ff of the second building from the corner.

’ That was wherg the fires were burning near thé roof.

Exhibit 13 shows the west wall of the room immediately

-Toof-is indented down. .The front wall was not down on

east of the office building to: be partially down. I think the — |

eh, : t r. ee >

. - , ~: :

. > Sie ene room. Part ‘of the west wall of the seednd ~

ne i Wey 7

} tee tented Gu tess ahh Gnd ic Go oe -

ing of the first story of the‘second building from the corner:

we ee eee

J. J. Baan, ‘on, behalt of plaintitis, testified:

| Direct Examination. a

: : live at Tipton, Missouri,. and am District Sanaa for

. the United Telephone Company. My office at one time

was located on the second floor of what is known as the :

Martin building. Pretrial Exhibit 1% is a picture of the

Martin building. We occupied thé second floor on the

'_ Moreau Street side of the building. The meter shown in —

the. picture. is a meter that. was in existence there at: least

| some of the time that our office was located in the build-

ing. When the telephone office was there there was an

outside stairway that led down to the street.

_- I have been with the telephone company in Tipton. for of

a total of forty-two years. We moved out of the second

- floor quarters to a building which was attached to the

south of the building which we had previously occupied.

__ When we moved to the first floor quarters we had natural —

gas service in the:second floor quarters from which we -

moved. I think‘the meter shown in the picture is the one

from which we received service.

I think ds Gia Siolon io 0 and.I belid that j

we received it in our second floor quarters as one \of the |

» first users. I would say that we had had gas ever since |.

1933. - I don’t remember whether the line that was put »

in from the main to give us service clear up to the meter

was all put in at the same time or at different ti * e

_ do not know who put the line in, but the telephone \

pany did net put it in. It was .someone other than the

-19..

_ FI think at one ‘time pre gas company wuld lay your

line to your residence for one dollar. At the time the .

‘service was put into the telephone company and the meter. |

put right next to the outsidé of the building there was about |

'.two and one-half feet of dirt at. the edge of the building,

which was later covered bysa sidewalk. The outside stair-

way was taken down sometimé after we. moved from that

space. It was after 1938. :

‘Cie: Examination.

jel ‘would, not know whether the service that I knew .

originally came in off the alley and ran up the property line

‘and into the building for the telephone company. I do

back of the building came ‘into.the building. from the alley. ~

{ could not. definitely: say when that meter was. put in,

without some records. I do not remember whether, when

the meter was put in, they ran any kind of ling across

the street.. I-do not know who put. that line ‘in: I do not

know whether a plumber put the line in or. just who did

__ don’t know who paid for it or who put it in.

: Re-Direct E-candiiation. =

I I do know that my. company did not put it in. and I am

just — my, best recollection. % Ke

= r : Re-Crovs Examination.

The telephone company did. not send ‘sillinbolty down

to excavate and put in the Pipe in there. That is ; all Tam

we. os

| Mann S. Bartirs, on behalf of: plaintifts, ‘testified:

- ., + Direct Examination. ; | .

I live in ‘Tipton, Missouri. t was night mexshal in ‘Tip. "

ton in January of 1955. On the night of. January 31, 1955,‘ ..

I heard a noise, a kind of a thud; I don’t know just how

you would explain it. I was about one block from the

“aN 2 : er Z es, « | °

\ t > +

not remember whether the gas line back in the alley in-. .

it .I cannot say that the gas company put it in.” I just ii

we De

Martin building when I hedfd the first noise. I was walk-

' ing away from the building at the time facing east.. I turned

around to see what I could see, and I did not see any-

thing: I walked gver to the depot where there was a

truck that had just: pulled in and Pcs: cae had hit a

-Yailroad car, but it had-not. I went maybe one hundred

-feet to the depot: I then went on up the street and I was |

. at the Ford Garage when I heard the second noise. She.

exploded and fire followed that: That noise was consider-

_ ably louder than the first. I was about one-third of.a block

_. from the Martin building at that time and across the street.

- I saw the fire, then I turned in the alarm. < - : oes

_ “I later went back to the scene of the fire, and I saw a

_ door lying’ west of the Martin. building at Gabbert's Ga-.

_ rage. (Identifies Exhibit 10 as a picture of Gabbert's.

. Garage.): — ; diene ng Se Baas

__ I had been at the Martin building before .I heard the

first’ noise. I had just walked about one block from the.

building when I heard the first. noise. I had ‘checked the

building to see if the doors were locked, and they were. _

_ The noise was a kind of a thud, it was very loud. In

a way, it soundéd like a cracking or breaking. I ran over

‘to the depot and right back when I saw everything was all

right and had gotten to the Ford Garage. The Ford -

_ Garage was about one-third of a block from the- factory

'.on the opposite side of the street. It was about 100, 125

or 150 feet from where I was when I heard the first noise to

the depot. I just whirled around and came right back.

running. I wouldn’t know how long it took me to cover

the distance that I covered. between the two’ noises, maybe

three minutes, something like that. After the second.

hoise I saw the fire and stuff flying from the factory. It ©

» seemed like the flames were going north and northwest:

I went home to tell my wife what had happened and came -

_.- back to-the scene in a few minutes. )

_., I do not remember seeing a door.on the north of ‘the :

-, building. I do not’ know°whether the door I saw on the

“west had. glass-in it. I do not know how it’ got there. I.

eek

a) es

do not mealies what kind of door it was on ‘the north

of the Martin building leading to the apartment. The fire:

'_ that I'saw came out of the roof on top on the northwest

corner, it seemed like. be |

Re-Direct Examinatios.

; When I heard the second noise I was standing in such

_a position that I cotild not see the west side’of the building. ©

I could. not seé. whether there was anything blown out,

, there, doors or anything else. From-the time of the blast. . &

‘Iran.i00 or 150 feet to the. depot, then ran back about. m0. ets

feet wher I heard. the second noise. -

; ‘Re-Cross "Examination.

OF! did not see = fire after the first noise. ..,

ie |

) ae a on. behalf of plaintiffs, testified:

see eee ” Direct Examination.

UL live’ i in ‘Tipton, Missouri, and operate | the Skelly Serv- £

-ice Station’on the corner.of Moreau ahd Moniteau, shown

“on Exhibit 19. It is right at the corner. directly across the

_ street north from the Martin building.. I arrived at the

scene of the fire about 3: 30, about ene hour after the: fire '

started.

_ When I arrived I found broken pee saltineed all over,

my drive, and one of the front doors from the Martin

- building laying right against the pumps.” There were

also some’ window: facings,. or debris, back pumps

’ on the west side. The door was part: ofthe double door

right in the middle of the office building shown | in Exhibit \

15. The door was sort of ‘broken up. :

The building was still burning when I arrived: When’ I.

- got there. the. second. building from the corner, the one

Next to the office building was burning pretty big. . It |

looked like flames were going up from about the. second :

floor. The second floor itself, that is the partition sep-. .

3 arating. the first and second stories, was. still up and had

| ~ aes : when I arrived.

, ~Y , a |

ass There was one glass broken in one ot my pumps, and

. there .were fresh cracks in two ~—_ that MENS a

Cal on my station... .

ia a Gad ie q.

wr “. . Cross Examination.

I live about five blocks from the Martin: building. Some-

_ one called me and told me of *ue fire, I did not hear the .

alarm or the explosion. .I was asleep. -

. I did not go into the Martin building ‘when I arrived,

I don’t think anyone would have gone in at that time.

Exhibit 21 shows the way the west wall looked part of the -

.time that there .was a firé inside. In the picture some of

_ the brick arid stuff is out over the curbline into the street.

__ There was some out there whilé the fire was. still burning

- . The picture is something like ‘what. it. looked like before

daylight. The fire that I saw when-I arrived was back

_ of the word ‘“‘C-C" on’Exhibit 20, between that. west. wall

4 in there between that building’ and the end building. I

stayed around-unifil daylight. - (Witness identifies Exhibit

-13 as a picture that was taken the next morning looking

_from the west side southeas$ into the building.)

‘Re-Direct Examination.

I observed-the windows in the Gabbert’s Garage across

the e street west of, the Martin building that morning. The

Targe windows in his showroom were broken and ‘most of.

' the glass was laying on the inside of the building. ‘There

"was another window out in the shop, and it seemed that

_ the. glass had fallen out of.that one. I think maybe they

boarded the windows ‘up at that time and later put in new

glass. Exhibit 10 shows one of the windows in the.garage

that was out. It shows the large one. There was another

_ one back of’ this “end that was out. gmt

. ‘Re-Cross Seiinisiation:

4 think I remember men cleaning -up brick and dabei |

en the sidewalk the next day, trying to get to the meter. .

Exhibit 22 looks to be a representation of the condition and |

the‘inen working there the next day. That was before the’

north wall was.pulled down. In Exhibit 22 the brick wall

' that was between the west building and the next building

is down. except for one piece. that sticks 7 7 “(Exhibit a ..

‘is s received in : eyinence: ).

ALFRED F.-MarttN, on behalf of plaintiffs, testified:

I live at Tipton, Missouri, and I was owner of tthe com-

bination of buildings known as the Martin building. I

acquired those buildings over a period of from about 1939

to 1941 or 1942. Before I bought the buildings I «was al-

Teady operating a pants factory at that location.as a renter.

‘I started that in the Fall of 1936..

At the time of. the fire I was in Sen Antonio, Texas, and

I was notified: of the fire by my wife. It took'me about —

fourteen and one-half hours-to drive back from San An-

tonio. I arrived in Tipton about 8:15 Monday evening,

and went to the scene immediately. I found the new door .

to the apartment on the west side of the building was

across the street. The door had been on the first floor, but

it was the entrance to-the second floor apartment. It was

across the street at Gabbert’s Garage, and another door was

in front. of the service station in front of the building.

‘There had never been a fire or explosion on those prem-

ises before. -‘While on the premises, I never smelled, or

‘thought I smelled, the odor of gas, ci |

I had lived in Tipton about three years ion I started 4

the business there in 1936. The first building I pu

was the easternmost of the three buildings en

‘I started the business.there, the meter ‘shown in Exhibit 15

at the edge of the west building was already in the position

shown ‘in the picture. That particular building was not

mine at that time, but I purchased it in 1941 or 1942. Mr.

Hilgert, who then owned the corner or west building, Built

a small building for the telephone company in the rear, .

and it. was at that time that the concrete sidewalk was

put in’flush with the west building. That. was when the

telephone company moved from the office space on. the

second floor of the Hilgert building to the new building in

)

the rear. It was 1939 or 1940, thereabouts. The sidewalk was” af

covered from that time ‘up to -the time of the explosion. |

Prior to that time, according to my recollection, part of the

sidewalk was made of. brick and part of it was boarded

_ walk. I don’t recollect that there was any. space between

- the sidewalk and the building. I imagine Moreau Street

.. is about sixty feet. wide. ;

- To my knowledge, I believe that my building was built

right on.the property line between the lot the building was

on and the street. The building has-been rebuilt since the

fire and the west wall was rebuilt in the mune position in

‘which it existed prior to the fire.

I never installed any service line in Moreau Avenue or

on the west. side of the, building. Any service lines. that

existed there were already in existence when I acquired

the property.

We installed'a service line in 1937 when I was renting,

_ but it came into the rear from the alley and was installed

** in mtige ei building on the east, which is shown in Exhibit

t service line was extended from the alley . to a

| aa just outside the building at the rear, a foot from the

+——~puilding. The rear of the easternmost building at that

_time was about 120 feet from the alley. The gas company

- put in the service line clear up to the meter about one foot

from the rear of the building. I did not pay for the. service

line. The. line was for a three horsepower boiler. :

. Every individual factory machine had an electric motor

at the time of the fire, In the corner building or office that

borders on Moreau Street we had two steam heaters with

electric motors that were thermostatically controlled. One

was in the front office and one was.in the immediate of-

fice in back of that. Those motors would go on or off..

I had never seen the service-tine that went from the

meter on the-west side of the building over to: the main

2 on Moreau Street, prior to the:explosion and fire. Some- .

(time, after the fire I learned that part of. the pipe had

., been removed,. About three days after the fire I learned

- ” ‘that it had “been taken by the Gas Company. to: Fayette.

No one at*the Gas Company had mentioned anything. to

me about taking the. pipe, or asked me if I wanted to in-

apes 5 it before — took ® eee Bae Gat ws

Ss ~:~ ov CUlUmwm =_— Gl OE

nti, |.

oe L cl ba ail

- - From the time I acquired these premises up until the |

time of the fire and explosion the physical condition of the

building and the sidewalk and the ground in the immédiate 3

‘ area of the meter shown in Exhibit 15 remained the same.

. With the exception that I stuccoed the outside of the west. ’

wall, the physical condition and appearance remained the

same for about fifteen years before the explosion. There _

was no-digging in the sidewalk there that I know of ats

to the explosion...

'.At the time of the fire I noticed that all the front plate

glass windows in the Chevrolet garage across the street to

: :ne west were either totally : broken OF -cracked.

The west building, which had ‘the office’ in it, was

_ separated by a- fourteen inch brick: wall on. the east from —

the rest of the.factory. The office building itself’ was en- -

closed with théexception. of a steel fire door.

“Q. Did the gas company or-any of its men ever

- tell-you prior to this fire that they had had to dig up

- ' Some 660 feet of pipe tdjacent to — — te-re-

place it?

Mr. neces “Object to that as not material to the

‘case.

Mr. Miller: Too remote, iis not ‘on to prove or

disprave any issue in this case. . :

(Thereupon there was a discussion out of the heat

ing of the jury concerning the ‘proposed evidence,

_” and particularly concerning the question of whether -

‘or not the gas company owned the pipe, and whether or.

not they had a duty to inspect. or notify Mr. Martin in

the event that=they did not own the’ pipe, including

the following:

testimony that you had hetter put it in by what was

‘actually done, not by conversations with ey: at

the A eed oonpeey -_. ati on. Ai

The Court: Now, I think. with reference to this. ~

- ee

, i os .

Sh [<

Mr. James: Well; his answer was going 6 be there

Was 20 coms tion.

The C Then what are we arguing about?

Mr. Randall: ‘That they failed to give hiri notice

| . when they should have, when they had circumstances

that indicated danger to him. —

The Court: If it is your pipe and the gas company -

had -no- knowledge or reasons to know that there was

» a leak. in your servi¢e pipe, then they had no duty

whatsoever to inspect that service pipe,

Mr. James: Judge, that is squarely in ‘the face of— ;

The Court: And it was merely d pipe that. probably

would leak, there was no duty upon them. whatsoever .

to do anything until barteal had ne that there

was ‘any. ) |

Mr. James: I would like as say this, I ‘oan’ agree _

_ With you, that even if this is our pipe then they’ have

to have actual, notice of a leak before .they do any-

“thing about it:

~ The Court: Or circumstances which would lend “

them to knowledge ‘of a leak.

Mr. James: ‘Well,. that is what-we are trying to

put in evidence, that they have circumstances ‘that

, Should lead them, as reasonable men handling gas, to

knowledge of a leak, and that surely if this pipe under

the sidewalk is ours and under our control, it is not

any more ours or under our control than house pipes _

would be, and the Missouri law, in the case of house

pipes, is clear that whenever the Gas Service Com-

pany has knowledge of any facts that would put it »

on inquiry and. the inquiry—a . reasonable inquiry

would involve a leak, then they have got a duty, re-

-gardiless of their cogtrol or ownership of the pipe, to

~ either repair the defect or to shut the gas off.and give’

the owner, the customer, a chance to repair.

- The Court:. I don’t disagree with you at all if you

are speaking about -an actual leak, leaking gas, gas.

Qbphysically. escaping from the pipe, I don’t disagree

with you at all. If they have knowledge of gas actually —

escaping then — have ‘that vines But they have

-. no.duty whatsoever under ‘Missouri law to inspect

service pipes where there is just. a likelihood of a

leak. You are talking about the Helmets case,. are you? -

Mr. James: The Helmers and the Peyton case.

__ The Court: “You have got to.consider the facts in the

“Helmers and Peyton case together with the ‘state-

ment of the Court— co

Mr. James: In neither ene did they know that .

’ there was escaping gas. Bee tie, ae a

The Court: - Well, I will give you a chance to con-

- vince me.- I am not foreclosing you.” eee

_ There was a crawl space below the floor of the west or

office, building. There were four steel or iron registers

which were located in the floor near the wall just on the.

other side of where the meter was located.

: -. Cross Examination. .

_ ‘Before 1933 I lived-in Kansas City. I have no knowledg

of conditions in Tipton -before that.time. I went in busi-

ness_in. Tipton in \1936 and rented ,the east building. I

didn’t buy the west building until 1942. There was no gas :

-in-the ‘east building] at that time.. I, as tenant, did not pay

_ for the service. whén it was put in ‘that. east “building. I

don’t know about: what arrangements may have been made

. between the landlord and gas company. icy

When I was a tenant in the.east building I had to pay my

telephone bill at the telephone.company in the office on the

second floor of the west building. There is no doubt but: ~

what there was a meter there at that time. In 1936 part

of the sidewalk was wood and part was brick. .The part.

next to the building was wood. The sidewalk was changed

in 1939 or 1940. It was when -the telephone company

moved from the upstairs quarters to their ‘new building. I

‘think ‘it was 1939. © > eer | ite

I believe the service pipe was taken out the second or

third day after the fire. I saw the men digging there, but

I did not know what they were digging for. I did not ask |

them any ‘questions. I did not complain or protest, because

I did not know that I had any reasons to do so.

_ I bought the first. building on the east in 1939. T next

bought the. middle building and then the west building.

With all three buildings I had ninéty-four foot ‘of frontage .

_ and two hundred feet deep. The two story building was

_ sixty feet deep. When I bought the buildings they all

‘had. solid walls between them. I did not know how old

_ they were. The photograph marked Exhibit.15 has a date

_ 1890 at the peak.- They were probably about fifty years

old when I bought them. They had brick walls. ° I took

* out the wall between the east building and the middle

' building, and put an eighteen inch steel beam north and

'. South and a steel beam east and west with steel columns

to support it. The west building was twenty-two feet

wide.’ When_I took the wall out it left the upstairs just -

ofe room as far as the east building and the middle build-—

'_ing were concerned.: I had columns: supporting the beams:

* on the first-floor and: the second floor was supporting the ©

roof. The second floof was made of ‘wood Jaid on 12 inch.

joists. They Were anchored. in ‘the brick . I later

_ cut archways eight feet wide in: the east wall of the middle.

building after I purchased the middle building. I had three.

. archways on each floor.. The wall itself was fifty-five, feet

long. When I put the stucco on the west side of the build-

ing, there was some humidity on the inside of the first

floor, but none upstairs. The only way you could put the

.Jéhns-Manville plasterboard was to tack strips and then

put the plasterboard on the strips, and that is what I did.

"We drive nails into the brick .on the west wall. . When:

-I finished that I put stucco on the brick facing of the.

west wall in 1942.

- During all this time either I, or now one of my tenants, .

_ Was. eperating 165 to 170 machines in’ the building, but

none of them-were ever in the west building.. That was an

apartment. They were all in the space east of the west

building. They weigh from 160 to 170 pounds, including

- the stand on the machine: In addition we had nine pressing’

_ machines that weighed about 400 pounds. These were on

_. the first floor. We also had a machine that supplies air to

. dry the trousers on the first floor which weighs 350 or

400 pounds. I own about 180 machines all together. At

the’ time of the ire I; was renting all. the space east of the

wath biden fie sonpeaten aie 1 eel eee

also own some machines of their own, in addition to the .

one that I rented them. Some machines were'on the first

floor and some on the second floor on the factory part of ——

the building at the. time of’ the fire. _About-December,

1954, some machines were moved from downsiairs ta the |

upstairs part of the factory. .I think after the move there.

(9M =were probably about 100 machines. upstairs. . Probably

105 people were working upstairs. The tenants. had the

~ right ‘to: do’ whatever they. wanted to about moving. ma-

chines, but I talked with them about the proposed move. .

We put in no. additional structural support when the ma-

chines were moved upstairs. ra) 4

. After the fire we noticed that’ the second floor was

bulged, or. pulled<out from the wall at the extreme -east

part of the factory building about. some one-half to three-

fourths of an inch. There was no fire damage clear over

to:the east wall of th€ factory building. The ceiling was.

scorched and there was water damage clear over at the ex-

treme east wall of the fact ry building.

. I. bought the west building next to Moreau Street in

the Spring. of 1941 or 1942. -At that time there was a .

‘grocery store on the first floor of.that building. -Inside.

the’.west building and at the back of the building was a

stairway that went fo the-second floor, There were three

or four rooms on‘the second floor and a‘ doctor’s office.

_ There was gas service supplying. the second floor when I

bought the building in 1942. From the meter the pipe went

_ through the west wall and right straight up to the second

floor, then it went north and south and into the back room. ;

In 1942.the pipe went: just a little way to the north of -

where it entered the building. I don’t remember whether

‘there was a heater: in the bathroom at that: time gr not.

It went to a heater.

I remodeled. ‘the upstairs dnerteint in 1953. Among

- other things I put &new stairway. frdém the first to the sec- —

ond floor and.a new door leading to. the stairway on the

first floor. It was & solid. panel door. There is a hallway

when -you get to the top: of the stairs and then’a door . -

_ leading into the dining room and one into”the kitchen. I

changed the —— to. make a a four room apartment, pat :

: ° |

ee > «s

30 5

; . & Pa . : ei es cme

in steel windows, kitchen cabinets-and new bathroom fix--

“tures. . In the west building there was a hallway leading

—~from the door to the stairs to the apartment.’ There was

with a doorway leading from the hall into my office.

were two rooms’ in my office space, 12 by 22 and 8 b

Then there was a solid partition on the north of |

' fices separating them from the employees’ entrance.

was an outside door right next to the meter on the west

of-the building leading into the employees’ entrarice. There.

was a hallway running clear across the west building and

into the factory. The-hall: was seven or eight feet wide.

The north wall at the hall didnot go clear to the —:

. North: of that wall was. the general office. -

_ After the apartment: was ‘remodeled the gas service pipes

~—ran. from where“ it been from the ceiling of the first

floor, ran under the floor and back to the corner where

the bathroom was. There it served an automatic hot water,

heater. The hot water heater was near the brick wall: I

also ran a line. to the kitchen from the riser right back

* along the west wall. That is on the inside of the west wall. .

_ The kitchen was in the southwest corner of the apartment. —

«The gas reached just inside the partition,’ within about

twelve feet of the south ‘corner of the second floor. This

-- connected to_a stove which had a pilot light. I also ran

a line to the fiorth to the second room north of the kitchen. -

_ to an automatic heater with a pilot light. :

Starting from the front I had one bedroom which covered |

the entire width of the building: .It was about twelve feet

deep., The next room back of that. was a living. room -

which went the entire width of the building with the ex-

ception of closets. Back, or south, of ‘that was the dining -

| room and back of that was-+the kitchen and that was in this

‘corner. Next to that in the other corner was the bath- .

room. That was the way the second floor was at the time

of the fire. The door to the apartment entrance was a

new Stained door. The door-leading from the apartment

entrance hallway. to my office was also a solid door as was

_ the door.to the employees’ entrance. The doors upstairs

were also sdlid doors. ‘The front doors were double doors

‘and opened in the center. They . were also solid doors...

op. :- — er he eee 8,

tw See, red

as ak dees te cay ellen as tes Uh tte oh

hallway just inside. the employee's entrance leading into

my office. Up to the front there was a swinging door. Hit,

- There was a register in the floor at the northeast corner -_

of the building and one in the northwest corner of the ‘

_ building and on the east wall about halfway

west wall was not more than twelve inches of where.

the pipe. comes through the wall. It was six feet. north of”

the hallway..

'* Back of the employees’ haierity dine tte adties etl thon 3

‘my two offices.and then. an office back of that. There was _

a partition running north and south. A solid-partition.. It .

ee eee ne ne eee re ee ee Ot

SIMO he”

: The sidewalix on the west side of the building running

aithh anid candle sns'6 Wile Over caves tent otha At the |

_ edge of the sidewalk there was a curbing, or step-down

_ from the. sidewalk to the street, or the divider between :

the ‘street |

@. e604

boiler in the back of the building of the factory part. The ..

. Steam pipes ran on the ceiling. A two-inch main line fed .

- thé pressing: machines and then a two-inch line branched ae

_ Off into a one-inch or three-fourths-inch line to the heater:

I believe there were seven space heaters all told hanging

fromthe ceiling. Also-there was a sprinkler system all

through the manufacturing plant. | .

The door. that went up to:the apartment ‘was the deor

_ that I saw across the street at Gabbert’s Garage. I did

not see the employees’. aac aae a =e T saw.

rept front entrance door at the ys .

° There was about sixteen to eighteen ees of space be-.

. tween the ground and the floor joists of the office building,

and I put the registers in for: ventilation purposes. I never

sthelled any gas in the area of the office building, and my

tenants never complained that.they had smelled any gas.

Carver.was thé maintenance man for my tenants in the °

ad building. but when he was there on, Sundays. he

‘ ‘L taapla Wile Mate wen ted canees Messen Swrect trees

the main near the west edge. of the street'to the building

then known, as the Hilgert building. I recall repairing the

street afterwards.” As far as I can remember this took .

place in 1932 or 1933, something like that. I think the

whole line from the main up to the meter was laid at the

- Bame time. et a —

| =

ctice was on the second floor of the Hilgert building at

y that time.

ine tn haitens 40 tain ae susieds, ‘The Ges Com:

pany laid the line. -I do not know who laid the line under

the walk. If I ever said I did not know when the

ee ee ee remember it.

Ome \ dake ide teens ¥ oun toes Odea os ons ike

that came. across Moreau. I do-:not know who laid the.

line under the sidewalk: It was not part of my duties as

street commissioner to: maintain the sidewalk.

Orro Canvas, on. behalf of plaintiffs, testified:

Direct Examination.

oe live in Syracuse, five miles west of Tipton, and work

for the Tipton Manufacturing Company. I have worked .

for them since 1940 or 1941. In: — 1955, I was a

mechanic for that company. Se} ‘

“| arrived at the scene about 2:30 on ‘Jentan 31, 1955,

after the explosion ‘and fire. The fire was -burning and-

the building was partially destroyed. After I arrived I

-. went into the building on the east side downstairs and

on the east side upstairs and turned off all the power: Then

F went in the middle room of the downstairs front and ©

shut off the sprinkler system. .The middle room is right

_ behind the outside water hydrant shown in Exhibit 15. It

is the east side of the first floor of the second buildirig

_ from, Moreau Avenue where the valve for the sprinkler

_ system is located. There were pipes going into the other.

. part of the building that. were broken and. the sprinkler

system was doihg no good. It had drained all the water

off on the fire fighting equipment and they did not have 5

‘any. water: :

-When I went in the building the ceiling of the first floor on

' of the second building from Moreau Street was still stand-_

: . \ .

ing up. Later that ceiling on the second building came

down partially ‘and bynted mime after thet.

: _/ Gross Examination. | ren :

. The building was closed down previous to the fire on

_ Friday at 4:30 and all the employees left. I was next in

the building on Saturday. sometime: I-myself, most ‘gen-

. erally work part of the day on Saturday... I don’t remem-

- ber whether I saw anyone else in there that day or. not,

‘The next time I was in the building was Sunday. about

"noon. It was my. job to go in there to see if everything

was all-right. .I was there about twenty or thirty. minutes 1

- ° an Sunday. _— et ee ee

’. the fire.

% They moved. the biggest per cent. of the sabato: in

December, 1954. They were sewing machines. They

moved from 100 to 140 machines. We carried the machines

' up the stairs. Did not cut hole i in the floor. I worked un- .;

der the ‘direction of Mr. Kolker, It took two days to imove

the machines.-‘.I had four boys: carry up each machine.

Supports had been put under the arene two or three |

years before that. :

On Sunday I walked through the building from the

upstairs to the downstairs to the boiler room. I do not

know whether I smelled the odor of natural gas or not

on that day.

The sprinkler and steam pipes were broken after the

2 fire. The pipes running through the east wall of the

_ Office were broken. None of the pipes going to the press-

ing: machines-were broken. Sprinkler pipes ‘in the office -

downstairs were broken. I never. was in the apartment.

3 | tide * see any ee pipes beck, after the Tike and 1

“not look for any...

- The biggest machines weighed ‘about 400. pounds and.

_the smallest ones 100 pounds, with an average of from 100

- “to 150 pounds. More smaller ones than large ones. About.

- 120 people worked on. the second floor. :

: e had a ‘good supply ‘of natural gas in the building as_

far\as I knew. Never any shortage, always good pressure: _

When I first — — the boiler, : we operated it

‘

Pas 35

‘with coal. About three: years ago we started using gas in

the boiler, about 1952. : The gas for the boiler came -in

from the alley on the\south. The amount of heat main-

Bayard R. Brick, on behalf of plaintiffs, testified:

eect _ Direct Examination. 8

- T live at St. Loyis, Missouri, I am a consulting chemicaf

_, engineer and I.own the Bayard R. Brick | any where.

I maintain a chemical laboratory, drafting room and ex- _

shop..I. haye a Bachelor’s Degree in chemical |

eering' and a Master of Science’ degree, \and I did

nsiderable graduate work in: chemistry . and, mathe-~

mati¢s and I was on the engineering faculty of Washington

University. I have been production manager and. pur-

chasing agent for a paint company, chemical engineer. for .

the United States: Cartridge Company, which was the .

largest facility in the worl@ for making small arms am- ©

munition. I handled.among other things the powder manu-\

facturing ballistics, explosive manufacturing and handling. “.

I was on the Hazard ,Control Board which controlled all ~~ a

hazardous materials including explosives, solvents, gases

_ and anything that was toxic or hazardous.-I was also on

. the Safety Appeal Board. After. the war, I have been act-- .

ing as a consulting engineer, specializing largely*in fires

-, and explosions; = are Pores

_.. 1 was employed by the plaintiffs’ attorneys to go to —

- Tipton shortly ‘after January. 31, 1955, to investigate: an.

explosion and fire. I arrived in. Tipton ‘the evening of |

February 3rd, it was snowing and slushy. [ observed:the _

damage that night and then made further investigation

on-February 4th and 5th, = i ati a st :

. ‘The corner building was sixty feet north:and south and

twenty feet east and west and it had been largely demol-

a z

eB e

z at,

THe

fist

.- At the Chevrolet: filling station ‘and garage across the

street to the west there was a door which was disjointed,

but not shattered. There was also an intact door there. °

Across the street to the north was another filling station |

and beside it was.a large wood door that appeared to bea _

front door. It was disrupted but not disjointed. Roe s

There had been. a trench dug through the pile of brick -

_ and debris over the sidewalk at a point about. thirty feet

south of the north wall of the building. It had been filled

up again and we had the trench opened. Straight out in

the street under the pavement was found an elbow and

the gas cock. and then the pipe. The trench was dug to .

the buildihg to the actual masonry wall of the building. —

‘ There was no gas pipe in it. yy FOCe ee

. ° We dug the treftch down more than three feet and ex-

_ amined the basement wall. The wall of the building itself

, was all crumbled into_the street. ‘We found thirteen inch:

masonry and rather large stones that were mortared into -

\, place. The mortaf,was in bad shape, soft and chalky. . The

nry. wall was quite porous. A three-fourths. inch hole -

found through it, also a two-inch galvanized pipe was .

to pierce that foundation and extended out into the

and sidewalk. Piercing the first floor right opposite

: the test wid fouieid s; ventilating reglater 18 by. 23 inches

_The corner building was sixty feet north and south, two.

stories, and Abutted on a one-story building 6° the south.

- _Inan explosion “fall-out” is that material that: is thrown —

been taken from the trench. It is Exhibit 25. and is one

_ and one-fourth-inch pipe. I examined the pipe and found -

_ a-hole in the elbow and. found that the edge of the. hole

was quite sharp, and comes to a. feather edge. -The long

_ portion of the pipe is quite badly torroded. The short

_ portion of the pipe has a ground level ark. about two-

thirds of the way up. The portion that had been under the: a

ground is corroded and a good part of the pipe has cor-— i

‘roded away. ‘It had been a galvanized pipe. The long

_ portion‘ of the pipe was the: horizontal section which led -

out. to the curb cock. There is a mark, or circle, coy :

..pipe where it went through the concrete. The top p

__- galvanized pipe, coated with zinc: Under the°galvat ine

it.is iron pipe.. It is not ible to tell whether the elbow

~ Or the long part of the pipe had: been galvanized. There

_ iS no zine coating left on it now.. The long portion of the

pipe is eighty-one and one-half inches long and the short por- Sat

-: tion is forty-two inches. The shut-off cock was about nine

"and one-half feet from the masonry wall. That is the shut-_ :

- off cock that was still in the ground, not the shut-off cock.

3 that was just below the meter.

When’ I was working’ at the Small arms plant, I had

-. considerable experience with corrosion. of metal equip-

ment, with anti-corrosion materials, wi

is a ree.

_ torreded both by soil corrosion and by the. fact tha

Sion and chemicals. Also, I have investigat

‘Ripes after chawcuacae piss :

| On the evening of February Sth I went to Fayette at the

Gas Company office and examined the, pipe qwhich ‘had.

_. tarried chemicals. fis aay presto tee the war limes

Se Sener em curraen af Icipe pipes: *

- and with the protection of buried ‘pipes from soil corro-| :

n ted

+ “Gabbert’s~filling “station: and :

.. identified as doors which/had been on the west side of this

_ In my opinion the hole in the pipe was caused by Soil

' corrosion. Examination of the pipe shows that the metal’

has slowly disappeared until it completely disappeared

over the hole and pitches up at the feathered edge. The

rest of the pipe shows tuberculation of corrosion products, .

| deep pitting. All this is characteristic of soil corro-

. There ate characteristic signs of soil corrosion over

‘, all portions of the pipe that was below the ground. °Based

- upon the fact that pipe-iri question was in the ground .

_at least as early as 1933 and had been in the gtound since

that time, that'the elbow with the hole in it was approxi-

mately twenty inches belaw thé surface of the earth, that

the. ground where the pip& emerged from the earth di-

rectly above the hole, the regs ee 3 not covered by any-

thing forea space of two feet the west wall of the

.. building, that no later than 1939\the previously existing

' walk was extended so that it was hen’ a solid concrete

" walk extending up to and flush with the building, and tak-

_ ing into consideration the’ facts: discovered. by my inspec-

tion of the pipe and my experience with butied gas pipes

_ and my training,.in my opinion this hole was in-existence

. for at, least ten years prior to the time .it was _up. °

Based on the facts that on January 31, 1955, at about 255.

' Or 2:30 jp the morning, there was a loud noise heard by a -

“person who was approximately a block east. of the building

"that I examined, and that sometime around three minutes *

later there was another loud rise heard by the same per- -

son, who was at that time ak it a hundred. feet northwest -

from the building.that I exa:: xed, and that he immedi-

. ately looked toward the Marti.. building and found that

_ there were flames visible in the north and northwest .

.. corner_of that_building; that this: building had -the dimen-»

sions that I determined by measurement after the fire, and

was locked up at the time these noises were heard: that

within an ‘hour after the noise was Heard there were found -

’ across .the street north and in the driveway of.a Skelly

station a door which-was identified:as the door which had

been in-the front of the Martin building, and that there were

_ two doors found westward in_the driveway. of, or near to,

nd Oates, which likewise were

_» Martin’ building; that the temperatures were cold, some- .

thing kelow freezing at that time; that the building had a -

crawl space of sixteen or eigh n inches under the first

floor and that there was a r twenty-two by eighteen

inches between that first floor and the crawl space and ad-

jacent to the wall opposite the place where the meter was

located outside; that the floor of the-building -was bulged

_ 6r was in the‘ condition in which I found it, rolled back; .

that. the south wall was pushed southward and had fallen i

on the one-stogy building to the rear; that within an hour

or two after the noise was heard and the fire was observed,

the plate glass in Gabbert’s Garage westward across the -

street was observed to be broken out aud to be lying in- |

side the garage; that there ‘were two electric motors in

the first floor of the building which were automatically

controlled by thermostats, and were connected with heaters

_in‘the ceiling of that first floor room, and that those ther-

mostats were set on weekends in the wintertime to main-

‘tain temperatures of 75-80 degrees;.that the doors observed _ :

across ‘the street were intact but one of them was dis-

jointed; that two posts of the Skelly filling station across -

_ the street north were observed within an hour’or two |

this noise and-fire to have cracks in them that had not ex-

isted the day before; that the roof which I saw a few days

after the fire was as intact immediately after the fire as

ifwas when I saw it; that at the time of the noise there was

.a gas ‘Meter just. outside the. West wall of the building as.

shown in Exhibit 15, and that\the. pipe, which has: been

designated Exhibit 25, led from the gas meter: down into .

the ground the distance I have indicated on the pipe by .

the rust and corrosion, and that -it extended from an “L”

at that point-some two or three feet below the groind >

horizontally. out toward the street, and that. the pipe was

-in the condition in which I observed it there at Fayette;

that the pipe was in-dirt at the point where the “L” lay

‘that has‘the hole in-it, and the foundatiorl masonry was

‘porous; that a pressure of from three to five pounds was:

maintained in thé pipe. at the time of the noises and the

fire; and based: upon my experience and training it is my

opinion that there was an —— of — gas fol-

- lowed by.a fire. ,

- Natural gas will move through soil. It will tend to move.

-upward,. being lighter than airs if the density of the soil

will _ permit. If the top of the soil is sealed, or. the escape

: of the gas through the top is hindered, then it would tend >

to travel ldterally; and we have found it traveling consider-

- able distances. , If the surface of the ground is frozen, the

gas will usually ‘travel sideways.

In my opinion ‘the hole in the pipe was not caused by

trauma. If caused by trauma, the edges of the hole would

be the full thickness of the pipe. The metal would be bent

back, and you.could bend it out again in its original shape

and the edges would meet. That is not possible in thig case

because the wrens is completely —

- Cross Giinttintion.

My only ‘dagtet is in chemical engineering. Different

~» metals will corrode at a different rate in the same soils,

_ and the same metal will corrode at different rates in differ-’

ent soils, but the same metal in the same kind of soil will

_ corrode roughly at the same rate. .On this particular pipe,

- there is a different degree of corrosion in the sense that

- at one point it is corroded through and at other points it

’ ‘is not corroded through. I did not check the soil outside

this building except to look at it. Where.a pipe has been

buried in the soil for sometime the best indication of the

corrosiveness of the soil is the experience of the Pipe that

has been-in fhat particular soil. Soil corrosion is a com-

plex. factor it is difficult to tell what experience will

be obtained, from examination of one particular soil. In

this particular case, in my pinion, it was irrelevant to de-

termine right at that time the acidity of the soil, the aeration -

of it, the resistivity, the moisture and all factors having to do

with corrosion. The corrosive condition of the pipe was a

bette indication of the corrosiveness of that particular.

soil than. any.chemical investigation of the soil I could

have made. I did not take a sample of the soil. .All the

_rest of this pipe is.in fair condition in the sense that there

are no holes in it and it would carry gas. If gas is gsvap-

ing into the adjacent soil from a hole of any size you will

find chemical evidence of said gas in the soil. I investi-

gated that as well as I could. .I believe the soil was loam.

' I have no records on the nature of the soil. I took none

of the soil back to the laboratory. (The Court refuses to

let the witness explain his answer.)' I made some tests

right at the place where the pipe had been. |

As compared with sandy soil, loam is not a porous type 7

of soil. It.is a sort of a clay soil. Such:soil will stick to

‘something that it is around.. With ‘qualifications, it will _—

happen around a pipe. The corrosive scale will many times —

remain on the pipe. It is possible that the shaking of the

pipe from the collapse- of some object on the pipe could .

cause scale to shake off. The pipe itself is an indication’ df

.the corrosive. condition of the soil. pee Scot

_ There is always a flash with an explosion. “All of the ~

gas may not be burned by the flash if there is gas that is

above the explosive Jimit.. It will burn if oxygen is

supplied. In the process of burning or exploding, gas will

char things, and when it burns back to the point where the -

gas enters, it will burn wooden objects around that point..

I found no charring of any of the floor on the first floor.

of the building or around where the meter had been. - All

I found was a little scorching of the wood. An explosion

will follow the line of least resistance.. It would go out

through a window or door. Whether ‘it. would also go out °

the walls would depend on the: force of the- explosion.

Whether it would take a partition out in another direction

from that of the door would depend on the extent: of* the

explosive mixture. It would be a terrific explosion, one

that can be heard by everyoné in a town of 1,500 at'2:00 in

the morning. It would be a rumbling and loud sound. Ss,

- I don’t méan to say that in my opinion the hole existed

as it is now for ten years. But it is my opinion that there

was a hole there for ten years, with the gas pressure in

their system there would be a leak there for ten years if

there was a hole for ten years, in my opinion. . :

- oIf there is a leak in the ground it will progressively dry

up the ground around the leak: It does not dry it out

precisely, but what happens is the stench material, the

mercaptan, is absorbed in the ground; it changes some-

what the appearance of the soil and has a tremendous odor

when itis dry. The odor will stay in soil for some time.

I'do not think that the absorption of the mercaptan makes

it any easier for the gas to go through the soil, or less easy,

If enough sities is absorbed it sian” have the effect

of preventing the soil from freezing. - |

Even though the hole wasn’t this big. for ten years, it

had to be this big for at least some time relatively soon

before I saw it. Sixteen thousand four hundred ‘cubic feet

of gas per hour would travel though such a hole if it were

in the open without any dirt around it. You can’t tell how

long the hole had been this size, . because it got progres-

sively larger. If the hole had been there ten'years, then it -

would be reasorfable to say that it was about half that big

_ after five years. A one-half inch hole would permit 4,100 |

- cubic feet of giis to escape per hour if the pipe were open

and there waggno- soil around it. A building sixty by

twenty has roughly: fifteen or sixteen thousand cubic feet.

. Even under ground it will flow at a substantial rate with

-four pounds of pressure. I think it would be reasonable to °

_ ‘say that the hole in substantially the size that it is:now had

been there at least one or two to six months:

'- Under the circumstances that existed in. this building,

this. gas would be getting in there’ every week end when

the building was closed and probably at.times.if*reached -

‘dangerous proportions, but didn’t happen to ignite before.

The earth having removed’ the mercaptan, it would be

‘ -odorless, or at the most have a stale odor. It is always

| characteristic of a hazardous condition that at one time or:

another, maybe after a considerable period of time, it gets~

_ ignited and blows up. I used“an explosive meter around.

where the pipe had been to determine whether there was

~ a residue of gas in the soil. Where the pipe had been the

. ground had already been disturbed so there was no actual .

’ chance of getting a reading. I didn’t expect a reading and

I didn’t get one. I examined the soil and smelled of it, }

but I couldn’t find the dirt that had been in the hele ate

besides it’ was saturated with water and you can’t make

such tests anyway in that case.- Even the ground inside

the foundation was exposed and was saturated with water

and slush and ice. The center of the building was gutted

by fire. The scorching: on the flooring was: not caused by

_ burning embers falling on. it. - Parts of the joists under-

neath the flooring were examined. In a gas explosion the:

‘43

fire will burn. back to the point where the gas is ‘entering .

' if there is enough air to allow such. Whether a carbon :

deposit is left around the openings depends upon the

sufficiency of the oxygen. I don’t believe thére would be

‘any carbon deposit around the openings, perhaps in the _

immediate vicinity. I didn’t find any carbon deposits of

this type near the hole and I didn’t expect it. There was .

no carbon deposit in the earth and you wouldn’t expect -

any there. ; Outside of the hole, the pipe was pitted in

general, but not excessively, according to ‘my deposition.

Gas will tend to diffuse equally ina space. In this court- —

-Toom it would take about a week for it to diffuse equally.

That is assuming that: the room is closed off and there is

no motion, no people in it.

a. :

Re-Direct Examination.

The reasons on which I base my opinion that this was a

gas explosion were: the floor was disrupted in the crawl —

_ Space which is characteristic .of a. gas explosion. Other

‘ «things were eliminated. No drums of solvents were found,

the type of manufacturing was investigated and there was

no possibility of dust, no possibility of gasoline vapor com-

ing from the filling station to the building, and the rear

wall was found on top of 'the roof of the one-story building

to the south and it was not fire damaged.’- The fire had

not reached the back of the building. The window casings

_ were intact. The Windows had béen blown out, the doors

were found across the street, one at the filling station and | —

two at the other station, one of them was intact. Because

of the slow diffusibility of gas when gas enters an aréa

there are always pockets of gas. The conibustibility of

gas and air is within a quite narrow range. If you have

less-than five percent gas by volume, there is no burning

or exploding. If there is more than fourteen per cent gas

in the air there is too much gas and not enough oxygen,

‘and it-again won’t explode. So only from a volume of five™

to fourteen per cenf.is gas explosive. The gas. forms

_ pockets,‘ some of which ‘have. too little gas: and some of

which have too much gas. The point of ignition has to —

be reached by a combustible mixture within that very

_ harrow range, then the pocket, will explode, that stirs up

the rest of it, and when the rest of it reaches the proper .

mixture, it explodes. In a gas explosion there&S invar- .

_ iably a succession of explosions, ‘usually at least two, the

first at-the point of ignition. The second explosion is

generally louder because it usually ‘involves a aimed vol- _

ume of combustible gas mixture.

Re-Cross ‘camination.

If the person was looking at the area where there was —

an explosion you could see the flash. If there was no fire, .

. or no flash, there was no explosion.. If he heard the ex-

plosion and then looked it. would be too late because the

flash would be gone. Methane gas diffuses rapidly, but

it diffuses to a uniform mixture slowly. The maximum,

disruption of the floor and-therefore the maximum ex-

. plosive force under the-crawl]‘space was in ‘the north third

_ of the floor, from the meter towards the front of the build-

ing. .The floor in the center of the building was eaten up

by fire and. I couldn’t determine anything’.from that. _

Sources for ignition were the unit heaters and the thermo- —

stats which were‘on the-twelve foot ceiling above the floor .

and not below-the floor. If the motor was ‘the source of

ignition, there would have tobe a combustible mixture at

that point. .;I don’t know of anything under the. floor“that

- . would ignite it. If it ignited from the motors it would have ©

ignited in the space between the floor and the ceiling.

‘The explosive force goes- away. from the point of the ex- |

‘plosion in all directions. From an explosion of the’ gas

around the heater the force would ._go out, down and up. |

That explosion itself would net.cause an upward™force *

under the floor, and therefore, there was another explo-

_ sion, or part of the same explosion, undernéath the floor. °.

- It could be part of the same flash. All the mixture which

was combustible, and you can’t determine how, much was

combustible, would-flash at the same time. If it flashed

_ through the registers.as it did sometime or another the

natural disruption. would be upward no matter what had .

occurred above. It may have taken three’ minutes- after the — .

explosion of the heater twelve feet above the floor until

. the explosion under. the floor. It depends upon the con- -

ditions of concentratiori: -That can never be reconstructed -

- exactly. In a natural series of. explosions the period of

‘time between ‘atin coul be up to three minutes. <.

‘Under the floor might be ibly dopoveel xg ive

limit and might not be i ignited by the original explosion

cand would go out back, outside, ‘out front. The gas up-_

Deore Rng pag or oma That is very char-

‘acteristic of - explosions.° } |

‘Re -Direct Examination. :

; i tant ar nie ak ans Ae ees ene 9

‘ by one blast and that could explain the possibility of there

being blasts as long. as two or three minutes astgic’ !

Dr. FRED Kurata, on behalf.of plaintiffs, testified:.

S _ - Direct Examination. . :

'° Tam Professor of Chemical ‘Enginee ring and Acting

. Chairman of the Department of Chemical Ei j Berliner at

the University ‘of Kansas. I have a Bachelor’s Degree in

chemistry from California Institute of. Technology, and

I.received from the University of Mi in the De- —

partment of Chemical and Metallurgical ineering my

Master's of Science.and Engineering Degrees and a Doctor

‘of Philosophy in Engineering. Later I was employed at

the University. of. Michigan as a research associate and

worked on classified projects during the war. I.was en-

gineer for the Protected Steel Products Company in

Pennsylvania, in charge of their. laboratory, the control

and research laboratory. The company made, or attempted

to make, products which were resistant to corrosion. I

was later employed as.a chemical engineer by the Atlas .

Powder Company: ‘I am a member of the American In-

Stitute of Chemical Engineers, American Institute of Min- —_ me

ing‘and Metallurgical Engineers, American Society of. =< .

Engineering Education, American Chemical Society, Amer- :

ican Association of University’ Professors, and American ~

‘or clay soil for approximately 20 years before it was/re-

moved, that the physical. characteristics and the nature of |

the ground remained.the same for approximately 20 years,

Fri

. ?

;

Bie

process hied boon going en Sor shout twanty yours, fram

the size of the hole, it must have been there for a good many

years. The hole was caused by corrosion. — ?

‘- - Based upon .the facts that on January 31, 1955, early

“ona Monday. morning at about ‘2:15 or 2:30, there were

‘two noises in the neighborhvod of the building, some two

or t minutes apart in time; that immediately after

the noise fire emanated from that building; -that

twas tworsory building with «celing over the fi

| crawl space, between the ground floor and. the dirt,

_ to: 1&inches; that there was a gas line leading up to

west Side of that building to the meter that is ‘shown in

. Exhibit 15, and that part of

and that the riser part led downward from the

through a sidewalk, a concrete sidewalk, and.

ground a distance of some.two to three feet, and that

“L” connection on. Exhibit 25 was located about |

rail

aappRe gga es

gpyas seuageiay ty re ap E AE

“ae

FL nH RE

Hniah M4 ATT RHE listed

“a hd tt syle LAG Tara

HE aTH ET RH HTECE HE i]

§ i a aya a% i ate § 8

TE Hei sia{sdadyelt:

Hythe THEE MITE, ia

Hi (ayy ape ae ae dail

. ine Lit sii faa a

igi

aris fitasty

HH atl

nee;

Glin

Bap eee:

alien

‘8 Bangs Hl Hi

tion rotares f action when I answered the hypothetical

ytie

Re-Direct Examination.

question. I made ample allowance for the electrol

the hole and the porous. wall, I-believe that

effect that you are referring to.

ox .

Ste ¥

. .

underground in all direc-

given direction the distance

covering on the top of the ground, if the surface of

ately a larger amount .of gas would

the ground is impermeable, then it would travel further.

ing, but the gas would travel

tions from.the hole. In any

the gas would travel

the

ee | pa

_. Davip C. Harpy, on behalf of plaintiffs, testified:

. T have lived in Tipton, Missouri, about thirty-five years

and remember when Tipton first got natural gas. I was.

‘. one of the first ones to get it into my home. . It must have -

- been 1931 or 1932, I would not be sure which. _

_ I think the service line was laid from the alley, instead —

of from the street. The Gas Company put it in. I.don’t _

think there was anything in writing in regard to my get- —

ting gas. It has been a long time ago—can’t remember 4

_ every little detail. The meter was in my yard, two feet

from the house. I did not pay for any part of that service .

line that was laid up to the meter. ~~ Seen

Cross Examination... 7 |

. I don’t. remember whether I had any writing in regard

tovit. My residence was about three or four blocks from

Moniteau Street. . eae es : se :

3 __.. Re-Direct Examination. -

. It was about one hundred feet from‘the alley to my

* house: ee hse eet Ps ea cs

S _Re-Cross Examination. a *

. “ I don’t remember paying a dollar for the service. I

may have done it and I may not. I don’t remember paying

anything. I don’t think I did. | Re a on

Mrs. Rose Harpy, on behalf of plaintiffs, testified:

ae _.- Diréct Examination: :

I am the wife of David Hardy and I have lived in Tip-

ton thirty-five years. I: remember when natural gas

first came to Tipton. It- was in 1931.° We got our gas

service almost immediately; we were one of the first con- |

_I remember when the trench was dug into our: back __

yard and the line was put in. The Gas Company put it

in. They did not charge anything for it. The trench.w

Wes

‘ dug up to the meter, which ‘was about two feet from the -

_house. It was about one hundred feet from the alley to |

the meter. I renneryper pr it was Mapped rainy ami

— = oe Sead See eee

“: / © ° . Cross eeniiniaiee ay ete °

Thie Gas Company put the gas in. We didn’t sign a

paper we just told them we wanted it and we got it. We —

did not pay anything.. I am sure ahout that. a

zie:

‘ Cuzmowr McGee, on behalf of plaintiffs, testified:

Direct Examination.

+ I live at Fayette, Missouri, and have been District ae =

- perintendent since 1932. That includes everything that

has to do with the maintenance, construction of .gas- lines, -

- meter reading, collecting. ‘for gas, etc. - Tipton first got

_ gas, I think, in 1931. The company that first brought

gas into Tipton was not the Gas Service Company, but I

-. also worked for the predecessor company. I was working

for the company that initially took gas-into Tipton: I —

was not District Superintendent of the area that included

Tipton in 1932. The Tipton area was included in my dis- |

. trict in June of 1940 and has been ever since. The Gas ©

Service Company bought out. the preceding owner of the

Tipton franchise i in 1947.

ah Exhibit 17 -is an accurate diagrain. ot the gas main along 3

Moreau Street to the Martin building, and the line run- *

ning from that main across the” street to within two feet

of the east sidewalk, and showing the:way that this line -

. “T's” off in two directions and then “L’s” to the east.

_ The meter to which the north branch of the line extended j

‘was just outside the wall of the Martin building, and the -

service line that extended down from that meter and

back under the sidewalk was the pipe that has. been marked

Exhibit 25. The service line extended directly down into

the ground the length of the riser shown in Exhibit 25.

The riser was about’ eight inches out from the Lema.

wall: /

‘ vee le

“51

We have made tests on the two-inch line across the street -

from time to time and also on-the one and one-fourth

inch line that runs north and south at the ‘‘T” on the east

side of Moreau, and also up to the curb, that part of the .

_,. one and one-fourth ‘inch line east of the “L’s.” I think

* the last test of that line up to curb was in February of ~

1954... : tees ASI

- We tested by putting a bar into the ground and-using a

combustible gas indicator. “That was*a routine test. We

would drive a’bar into the ground to the main, in this |

~ . case it would be about two feet deep, then we would take

- the bar out and lower. a metal tube and then an indicator.

would tell us. whether there was.a gas leak at that point.

We try to test for leaks when we have time, we don’t have

"any: definite period of testing: Time permitting, we try

to get over the entire system in |Tipton once every year |

and a half. . : le ee ge ed Mae eB

. .‘ When we make a test in the streets, alleys, alleyways,

- where there ig not vegetation,.we make bar holes every

ten feet; sometimes. farther than that. It*depends on

whether we get indication of gas. We make the bar holes - -

ten feet apart only if we get an indication of gas, other- .

wise the tests are farther apart.. It could be as much as”: |

fifty feet. The indicator is very sensitive. The fifty foot —

test would reveal a leak of any consequence. I doubt that

it would reveal a.pinhole leak. I-don’t know of any test |

that. we would make for pinhole leaks that the indicator -

_ -would not pick up. I am the raan who supervises the .

checking for leaks in Tipton. The periodic tests for leaks

are under my supervision.. _I doubt that we.could find

‘pinhole leaks by making our tests ten feet apart. I would |

Say. that tests .of fifty feet would pick up a leak the size

_ Of a match head. ‘ The gas was maiatained at four pounds

pressure. _ | al se es os

_ I arrived at. Tipton at 8:00. or 8:30:in the morning on

the day of the fire.. The Martin building was pretty well

_ destroyed. Some of our trucks’ were already theré. I -

think three of our men were already there, and they were

trying to clear the brick and debris off the meter so that

_ they could: turn the gas off. The meter was broken off

_. on the side next to the building, and they turned the -gas

off on the other side of the meter. The stopcock which

in now, After-we dug up the pipe, we did not show. it-to -

‘ a N | Soy, | c

. $2 oe Ye. bs ; Ss :

"they. used to.turn off the gas ‘is on Exhibit 25 just below

the meter. The meter was right. above that. That is the

stockcock we used any. .we wanted to shut off the gas

in order to service a meter\or replace it. We used ‘the

_ curbcock to shut off the gas if the customer did not pay _

its bil, rN Po aye aes

Mr. Smith wanted us to reston his-service, arid either.

_the day of the fire or the following day we made a test

use there was a

on his line to see if it was tight. B

fire, his line may have been ruptured ‘ ‘ithin.the building. —

_ The fact that there had heen a gas explosion and a faulty

pipe. was no indication that there might have been a leak

‘in that area. Mr.'Smith did not ask me td test the lines |

as F recall. Mr. Hecht was standing: there when we were |.

- making the tests and I asked him to look at ‘the test: in .

order to have a witness that there was no leak there. —-

_ We also dug up the. pipe that is marked Exhibit 25,I

~- believe the day following the fire. We said nothing to

Mr. Martin about digging it up, did not ask him anything -

about it or advise him that we were doing it. I did hot _

see Mr. Martin that particular day. We wanted to ascer ,

tain if there was a leak in the pipe and to preserve it. for \.

future reference. When-we dug up the pipe I saw the hole \\

in it immediately, It was in the-same condition that it-is |

- Mr. Martjn or‘et him examine ‘it, and we did not ask him )

. if he had any objections to our taking the pipe away. I:

don’t know whether it. is our practice to take away any.

pipes that we want to after an explosion without saying -

anything to.anybody. I. was ‘ordered to take the pipe by >.

. Mr. C. H. Ramibo, Assistant Superintendent of the Gas ~

_ Service Company. He suggested that I dig up the pipe,

look ‘at it and preserve it,-when I called him about the

matter. pees ett Se

v The meter: that was. beside the building and at the top.

~ of the riser shown in Exhibit 25 belonged to the Gas Service

Company. The Gas Service Company: had exclusive con-

trol over the meter and did their own testing and check- _

ing of the meter, and they would not permit anyone else.

- to test or check the meter. We try to test our meters every |

seven years to determine whether the meter is fast or slow.

~l¢

. The Commission requires us to test the méters every seven

years. “ We don’t make any regular test of the metersexcept

every seven years. There are two purposes in testing a

_ meter, one to avoid any gas leaking into the air so as to —

, _@reate danger, and another to avoid losing gas, losing’

_ Of my own personal: knowledge I have no fidea when

‘was installed. I do not know when any of the lines shown.

Moreau up the very: wall of the building were installed. __

We tested the service. lines going into Smith’s Shoe Shop.

~. - and VeatcheConstructibn Company by taking a pump and

_gauge and pumping the line up with fifteen pounds of air.

The’ lines tested were from the meter to our curb line. —

We turned off: the sto at the edge of the street and ©

. _ pumped air into. the lines\at the meter connection. =

' “Within ‘the next couple- of weeks we tested the four- —

“inch main on! the ‘west side of the street and found two

small leaks which we repaired. One of them was’ about.

_ At the scene there was a jet flame burning in the rub-

ble. "It. was coming from the customer’s service line where

'. _ the meter had been. broken on one side. We did not také

“any. soil samples or make any chemical analysis or make

\\ any tests. After the fire, it was a sleety, bad day, not so

- it\turned into snow. | Se :

‘When we dug up Exhibit 25 it was generally corroded.

Fsaw'the.corrosion hole. As District Superintendent since

"1932 I have laid a lot of gas pipes and-taken some of them

~ Up. I would say this was a corrosion hole. Corrosion is:- -

_ & Slow process. _

. along Moreau Street and adjacent to the factory building

in the last few years before the fire, and had laid 625 feet

of new four-inch\main extending about 515 feet. from the

“T” connecting: the Moréau, Street main with the alley

Main eastward along the alley. “We replaced some four-

the two-inch line across Moreau Street shown on Exhibit 17.

in Exhibit 17, running from the main on the west side.of -. .

_ fifty feet.from the alley. This main had been laid in 1931...

. told, butt it was raining and freezing. I don’t recall whether

Fa. We hed: hed srothils: with certoted. aul leaking pipe

ep ie Meh tae great \

, . he

a ie \ -

\ \ e

— \

~ inch’ rhains along: the. west side of ‘Moreau north of the.

ie,

{

alley, I' don’t: recall how many feet. -We also replaced

thirty-four feet/of the two-inch pipe that ran across Moreau

‘Street and.to within two feet of the west curb next to the

factory ‘building.’ Exhibit‘26 shows that the 625 feet of :

four-inch main was laid on July 18, 1951. My best recol- *

. lection is that we laid the thirty-four feet across Moreau .

*” * iin October of 1950... -.5-. 2° J. > ane enn

“We had some’ leaks in the four-inch main, but the line _

"was from six to nine feet deep... We had been pestered _

repeatedly ‘with having to go to Tipton’ and repair leaks

~ in’that four-inch main. It was cheaper to put in new, pipe. -

It wasn’t the number of leaks, it was the time we spent

,:| in locating them. “Because. of leaks it was more expensive

to keep repairing’ them-than to retire the old pipe. It was

rroded and had.some leaks in it.. The pipe was eaten

a had some holes in it. » That-was not true for the en-

"tite length-of pipe. 9: f

-With respect to. the two-inch line, the worst_part was

in the middle of the street. I recall though, there was‘other .

'-“eorrosion“the entireslength ot the part, that was replaced.

~~ #"Tigeneral it was the same condition’ as the pipe we took |

_ , .up after the fire, not as bad, but smafl holes: The same

' “general corrosion action had occurred. We had sorne leaks.

.in the ‘alley. That is where the pipe was buried so deep

‘it wasn’t reclaimed. _- coy

I don’t recall that- we made any other tests in the area -

- when we) found. the corroded and. leaking pipe that ‘we -

'. pther j

F-don’t know whether those !eaks indicated the likelihood.

) " is ge

in the area is bad, that

leaks. Exhibit 25 dad mt indicate to me the likelihood of

A: No we don’t test it. Suk because we find one

_ leak in.a particular spot, we each run all over town.

: testing for leaks.

. Q. No, that isn’t the question. The question | is

where you find’ a pipe that has been. in there sirice

1931, or shortly thereafter, at least’ been in there a

- long time, has become so generally corroded that you

can’t repair it and instead replace it, don’t you ‘con:

' sider that a warning to check for other like pipe in

the: neighborhood to see if there are any other leaks?

Mr. Jackson; If the Court please, object to that

because that is misquoting the testimony; it is argu-

mentative, improper cross _ examination. |

' The Court: Sustained.

(Offer later. was made to show that the answer would

~ have been in the affirmative:).

“Tt is my testimony that. when we find for’ one reason

~ or another that thirty-four "feet of service line is so gen- |

_ erally corroded that we have to replace it, we do not make.

bar hole tests.or any other tests on either side of that line |

_ or on our other lines to see if there are other leaks.

After we dug up Exhibit 25 we made some tests in Mo: |

‘reau Street for other leaks. We made the tests to be sure ~

that there weren’t any other leaks. It. wasn’t a: question

_ of whether thére was likely/to be or not. We made an

inspection for-leaks in ‘February, 1955, in the vicinity of the

fire after the fire because there had been a fire and ex-

- plosion. It is normal procedure. We did get a little be- ©

yond that area, but generally it was confined to that area. .

It was confined to that area because of the likelihood of

another leak there.

~ Q." (By Mr. James) This hole that you 1 saw when.

you dug up the pipe in question was the biggest hole ©

you ever saw in gas pipe, wasn’t it? _.

' Mr. Miller; : hing tn thin cae ne .

or disprove anything in /this

The Court: Sustained.

Mr. James: I would like to make an offer.

¥ 4

“The Court: I will give ‘you an sipartanity to eave

your record on that.

(Offer was later made’ to show answer would have been

| Q. (By Mr. James) Now, Mr. bik; np oes

pipe has had to be: replaced in Tipton except in that

one area right there adjacent to the factory building

since the system went in in 1931, to your a

isn’t that correct?"

\ Mr. Miller: Wait a minute. ‘We object ws that as -

not tending to prove or disprove any issue in this case. .,

The Court: Sustained. |

Mr. James: Could I rake: an. offer on that. later,

too? >

The: Court: Yes. . :

( Offer was later made to rine that answer would: have

been in the affirmative.) : ;

As far as I know we never at. any time made a test of

the approximately seven feet of pipe running from the

company meter. out.to the curb. The fact that the pipe

was under concrete was not the only reason. we did not

test it. I said in my deposition that the reason for not test-

_ ing it was that it was under concrete from ‘the curb to |

the building.. The two-inch pipe which ran across Moreau

.. Street was black steel pipe. It hasn’t been. determined

* whether Exhibit 25 was black or galvanized pipe. It is

approximately the same weight pipe. |

Cross Examination.

L-also said ‘in my deposition that the main reason that .

we didn’t test the service line under the sidewalk was

that it belonged to. the consumer, The two-inch line across

the Street was our property. We don’t test any customer’s

. dine beyond the curbcock and the customer’s meter. The

Gas Company installed and maintained and is re- |

sponsible for the mains and the main extensions over to —

the curb line from the street. (Objection that it was a -

conclusion and wasn’t ceaines | to this —— east

— )

We had no-réegrds ss sieatiin when the service line from

~ the curbcock to the, building was installed. I also said in

my deposition that tests were made along Moreau Street

“because of the likelihood of the existence of another leak

‘because of the fire and explosion, and that the reason ‘we

were checking was because there had been an explosion |

plosion. That is normal safety precaution. (Objection

as a conclusion overruled.) In October, 1950, we replaced

- the thirty-four feet of pipe because of the leaks in it. If

it had been corroded, but without leaks we would not

. have replaced it. We have a lot of pipe that is corroded,

‘but if it is not leaking we don’t dig it up. The moreHan

500 feet of four-inch pipe which we replaced in the alley

isn’t shown on Exhibit 7, but it runs east of Moreau. One

of the principal reasons we abandoned that line was be-

cause it was so deep that we had to spend so: much time

digging. By laying it shallower, we could maintain | it

better. !

I have been with the defendant and its ianiitbicinis com-

_ panies since 1932, but I have been concerned with Tipton

only since July, 1940. Since then we have never installed

any service lines for a customer from -the curb line to the

-customer’s property at our expense. It is instaJled at the

\ property owner’s expense, usually by a plumber. I have.

_ tion 6f so-called free-service line; and I think that they

are still in the possession of the company: After we in-

Stall ‘free-service lines we. never maintain them after that.

I do not know of any service lines beyond the curbcock

in that area that has ever had to be replaced or, maintained.

I have never had that experience. Although I was not

» Manager ‘in 1931, I did go te Tipton.and do some work —

for the company that first started the business-there, I

solicited sore of the free installation arrangements with —

new customers in Tipton. I did not have oceasion to solicit

a free customer service with anyone connected wit the

building in question. The pipe which we took out f low~

ing the fire has been available to representatives in this

action at any time. We had no reason to take it out except

to Preserve ivi in the event it might be _— - a lawsuit.

to see if any other. pipes had been disrupted by the ex- - |

seen a printed form of agreement regarding the installa- — |

‘ Re-Direct Examination.

. | ‘The digging up of the pipe vith this hole in it of that

size had something to do with our testing other pipes in

the neighborhood. When a gas company first moves into

a town they want to promote as many customers as they

can. .I don’t recall that a-gas company ever built the

- service line clear to the building. The customer would have

to build it from that foot up to the meter. I don’t know °

anything about Mr. Hardy’s installation, and I don’t know.

anything about the installation of this. pipe for the tele- .

phone office. In those instances the customers would pay

one dollar for the pipe from the curb to the one foot from

the building, or if in an alley, from the property line to °

within one foot of the ea :

, Naomi Woop, on behalf of plaintiffs, testified:

Direct Examination.

_. I have lived in Tipton since 1948. I have lived in the

apartment in the .Martin Building from July,. 1952, until

the time of the fire. My parents live about 12 miles from

Tipton and I was at their home at the time of the. fire and

explosion. I believe I was last. in. the apartment on the

24th 6f January. Gas appliances in my. apartment were .

' “a cook stove, a gas heat stove, and an automatic gas water

_ heater. The lines that served these appliances came from

the west side of the building. There were pilot lights on

all these appliances, and I had been using them since the

. time I moved into the apartment. When I left the apart-'

_ ment before the fire I shut off the gas, but the pilot lights

> were left burning. This is what I had done every time —

_. that I had left the apartment for a week end since 1952,

- and I had had no difficulty of any kind. 2 Dae rer ene

| Exhibit 27 is 4 picture of building and the apart-

ment. The/picture was takén after I installed the air con-

ditioner. The picture was taken in 1954. . picture

shows the true condition of the meter r and the’ sidewalk ° -

| : ee ieee ie

on the west side of the building: Exhibit 28 is an enlarge-

ment of Exhibit 27.. (Both are admitted in evidence.) I-

, had a television set in the apartment. It was in the second

room from the north and it was installed in January, 1955,

a matter of days before the fire. I- rented the apartment

from Mr.. Martin, and I also did some work for. him, and

I had been working in Jefferson City too. I was notin.

' the apartment at any time after I left there on January

24th. I had the key to the apartment. ge aS

$) .

Certain parts of plaintiffs’ request for admissions, to-

_ gether with defendant’s answers théreto were read in evi-

dence, in which defendant admitted that the building in ;

question was damaged by fire on January 31, 1955, but

stated. it did not have sufficient information to admit or

deny that there was an explosion, or, if there was an ex-

plosion, that it was a gas explosion or a natural gas ex-

plosion, or that it escaped from the hole in Exhibit'25..—-

Plaintiffs then read certain interrogatories to defendant,

that it removed the pipe in question following the casualty;

_ that the pipe was thirty-seven and ‘one-half feet south of

Moniteau, and extended seven feet three inches east to a

. . point about eight inches west of Martin’s building, and the

_Temoved pipe was ten feet four inches long; that there

Was a hole in the elbow at the time of removal, which hole

had been underground and was oval-shaped and. about

one and three-fourths inch by one inch in area; that de-

_ fendant was unable to state what caused the hole; that the

pipe was removed on February 2, 1955, at about 10:30 -

—&, m.; that C. L. McGee had custody of the pipe after its

_Temoval; that on October 27, 1950, thirty-four two- —

_. the-alley; and on July 11, 1951, one hundred ten feet of

' fowr-inch main, beginning at the alley south of Moreau

Street ‘and extending north, wre replaced; that the de-

fendant never, prior to January 31, 1955, inspected or

and the answers thereto, in which. the defendant. stated « os

_ tested for holes or leaks in that portion of the pipe which -

' | ‘was removed following the casualty; that. the defendant

- did not at any time before the casualty notify Mr. Martin,

or any of the occupants of the Martin Building, that the

defendant had replaced the pipes‘and maihs referred to.

C. H. Rampo, Assistant Superintendent of the defend-

-_ ant’s whole system, by deposition, testified: ~

Our policy is that, when: we find leaks in our mains

in a given area, we usually make bar hole checks in that

> area. We would not necessarily make checks of. the

service lines cleat up to the ‘meter froin the curbcock.

We would not necessarily test all the way up to the

"+ meter if it is under pavement. A bar hole test is prob-

ably the test we would make. When we made a test .

_ or. when. we make a test under those circumstantes of .the .

service line up to the meter, I don’t think it would make

any difference to us who had purchased the pipe when

at was originally put in.. When we would test.a service

“Tine that goes to the customer’s meter to be sure that it

was not also affected, I think we-would get his _per-'

mission to do so... SS

If we tested the service line either by the use of bars

_, or by the use of a pressure pump: I don’t see’ why’ it

_ would be necessary to get the permission 6f the customer.

I told Mr: McGee after the fire, “if. there is any ‘that

has—from which there has been any evidence ‘of seat

age, Keep it.”

Exhibit 29, being a plat of the city of Tipton and an 3

ing Lots 16, 17 and 18 on which the buildings in ques-

tion were located, is admitted in evidence and shown to

the jury. The plat shows the streets of Moniteau. and ;

- Moreau are both sixty feet wide.. roe Hs

Plaintiff reads from Exhibit 1, being Rules and Regu:

lations governing the distribution of gas in Tipton, Mis- |

souri,-issued: by defendant’s predecessor and approved by .

__the Missouri Public Service Commission, being effective Qn

November 1, 1931, and being in force at the time of the in-

» _stallation of. the pipes in question. The following is read

_to the jury from Section 2, Subsection 2.of said Rules,

and Regulations:

= “The service line from, propetty line to. meter .lo-

te cation shall be part of the property and shall. be in-

stalled and. mairitained at the property owner’s ex-

_ pense, but its use as a gas service line will be subject

_ to the inspection and the approval of the _company. 3

: Exhibit 30, bein, being Ordinance 221 of the city of Tipton

. dated: May 3, 1948, is received in evidence, and Section

l is read to the jury as follows: .

“Be it ordained: by the governing body of the City

of Tipton, Misso .

That there is hereby: granted to:'The Gas Service

Company, a corporation operating a gas distribution

system in the City of Tipton, Missouri, herein called

the Grantee, its successors, and assigns, the rights,

privilege and franchise, for a period of twenty years

a the effective date hereof, to construct, main-

in the present and future. streets,

;

necessary vg desirable all for the purpose of ‘meat

ing natural gas for all purposes to the inhabitants

of said City and consumers in the vicinity thereof.”

Exhibit 31,- Ordinance 108, dated July 21; 1930 (later i

‘repealed by Ordinance 221 referred to above) which gave |

_ the original: franchise to a predecessor company the |

defendant, was admitted and Section 4 thereof w read :

to the jury, as follows: Sa race

“Grantee shall ‘furnish free’ of charge and install

for his customers reliable meters or other instru-

merits for the measurement of gas sold 'and~shall

keep the same in repair without cost to the cus-

. > tomer; all meters or other devices used by the gran-.

tee shall at all reasonable times be subject to inspec. /

tion by the City and the City shall have the right “

to test said. meters and devices at reasonable -times.

Grantee shall also furnish and install at his own ex- '

_ pense proper and suitable and adequate service for

_ each customer from mains to the -curb line, if such

mains ate located in the street, and from mains to

, _ ‘the property line, if same ‘be located. in alleys, and /

all such mains and lateral@shall be adequate in size

~ and construction. “shaper th ; v

Plaintiff then read Section.1 of Exhibit 31, 9 inllowwk:

“That in ‘consideration of ‘the benefits to be de- *

rived from the installation and operation of a gas .

plant and distributing em in the City of Tip-

‘ton in the State-of Missous, there 4 is hereby granted

‘to Thos. F. Bowdern, his. successors and assigns, the -

/. right, permission. and authority to construct and

\.: Operate a gas plant and.to lay, install, maintain,and

_* Operate a gas transmission and distribution system

within the limits of said City as the same now exists |

‘or may be hereafter extended, for a period of twenty -

; eee ant oe ee er = Cis Ore :

_ mance and the ratification thereof by the: voters |

the City, as required by Statute, and for this

there is hereby further granted to said grantee

right, permission and authority during said

= lay, install, maintain and operate, in, upon, over;

across and along all the streets, avenues, alleys,

bridges and public places of said City, all mains, .

‘ services, pipes, conduits. and appliances necessary or

“convenient for . transmitting, distributing and sup-

- plying gas for heat, power and other purposes. for

‘which gas may be used during the term hereof, a

for the purpose .of transmitting such gas into, —

__ through or beyond the immediate limits of said city. .

It was agreed that the riser on- the service line ~~

“. tached to the meter was buried in the gtound twenty-

nine inches below the surface of the sidewaik-and-twenty a

dnches below the surface of the ground. It was. also

agreed that the pipe extended from that point, which

was eight inches from the foundation wall, straight west

under the sidewalk and then connected with a curbcock

belonging to the Gas Service Company, said curbcock

| being right at the curb on the west side of the sidewalk. —

That the curb line was 7.6 feet from the building, and —

‘from the curbcock the ‘line extended another..two feet

«west and then joined an “L”. connection and. extended

_ from that. point south a distance of approximately 11.7

_ /feet, where the dne and: one-fourth-inch pipe joined with

/a“T? to the’ two-inch *line extending under. Moreau

c Street thirty-four feet to: the four-inch main line on the .

west side of Moreau Street, and. that the defendant com-

pany owned and had exclusive ‘control -of the curbcock.

Then the following p were had in court

chambers, out of the presen 1 of the jury:

Mr. -It appears from previous: statements —

- made to the Court in chambers that the plaintiffs in

_ each ‘case have two different theories in the case, and =

I would like to move now on behalf of the defendant 7 “

a 4 ESE rn 5% ry

a to the: meter and therefore had: the duty

under the law to maintain = Lest in a namanehly,

_ safe. condition. :

Re Under tlie law of the:Sthte of BiissSul4, i¢ that sabe

ice pipe was owned by the plaintiff Martin, then the |

defendant would ‘have no duty to maintain the pipe.

in a reasonably safe condition, that that duty would

be. upon the defendant—the plaintiff, Martin,

the ownership is in the plaintiff, Mr. Martin, the ‘de-

_ fendant company would only. be liable where. it

directly engaged. in some test related. to the

“ tenance of the condition of the service pipe in q

and‘ had not properly executed that test; or, two,

' where it had notice of a defect in the service pipe.and

had not taken the necessary steps to prevent the

danger from remaining operative from ‘such defect. —

| I think the plaintiff ought to elect on which Sheory

- they are going. to go. .

'' Mr. James: It is the plaintiffs position, if the Court |

please, that the theories are not-gonflicting, that if

Martin, as stated .in paragraph 3 of the complaint--

if defendant. owned or had under its, control the gas ~

line leading to the building and failed to maintain it _

in a safe condition under the circumstances, the de- ‘

. fendant was negligent, arid the other theory, which

we do not feel conflicts in ‘any: way, is that the de-

fendant had knowledge or notice of a defective gas

line, a leaking and defective gas line, or knowledge

of facts and cigcumstances’ that would put a reason-

_._ ably prudent person, ‘situated as was the defendant

company, on inquiry; that a reasonable inquiry would -

have. revealed the defective leaking pipe, . and that.

with that notice the. defendant failed either to repair or -

- to warn the consumer, or to shut off the gas until the

pipe was. repaired, it was thereby negligent and that

that negligenté was the cause of the damage, and that

that theory is supported by the evidence in the case

‘and is not inconsistent with the theory of ownership

oh IE SS NSE Sr = ee any ee

In other words, the duty in the one theory ‘arises

out of the ownership or —— of the a: ‘The duty

in the second eas arises out. of ~— notice or hint

_ edge of facts putting them on inquiry, and I think we |

are entitled to either both of ee sebenlenions | =p:

_arately or together as not being in co ict.

The Court: The Court is of the opini

~ necessary for the Court to determine as. question of

law the ownership of - x be pipe in ques ion, of the

Segpice ‘pipe in question. * Xx

ae (Colloquy off the Tecord.) Ga

‘The Court: It is the Court’s ruling ‘that, in light ot

the evidence introduced by the plaintiffs in this case,

there is no. evidence. to. the effect that the defendant :

was the owner of the service pipe extending from —

the stopcick to: the place where the meter was set.

Mr. Miller: The closest_ Point ‘to the meter’ was

eight inches—

' The Court: To where the meter was ; set adjacent to |

the Martin property; that under the rules and regu-.

lations read into evidence by plaintiff there. were in.

force and effect at. the time the pipe in question. was

laid, it is revealed that the ownership of -the. service _

- pipe in question was in the owner of the premises in

question -béing serviced by the gas of the predecessor

‘company of the defendant in this case, with the right

of inspection. én the part of the predecessor company

alk adjacent to the property of the. plaintiff, <i

and there being no. evidence of direct >. :

ion

that, pipe in. the instant defendant, the: presump

: | Se defendant; that said pipe extended under the side- | . :

is that the pipe was. upon property of which, under |

the law ofthe State of Missouri the abutting property

owner hds the fee title subject to public franchises or.

‘Absent direct p ‘of ownership of the pip by -

- thn tadand eles the Court declares the law to .

be that under the evidence as esta

ship of the service pipe. in ‘question.

occurrence referred to in the’e

ep eee | es

the owner-

was i

easements thereover . for the maintenance of streetg

and other facilities, as shown by the evidence. .

Sede

e ‘ : . 2 ¢ .

ad . 5 ‘

‘ , ; a, m ‘« : ,

-- ¥ a _ »

tod . . : *

. = er a- ‘ . ; "8 e

sl ‘2

- tuceien “Alfred "Martin, and. you may aaa ac! ?

7 Me ‘cordingly with that being the ruling of the Court.

' - Now, ‘what else do. you have?

_Mr.. _James:’ Im the event it is necessary in (om

. ‘to. preserve my ° rd Proper: | we of course object :

\v ‘> ‘and except. :

~* The Court: It is, not dienes, You hiee: an ex- .

on ception to all rulings made: by the Court. It wi

_» understood that you do specifically except to this ruling. _

"Mr. Millers. The Court is not. requining an election

“at this time? | I

\The Court: It is not. necessary for an aia ‘in the

light of the ruling that the Court has made.

ie Mr. Miller: Very well. od

ho Mr. Jami s: If I understand the Court’s 5 riling the ;

“eliminated, the. first théofy. | A

* The Court: The rship of the pipe, yes, placing

SS the —" in the — Martin. Biel

| DEFENDANT'S EVIDENCE.

‘ _Vawstox H. Ryan, on. behalf of defendant, testified:

* Direct Examination.

— - director of the Division of Natural ‘Splenes: and

Ma tics and professor of chemistry at Rockhurst Col- »

lege in ‘Kansas City, Missouri. I have an‘A. B. degree, a .

__ Master’s degree, and a Doctor of Philosophy in chemistry.

.. from Kansas: City Univesity. I have been at Rockhurst ~~

_ for thirty years as professor of chemistry. One of the _

. occupy all parts of any shened container. . te,

It is an impossibility for gas to et ina container. - If

on gas were under an eighteen inch floor and there was a

\ — near where the gas entered the. -underfloor, ‘space,

\ it ‘would diffuse in all directions, but it would ditfuse

, — those —. If a dex has been buried. ner A

. a

‘oa

GY ‘

. . a ’ - .

vt “- a \ } : R me - q

fichen in the ground and. it ys a one inch. hole in it for -

about six months and the gas in it ‘is four pounds pressure, —

I would say that about the first fifty eubic feet of the

- . gas that.came through the soil would have the mercaptan,

‘which gives it its odor, absorbed by the soil, then the —

_ soil would be saturated with the mercaptan and after that

the. gas would come out’ just like it nae been _put in the

pipe.

Gas coming in contact with the soil has. a tendency ia

dehydrate the soil and make it more porous, thus allowing _ .

better entrance-of the gas. The ground becomes sort’ of

8 : pulverized, and: does not pack. ~The gas would pass more

” rapidlY through: that-soil then. Under those circumstances, -

ld go through the soil,’ through the founda- -

‘the gas

_ tion and SHould eventually form an equilibrium mixture

_ of air and gas underneath the floor and in the building. <

The sidewalk aBove would offer an im ent to the gas

- and.would channel the gas and cause it ‘to follow the line -

- of least resistance. Assuming the gas would’ go through .

_-the soil and foundation and rise in the building, a noticeable

: - odor of gas would be present in the — in six months’

a time... |

a During that time there should be: substantial accumu- , _—

lation of gas in the building. ‘There should have been |

a substantial accumulation long’ before the end .of the

six months’ period with that size hole. During that time.

there could be formed an explosive mixture in the building. .

- (Objection that the doctor did. not have sufficient facts)’

_ including’ whether or not ,the building was open or closed,

etc.) The concentration in the building would change ‘in

_ proportion to the amount of air and‘ the: amount of gas

. Coming in underneath... It would be a sort of a continuous |

- proposition. (1) Depending on the gas coming in and also

depending on how much you. dilute*the gas with air. As-

suming. the container remained the same and the ainount

of ‘air remained the. same, the amount of gas would in--

crease in concentration, would reach an explosive mixture

and then eventuafly reach a non-explosive mixture when

_ it went above the explosive range. The lower limit of the

explosive range is five per cent. gas and ninety-five per

3 cent air and the upper limit is ten per cent .gas and ninety

. x |

: ‘

€

* per cent air. If there is gas within. a container which is

-within the explosive range and-also gas which is above

the: explosive range, particularly at the point of*ingress _

and if, that which is within the explosive range explodes, .

that ‘will ignite the gas which is abové the explosive range

_and it will burn. .The explosive mixture would undergo

the chemical ‘reaction producing carbondioxide and _water

and the other would burn harmlessly with a yellow flame.’

That is the pure gas coming in through the source.. ‘It would

all Happen instantaneously. : :

_. It could happen that you ‘would have an explosive mix-:

‘ture that would explode and then the. diffusing of the other -

mixture and then a second explosion:. But it would be.

, ina very fast sequence that the eye could-not distinguish. Pe,

- There could be no such interva! as three minutes. . From

__the ignition. to the time of the burning of the: other gas.

_ would be a mere fraction of a second. The explosion is.

et accompanied by light and heat. To anyone obsexving.a gas .

explosion he would see a flash. There will be the noise.

of thé explosion and. the explosion will. blow out all the air

and:create a vacuum and about a’second: later the air will

rush back in’ and there. will be another noise.. ans

The. force of an explosion starts out uniformly in all

“directions. If. itSmeets something: sufficient . to repel me

--. then it will have to change itsdirection and follow the

— line of least resistat we. If there is arf explosion in a twenty

“by thirty. room whith’ is Closed off -in a sense that there _

"are solid partitions, and if the ignition is at a point thirteen

feet above the r and there are registers in the floor be-

tween the-room and the crawl space, it would hit. all

_ walls uniformly and t should be blown out, all of them. |

. The .force ‘should: pust ithe boards of the floor downward m

and not upward. If there was gas above the explosive limit

‘under the floor, it would’ burn: If gas -was coming to:

this hole. and then under the floor, the explosion ‘should |

cause the gas to burn back to the source of.the entering .

_and would sear the wood flooring, but not really char ‘it. -

‘When. you burn gas in its. pure state, it doesn’t have much .

- heat, but there should. be lots of carbon in the area. ‘The

pipe removed immediately afterwards; should have had |

carbon deposits around the isc ‘of Ingress.. be ee

car ee - 69

If the explosion occurred in the front room, that is the

north room, whether the walls or the windows would go

- outsfirst would depend’ on which were. stronger. Usually _

the windows are weaker. If the front door and the win-.

- dows went .out that would relieve the pressure on the

partition behind the room in which it exploded, and in: my.

opinion the explosive. force ‘would not continue until it

went through the. partition, back through doors, and -

then blow out a door at the southwest corner of the build:

' ing some sixty feet back, if the explosion occurred in the’

-. front of the building on the first floor. When it blew

down the first wall, sixty to seventy per_cent of the’ im-

. pact would be lost. It would be hard to conceive that the

force of the explosion would go through thosé doors, turn”.

_ a@xeorner, go up a stairway and blow out the south wall of.

the building on the second floor. If the: explosion’ was. of.

sufficient magnitude I think that the walls in the: room

- where it exploded _ would have beén blown: across ihe | -

street in preference to going through three walls in the.

back, and'the wall in the northwest corner-would have been -

completely annihilated. With that kind of an.explosion

the debris can be carried a couple of blocks.’ Resi

If the: explosion was in the front part of the building ite

and it was uniform in all dir€ttions, the foundation should °

have been disturbed clear down to the bottom and front of

the building and the first two or three. courses of brick

above the foundation should not be still in place. If there -

was an explosion in a crawl space I would expect the point

- between the foundation and the :brick would: be pushed

out at least, depending upon the intensity of the explosion.

- [have known of buildings collapsing and rupturing a gas

pipe, and the fime that it would take for gas. from such —

rupture to accumulate in explosive quantities in the. build-

ing would depend on. the size of the rupture. 5 ee

- Assuming the facts in evidence, in my opinion. the first

noise heard was not a gas explosion, Gas is -a sharper

noise,. a blasting effect, and if there had.been an explosion *

“there would have been flames. In my opinion, the second

, noise was a gas explosion because of the nature of the

sound, the ‘fact that gas was burning and by the type of

a _— that. was done. The fact that after ema Second

RX,

noise” “pas, or a. ‘gas flame was shonieait on “the seccind

floor at the back near the bathroom is evidence: that gas

~ was getting into that vicinity, and it is typical of the after

- effects of going back to the source. of ‘engranee into _ ai

| container.

From the’ ‘nature of f the onan nae the hte of :

blow out, in my opinion, gas was released.on the second

floor, towards the southeast ‘portion and was-there ignited

- by some.means. The pilot light at that area could furnish’

_ the ignition. The’ fact that the south. wall was blown out

‘of the second floor is significant, since the force of an ex-/ —

" Plosion is greatest near the point of the explosion. It is’

also: significant that the door at the bottom of the stairway

down from that: bathroom was found sixty feet across the

street. The most important point is the south wall with .

‘its windows blown out. The wall and windows were_car- Bee

ried some distance. The fact that the windows were

intact is consistent with a gas ‘explosion.

” Cees Examination.

In my : inion. the west wall. collapsed, as pare

from being blown out by an explosion. If the west wall of

the building collapsed, it would. be. less likely that :ther> . oe .

would be an explosion at a later time, although it-would =~

be possible. It would depend on the amount of gas. coming

in and the amount: of gas going out, but no question about

_it, the gas would be more diluted if the wall was down.

‘I would say that the explosion occurred: before the west _ }

, wall collapsed. In examining the picture it indicates to me

‘that the west wall just collapsed and was not destroyed

by .an explosion: I am positive. that the west- wall was.

present when the explosion took place. I think the ex-

plosion loosened’the west wall. to the extent that it col-

lapsed. .I don’t think it was due to the: original explosive

force, possibly secondary, but not primary.. In my opinion

the explosion occurred while ‘the west. wall was ‘intact,

. the explosive force was driven south going out tge south

, wall, and if the west wall collapsed it. was secondary. to

the blowing out of the south wall.. In my. opinion the west _

wall did not collapse first, thereby. breaking gas lines and |

resulting - in a later concentration of gas and explosion.

. @. ! a :

, Pe

You cannot shania gas in the open pres and get ;

a proper mixture for.an explosion. It has to be confined

in some manner :so it.becomes just diluted with air. The

° container does not have to be air tight, and no ‘buildings _

are. completely air tight, and certainly some building that ‘ oo

has been in existence for some decades. If. we opened

container of gas in one corner of this room under the con-

ditions that we have here, ‘you could smell it at the other

end probably in about 15 minutes. You would never have |

) the gas_uniform in the entire room except in a room which -—

~ was air tight and had no o openings because with. air_coming___-_

"in it is going to be enriched with air, and the gas at the

source is going to be richer even than it is here. It would

take some: time fog, gas to come’.in a building and diffuse

itself sufficiently 86 that it would reach an explosive mix- .

‘ture, say near the ceiling of the building where there are’

_ electric motors. Under -the facts. assumed, if there was a ’

break k in the pipe caused by a wall or-something collapsing _—

'..on the meter and thereby causing a break in the pipe or. _

. breaking scales off of the hole.or in any event opening the

pipe to the extent of one inch in diameter, I could not ex- . :

press.an opinion as to how long it would take to get an ex- | Pt

plodable mixture in the room, becausé there are too many

variables. I don’t think I could geé an explodable mixture

moving into that building from that hole in three minutes.

I think it would be’ impossible, with those variables. If

you have gas coming into a room on the first floor and |

there are registers between the first and second floor, or

“an opening to permit gas to pass through, and if the gas

om the first floor gets above the explodable. limit, and you.

are releasing as much gas as is passing through the open-

ing to the second floor, the concentration in the first and.

.. second-floor rooms would never become the same,’ because

the gas ig the-first floor is always being enriched. There

would always be a greater concentration in the room be-—

low than in the second fléor room. All the gas"that goes

to the room above would take some air with it, and there-.

fore, the concentration in the room below would get.richer ~

~- and richer assuming the gas is coming in at a constant —

‘rate. The gas in the room. below: could be above the ex-°

= range while at nonedy same time in the second story 3

72.

- in the room above exploded; the gas in ‘the . below

rooiti ‘it could be below the explosive range. i fe gas

-woilld not explode, but it would burn. The ges in the _

_ room below. could not later reach the explodable range, —

because it would burn almost instantaneously. ladecact the .

, oer above because of the opening... |

: The gas passing through: soil would dehydrate the soil.

: It will act as an avenue in the sense that the soil is more _

porous and the gas can-more readily escape. I would not -

‘say that it is like a pipe, because this can work in alf .

aaa ae

directions. I have seen instances where ‘gases pass.

through soil and it makes the soil dusty, pulverized. I do.

not have an opinion as to whether such soil would sealup .

a hole in a pipe. containing gas at four pounds pressure.

As long as-there is just one container, it is, ,dmposgiblé to -

have two explosions. As long as there is an entrance from .

__one space to another I would. like to refer. to that as just __-

one container, and there still could not be two ‘explosions. -

_ Although the force of an: explosion: moves equally in all

directions, if a weaker part of the structure. goes out,

of the structure, and it is possible to have an explosion

walls at all; | .

One of my considérations, my second consideration, in.

arriving at the opinion that there was an explosion on the

second floor at the rear was the fact that a door from

the firgt floor. at the rear end of ‘the building leading up

to. the apartment was found across the ‘street. If a door

on the north part of the ‘building on the first floor. was ‘<

‘blown across ‘the street, it would be indicative of an ex-

plosion on the first floor in the front. It would have the

. same value as I gave to the other door. It would be prac-

tically impossible for an explosion irpthe’ back to ‘blow a

front door off unless there was some entrance from the .

- second ‘floor to carry. the blast down to the first floor. -

If the only possible way for the explosive force to get

from the second floor was down the stairs and through

walls, then it would be impossible for such an explosion — <

to blow off the front door at the north of the building, but

I was never told whether there was ny opening between

{

) i the first and second floors at: the front of the second floor <<

.* . apartment. . Assuming that the explosion had only the .

| direction to. foliow mentioned by Mr. Jackson, then if it .

- was impossible éor the- explosive force to go from.

. .* lower front of the building to the second floor back

the building, it would also be impossible for the forge to

go from the second floor back to the lower front of the

building. Mr. Jackson didn’t bring in the condition. of the

. front part of the building. If we assumed the facts men- ,

tioned in Mr. Jackson’s question; that-is, could a force go :

pag these walls from the front to’ ‘the back, turn a .

a er, go up and knock out the back wall; I say it could -

_ not happen. Also, if.an explosive force occurred in’ the up-

_ Stairs rear of. the apartment, it also: could not go in‘the |

_ direction mentidned by Mr. Jackson and blow tlie front: 2

' door on: te first floor across the street._Ifthe-explosion .

___-_-oeeurred-on-the second “floor: rear, and the front doors

eae blown across the street, in my opinion, it was done

: oe else besides the —_ in the apartment |

Oh have described. 3

I think it would be ‘possible to, have an explosion ‘in the »

_ front part of that building on the first floor and for that _

_explosion ‘to roll the floor back over the crawl space.° Such

a thing could happen. If there was a gas explosion, there

_. would be an immediate flash, which would last a second -

or two. It is possible that ees a-person is walking in the

opposite direction fromthe po -of an explosion, and that —

when he looked. around, Age psec not see oe flash.

si ee peed Mcetaited Vey ee

, ‘The collapse of the inside wall shown in Exhibit 13 could

at “@allow intercommunication necessary for the force of an_

explosion on the setond floor'to'go downward and out —

front door on the first floor. That should explain why, if

there is any explosion in the southeast corner of the second .”

floor, thé front- door of the first floor was blown across’

the street. 2 : | ,

-_.

oa De, Hanes Laupeeer, on behalf of ¢ defendant, testified:

. other building, the Ross Building, which was- between |

= ja and. the Martin building. IT dressed ‘and _went right ,

Direct Examination. a ee (

. . lama doctor of osteopathy at Tipton, Missouri. Iam

“not a member of the volunteer fire department in Tipton,

; but I did help them on the night of the fire in the building a

shown in. Exhibit 15. On the-night of the fire I was at —

home.one block west of the building. I was awakened and

‘T opened the Venetian ‘blind and saw the fire. I gould just

- see flames in the, sky.. I could only see the fire over an-

wn to the scene. Sige “05%

When I got there the raved, ‘fire’ ‘rack was ‘coming up |

the street, and I think there were : bwo ladies standing on

the sidewalk. That is the only people I. remembet seeing

at the time. Exhibit 21 is the general- appearance of the — -

- west wall of the. building as I saw it when I arrived.

_ got there. Whether it was exactly like’ Exhibit 12, I don’t.

temember, With respect to the floor of the second bufild-. -

There was more fire inside than shown in the picture.

‘Exhibit 13 is another view of the same part of the buildirig

taken. from a different angle. (Witness points to section —-:

of roof that he saw imimediately upon arriving that night.)

_ The north wall of the building was still up when.T got -

there, as shown in Exhibit -13. There was a. section Bf. the

inside wall, that is, the next ‘wall east, coligpsed when I

sg ing from.Moreau, I remember ‘the edge of the floor stick-

ing out through an openitig, and as I remember was. cupped -

down a little. I don’t remember just how much. I

can’t be certain whether I saw what is shown in Exhibit

12. When I arrived the roof over the next building east of :

the westernmost cen was still in ‘place. it ‘later .fell

: . down. .

‘The cuppihg of the send floor in the second building —

: caused the water that we shot up there to run back down.

It was running down this floor just beyond the brick wall

| ae

°°

which was partially collapsed. between the west building . ,

and the next building to the east. ‘When | I was fighting the

‘fire we were on the roof of the one-story building im-.

sate: back of what had been the peeiery oe

‘S

oe 4

; re ages

that is; the roof.of Veatch’s Tam sure part-of the

~. south wall at Vic te was down then, be-

__cause-we were shooting water. through there. _

~~. To ‘the ‘best of my. knowledgé we saw. some bathroom

. fixtures in! the area where we were directing our water. .

That was on. the. second floor. There was a little jet. of

flame, or torch, in that area where we were directing our

—_. _ water, “which would seem like. it’ was. about to. go o

Kes at atter we would pass over it it would shoot bac ut,

Sak continue to shoot out. I don’t remember when the _

\ flame went out, = — : 3

° e/ ; - _ Cross’ Eximingtion.. So

~ When I arrived there was flame aspen ibee coming out» -

S. through this north side:. I don’t recall anything - looking

~ like. Exhibit 21) that is, when I hesitated awhile ago, I

don’t recall the picture in comparison to when I arrived.

So ea picture looks familiar as. to the later time when : the

fire was pretty much tinder control. I saw the dbors from

the Martin building that were across the street at Gab>

bert’s. garage. The doors lay right by the pumps. I noticed

that Gabberts’ plate glass window was out. I believe the

f ;

-glass was inside the show room. The part of the Gabbert - a

the. street oon the front: part -of the west side of the

Martin:

door: to the devibeeky to the Gabbert garage would be

The windows that were iin. the slanting. -

roughly opposite t6'‘the southwest side of the Martin build- .‘

ing. I don’t remember whether they were out or not.’ I-

“would not say that they. were. Exhibit 12 shows a scodped- :

out place in the wall that divided the westernmost building .

and the second building from the west. I don’t remember

-whether that condition aS shown in the picture existed

when I arrived, or whether it collapsed further or burned

out further after I got there. I remember there was some

out, but whether more fell out later ‘I honestly don’t re- .- |

- member. I don’t remember if the second-floor. of the sec-

_ ond building from the corner was cupped when I got there

or‘not, or if it was cupped later. To the best of my'memory ~—

the’ floor ‘was about where it is supposed to be. I don’t —

mecesece ceo;

5 Re Ses eae ee

R ‘ . ae

a4 know. ek had awekened | me + tint: night, but T woke up. ;

S knowing that — had happened.

- Lonnie BELL, on. behalf of defendant, testified:

Direct’ Examination,: 3 |

I .have lived i in Tiptons Missouri, since 1931. I pears to

‘Tipton the first of November i in. 1939; to put ina restaurant

in the Hilgert building. :

The building that. -T rented. for the restaurant was the

one that. was’ ‘involved in_this fire. ‘Hilgert agreed to put — :

gas in. for meé and fix the-building up with a new floor.

There was no gas in it when I went to rent it: It was about

a month and one-half. from-the time I talked to hirn until

I got to move ‘in. I had gas to cook with when I moved in._

The meter for that gas service was on the west side: of. -

the building \right by the side of the building. It is shown 2 2,

in Exhibit 27, Before I rented the building and after I had* a

first seen Mr. Hilgert there was rio meter on the side.:

After I moved in I saw the meter. You couild tell -it had:

been freshly ‘put inf (objection sustained to. question: “Did

you see where -there had been digging done there, as {o

underneath the ground?”). I ran the™ ‘restaurant. until. -

_ sometime iw 1941 when I sold it to a man by the name of

a Smith. I. used gas duiiing 1 that time, and the gas was in

_ my name. =

—_—

a ‘Ciee Examination.

Tam scsi. sure that.I started the eeitaulint in N ovem= |

ber: instead of September. | ‘The restaurant was on the

‘ground floor. There was. already gas in-the building when.

_» I moved in. I don’t know whether gas was.used upstairs

by the telephone company when I moved in the dowfi- ©

~ + stairs: part or not; I couldn’t swear to that. The telephone

| company did not receive their gas through my meter.. I~

_ don’t know when the service line from the main up to the = '

meter was-put in, When I moved in the meter was there.

I don’t know nothing about. the service pipe. (Exhibit .32,

aes: a Statement dhe the bee au is grarked for. Panhiestion. )

a ey

PR EDA Ik Rem eS PO,

I said in this statement I had no. idea when the service

pipe to the meter was. put in,.ijt was in when I first came

to Tipton. That is true. I @6n’t know when the service - :

pipe was put in. I don’t know whether the service pipe —

| _was-in or not, but the meter =) in when I-first came

‘to Tipton. The meter was in when I moved into the place,

: but it was not in when I went to rent. the building..

Se fF Z

oe 4 2d

Hanae "Kouzes, by. deposition on behalf of “defendant,

- testified: a

I live in : University City, Missouri, on ‘week-ends} and I

. live in Tipton during the week. I am. superintendent of *: -

‘the. firm. I have been superintendent at Tipton since

“* 1947. Otto. Carver, the maintenance man, took care ‘of —

most . everything in the building with: regard to mainte--

“nance. “I was in St. Louis at the time of the fire, and had

left Tipton after work the previous Friday. I got back in

. Tipton Monday morning about 9:00 or 9:30. The build- -

ing was closed on Saturday and Sunday, except that on

S Saturday machinists might come in or the man that cleans’) -

up the place, but on Sunday it would have been. closed un-_

. less Carver came in to see that everything wa was in. working

order. I ‘don’ t remember whether I had any work for. the

“machinists to do on thé Saturday before the fire or not.

- T- never pcg ried foul- odor when I would go in the

a building is closed and you walk in there;-that is about

all.*.I don’t know’ of any mention being ‘made of such an

- odor. Once-in awhile you can have an odor of cloth if the |

- building has been closed for a day or two. We kept our —

bolts of cloth downstairs toward the front of the building, ~

toward the office part of the building. We kept a little bit

of cleaning fluid for spots, but it is in — that

won’t burn. . We kept it upstairs. .

On days that. the factory. is not in tineratites sith as.

Saturdays and Sundays, 4. would say that the temperature |

in there would be 50 to 55 degrees: ee or. oem

would = 70-80 — 3

the presence of. the: jury: )* . Ss 2

oS - .

| We were kind of crowded downstairs and we had some

empty space upstairs, and that is why we made the change

in December. We put in a rtew floor upstairs. We had no -

machines upstairs prior to December, 1954. We moved up ‘

'. 125 to 140 machines. We strengthened the stairs. I never =

. smelled any odor of natural gas in the building. You could

go a block or two: from there in the alleys and you could

smell gas. You don’t smell gas in those alleys now. They |

. kept taking out pipesand replacing them. I had smelled ‘it ---

from. the time I was down there up until about two years

“could take the machines up by the use of ropes. (Defend¢

ant offers in evidence-defehdant Exhibits 30 and 31 in

their entirety, ‘being the Tipton Ordinances. saeomnae

one. in evidence Exhibit 33.) | : 7

(Whereupon the défendant rested and, shimccaiaies, thé

following proceedings were /had in court chambers, out of

“J

_ The Court : Go ahead, Mr. J ames.

-.. Mp. James: -I “asked this questidn, and I am ene |

ing from a transcript Miss Finlty prepared: “Q. No, 3

that isn’t the question. The question is where you.

- find a pipe that "has been in*therée since 1931, or

: shortly thereafter, at: least been in there ‘a long time, °

has become so generally corroded that you. can’t repair -

it and instead replace it, don’t’ you consider ‘that /

warning to check for other like pipe in the neighbor-

hdd to see if there are any other leaks?” |

The Court sustained objection made on the ground é

— that it was misquoting the testimony, argumehtative,

~~ and. improper: ¢foss-examination, and I offer to show

. that if the witness is permitted to answer that ques-

tion he would say that it would be a warning.

va ib ago ‘(deposition taken April 17, 1956). When we. made the | |

Rt:

‘The Court:, «ll right, let the offer be made, eee

Mr. Jackson: Yes. .— |

The Court: As at the time it was originally of-

fered. Sustained. -

-; ae James: q asked this question <¢ of Mr. McGee:

“«Q, This hale that you saw waite you ‘diel up the pipe

in, question was the biggest, hole you ever saw in. gas

| pipe, wasn’t it?”

‘It was objected to on the. ground it didn't tend to

. prove or disprove anything in the case, objection was —

_ sustained, and I offer to show that if the witness had

- been permitted to answer he would have answered. in

_ the affirmative, that it was, namely, that the hole ia:

Exhibit 25 was the biggest hole he ever: saw in.a gas.

Pipe. = 2

1 The ‘Court: “Did he so state in his deposition?

se Mr, J fames:> Yes. . ‘ |

~ Mr. iller: I think that ‘objection had some: other

_ grounds, too. I don’t recall just what it was. (Co me

loquy off the: record.) - | ie

Mr. James: I was offering that on the thedey that |

the size of the hole had some relation to the time it —

had been there... BS ee

» Mr. Miller: That wonlde’t prove anything. ie

Mr. James: And these others he found in this cor- .

-roded pipe he replaced,. indicating that it had been:

‘a three or four year eee In any event, I want:

to make that offer. — 7 8 ; oe ..

The Court: All right, let the offer ,be made. Same eee

objection, same ee Aes

Mr. James: I asked this qinitiein of ‘Mr. McGee:

“Q. Now, Mr. McGee, no other pipe has had to be.

replaced in-Tipton except in that one area right there

‘eS adjacent to the factory building since the system went

in in 1931, to your knqwledge, isn’t that correct?” * .

Le Mr. Miller objected on the ground it didn’t tend.-to —

_ prove or. disprove any ‘issue/}in the case. The Court

sustained it. I offer to show if the witnéss were per-

mitted to answer he would have answered in the af-

- firmative, that there was— ‘

The Couft:’ You are ma

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