Gathright v. Pendegraft

Decision Date09 September 1968
Docket NumberNo. 2,No. 52767,52767,2
Citation433 S.W.2d 299
PartiesJ. T. GATHRIGHT, Administrator of the Estate of Rita Yvonne Gathright, Deceased, and J. T. Gathright, Respondents, v. Glenn W. PENDEGRAFT, City of Fulton, Missouri, and W. D. Vaughn, doing business as Vaugh Plumbing and Heating, Appellants
CourtMissouri Supreme Court

Hendren & Andrae by John E. Burruss, Jr., and Kelly Pool, Jefferson City, for respondents.

John L. Hearne, keyes, Bushman & Hearne, Jefferson City, for Glenn W. Pendegraft, appellant.

W. C. Whitlow, Fulton, Robert L. Hawkins, Jr., Graham & Hawkins, Jefferson City, for appellant City of Fulton.

Richard R. Nacy, Jr., Jefferson City, for appellant W. D. Vaughn.

STOCKARD, Commissioner.

The action of Rita Yvonne Gathright for personal injuries, and the derivative action of her husband, J. T. Gathright, were consolidated for trial. Pursuant to jury verdicts the trial court entered judgment against all defendants in favor of Mrs. Gathright in the amount of $50,000, and in favor of J. T. Gathright in the amount of $5,000. Each defendant has appealed. Mrs. Gathright died subsequent to trial and J. T. Gathright as administrator of her estate has been substituted as plaintiff-respondent in her case.

In the spring of 1960, defendant Glenn W. Pendegraft, a general contractor, started the construction of a house at 1109 Cote Sans Dessein Road in Fulton, Missouri. Before the house was completed Mr. and Mrs. Gathright agreed to buy it, but in order to do so it was necessary to obtain a 'V.A. loan.' Although the house was 'substantially completed' in October 1960, approval of the loan was not obtained until about the first of May 1961.

The plumbing work for the house was done under contract by defendant W. D. Vaughn. His employees constructed gas pipes to the furnace, the water heater, and to the area under the kitchen. A 'T' was placed in the pipe under the kitchen and from each arm of the 'T' a copper pipe was run vertically through the floor to the area of the range and oven. According to Mr. Vaughn the gas line was not connected to either the oven or the range. His workmen testified, however, that one of the copper pipes was connected to the oven, but the range had not then been placed in the counter and for that reason the other copper pipe could not be and was not connected to it. That pipe was not capped or plugged. At the time the gas meter had not been installed. mr. Vaughn testified that he told Mr. Pendegraft that the job was not finished, and that when the house was ready to receive gas Mr. Pendegraft was to notify him and he would return and test the system. Mr. Pendegraft denied this conversation took place. Mr. Vaughn was never notified that the house was ready to receive gas, and he was not requested to test or inspect the system, and he did not do so.

On May 3, 1961, after approval of the 'V.A. loan' was received, Mr. Gathright requested the City of Fulton, the supplier of natural gas, to install a meter at the house, and this was done by a city employee. A valve located at the curbline was turned on. The valve located at the meter was turned off but not sealed.

Mr. and Mrs. Gathright planned to move into the house on May 13, but during the preceding week they intended to move small articles into the house. Late in the afternoon of May 7, a Sunday, Mr. Pendegraft asked Mr. Edwin O. Thompson, a plumber who was working on his daughter's house nearby, to repair a broken water pipe in the basement of the Gathright house, to turn on the gas, and then light the water heater. Mr. Thompson did repair the water pipe, and according to Mr. Pendegraft he also turned on the gas at the mater. However, Mr. Thompson denied that he turned on the gas, and testified that when he checked the water heater he found that the gas had already been turned on so he lit the heater. For this work, Mr. Pendegraft paid Mr. Thompson two dollars.

On the afternoon of May 8, Mrs. Gathright requested Mr. Pendegraft to unlock the house. When they entered the basement Mrs. Gathright remarked that she 'smelled something which smelled like it could be gas,' and Mr. Pendegraft examined the water heater and found that the pilot light was burning. Mr. Pendegraft testified he smelled nothing, but he admitted that his sense of smell was not normal, and that there could have been odors that he did not detect. Mrs. Gathright said that it was not a strong odor, that she was not sure what it was, and that she could not say it was a distinct odor of gas. After Mr. Pendegraft checked the water heater, she 'thought nothing more about it.' Mrs. Gathright and Mr. Pendegraft then went to the first floor of the house, inspected two bedrooms, and went to the kitchen area. Mrs. Gathright said that upstairs she smelled some odors peculiar to a new house such as 'new wood and paint,' but she did not identify any odor as being natural gas. While attempting to light a burner on the range, Mr. Pendegraft lit a cigarette lighter and an explosion resulted which did extensive damage to the house and inflicted the injuries to Mrs. Gathright which are the basis of her cause of action and that of her husband. Certain other facts will be mentioned in the course of the opinion.

Plaintiffs' submission of negligence as to each defendant was as follows:

As to defendant Glenn W. Pendegraft the submission was that he negligently (1) turned on the gas and caused it to flow into the pipes of the house without first inspecting, or causing the gas pipes to be inspected to determine if it was safe to start the flow of gas into them; or (2) caused and permitted temporary, unsafe or makeshift conditions of piping to exist in the house in violation of an ordinance of the City of Fulton; or (3) failed to test and inspect or cause to be tested and inspected, or determine whether there had been an inspection of the gas piping in the house in violation of an ordinance of the City of Fulton. In addition, there was a submission as to Mr. Pendegraft that his employee, Mr. Thompson, negligently turned on the gas and caused it to flow into the pipes of the house without first inspecting them, or without first ascertaining whether an inspection had previously been made.

As to defendant City of Fulton the submission was that it negligently 'failed to odorize the natural gas which it supplied sufficiently that a person with a normal sense of smell could detect the presence of the gas.'

As to defendant Vaughn the smbmission was that he negligently (1) 'failed to connect the cooking stove in the house to the gas pipes installed therein, and also failed to cap or plug said pipes,' or (2) 'failed to connect, cap or plug the gas pipes leading to the cooking stove or oven in the house for a period of several months after completing the system of gas piping for the house without determining when the gas meter would be installed and without giving warning to other persons of such open gas pipes in the house,' or (3) caused or permitted temporary, unsafe or makeshift conditions of piping to exist in the house in violation of an ordinance of the City of Fulton, or (4) 'failed to test and inspect the gas piping in the house' in violation of an ordinance of the City of Fulton.

The City of Fulton contends that the trial court erred in overruling its motion for a directed verdict because (1) plaintiffs did not allege in their petitions that the City of Fulton violated 'any legal duty with respect to odorization of natural gas,' and (2) the evidence was insufficient to support a finding by the jury that the City of Fulton failed to odorize the gas so that a person with a normal sense of smell could detect the presence of the gas.

Plaintiffs' allegation of negligence on the part of the City of Fulton was that it 'negligently and carelessly failed properly and sufficiently to odorize the gas supplied by it to the said house so as to enable the detection of its presence by (Mrs. Gathright) and others upon the premises.' In Fields v. Missouri Power & Light Company, Mo., 374 S.W.2d 17, at p. 27, it was held that the duty of the supplier of natural gas is not to odorize it so that a particular person could detect its presence, 'but to odorize it so that it could be detected by a person with a normal sense of smell.' The City of Fulton argues that this allegation in the plaintiffs' petition did not charge it with a violation of any legal duty.

Although the allegation of the petition as to the duty of the City of Fulton was poorly worded, we think when given a liberal construction, Zuber v. Clarkson Const. Co., Mo., 363 Mo. 352, 251 S.W.2d 52, and in the absence of a motion to strike or to make definite and certain, the City of Fulton was not misled but was fully informed that the issue tendered by the pleadings was the same as the issue subsequently submitted to the jury in the instructions. However, as subsequently demonstrated, the issue as submitted by the instruction was supported by evidence to which no objection was entered. See Harris v. Goggins, Mo., 374 S.W.2d 6; Heald v. Erganian, Mo., 377 S.W.2d 431; Civil Rule 55.54, V.A.M.R. The City of Fulton asserts that it did not object to the testimony respecting the ability of Mrs. Gathright to smell because it had alleged contributory negligence on her part which included a failure to act upon a warning received. We note, however, that no instruction submitting contributory negligence of Mrs. Gathright was requested by City of Fulton, and none was give. Secret reasons by a party for not objecting to evidence cannot be controlling, and evidence admitted without objection, regardless of the reason, brings into effect the provisions of Civil Rule 55.54 that issues not raised by the pleadings which are tried by express or implied consent of the parties shall be treated in all respects as if they had been...

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