Appeal
from Circuit Court, Montgomery County; Walter B. Jones
Judge.
Action
for wrongful death by Paul R. Hammond against the Alabama
Utilities Service Company. From a judgment for plaintiff
defendant appeals.
$25,000
for minor son's death held excessive by $7,000 (Code
1923, § 5695).
Defendant
interposed the following special pleas:
"A.
Comes the defendant and says that the plaintiff should not
recover herein because he was guilty of negligence which
proximately contributed to the injury and death of his said
son, in this, that he moved into said apartment on, to wit,
September 30, 1930, with his said wife and said son and
continued to live therein with them until after the death
of said son; that up to, to wit, October 22, 1930, he did
not use said water heater and during that time his wife and
he were almost daily in said kitchen and she was cooking
therein on an oil stove but during said time she was not
made sick thereby; that on, to wit, October 25, 1930, she
was working in said kitchen where the gas was burning under
said water heater and suddenly became very ill, suffering
with a severe headache and violent pains in her temples and
was nauseated and felt like she had taken ether and for
some time could not speak and was assisted from said
kitchen to her bedroom by said husband, all of which was at
that time known to him, but he negligently continued to use
said heater and negligently failed to warn his said son
against using it and negligently failed to make any
investigation as to the cause of her illness and
negligently failed to report the same to the defendant or
request it to make any investigation; that if he had
immediately reported the same to the defendant it would
have investigated as to the cause of said illness to
ascertain whether it was caused by said gas heater and if
it had found anything wrong with said heater or with the
vent pipe or chimney or the gas burner it would have
prevented the further use thereof until it was corrected.
"B.
Comes the defendant and says that the plaintiff should not
recover herein because he was guilty of negligence which
proximately contributed to the injury and death of his said
son, in this, that he moved into said apartment on, to wit,
September 30, 1930, with his said wife and said son and
continued to live therein with them until after the death
of said son; that up to, to wit, October 22, 1930, he did
not use said water heater and during that time his wife and
he were almost daily in said kitchen and she was cooking
therein on an oil stove but during said time she was not
made sick thereby; that on, to wit, October 25, 1930, she
was working in said kitchen where the gas was burning under
said water heater and suddenly became very ill, suffering
with a severe headache and violent pains in her temples and
was nauseated and felt like she had taken ether and for
some (time) could not speak and was assisted from said
kitchen to her bedroom by said husband, all of which was at
that time known to him, but he negligently continued to use
said heater and negligently failed to warn his said son
against using it and negligently failed to make any
investigation as to the cause of her illness; that if he
had investigated with reasonable care he could and would
have discovered that her said illness was caused by gas or
gas fumes and would have discovered the conditions which
produced said gas or gas fumes and would have discovered
that they were probably caused by a partial or total
obstruction of the vent pipe from said heater into the
chimney or such obstruction of said chimney into which the
vent pipe was inserted and through which it was intended
that said gas or gas fumes from said heater should be
carried out from said kitchen, or that said sickness was
due to some other cause which could have been remedied
before the heater was used by his said son on October 27,
1930, but he failed to make such investigation."
The
following charge, made the basis of assignment 25, was given
for plaintiff:
"1.
The Court charges the jury that, if the heater was
defective or its vents were stopped up yet if the defendant
undertook to adjust the burner to the heater and
negligently did this adjusting and as the proximate result
of this negligence, plaintiff's minor son, James B.
Hammond, lost his life, then plaintiff is entitled to a
verdict in this case the amount thereof to be determined by
the jury but not exceed $50,000.00."
The
following charges, made the basis, respectively, of
assignments 29, 30, 31, and 32, were refused to defendant:
"D-3.
I charge you that if defendant Gas Company did not install
or furnish the hotwater heater which it is claimed caused
the death of James Hammond, then there was no duty on the
defendant Gas Company to inspect the heater or flue to see
that it was in safe condition for use."
"D-4.
I charge the jury that a gas company in furnishing gas to
be used in the interior system of a house and to appliances
which were not furnished by the gas company is warranted in
assuming that the interior system of pipes and appliances
are sufficiently secured to permit the gas to be introduced
with safety."
"D-5.
The Court charges the jury that the only authority which
the witness Morgan had with reference to the heater
involved in this case was to set the meter and turn on the
gas and leave it to the other employes for anything else to
be done."
"D-6.
The Court charges the jury that if they believe from the
evidence that the witness Morgan or the witness Cobb stated
to the plaintiff or to his wife after said burner had been
converted to the use of natural gas that it was all right,
said statement did not bind the defendant with reference to
any defects which may have existed in said heater or in the
vent pipe or in the flue."
Ball &
Ball and Steiner, Crum & Weil, all of Montgomery, for
appellant.
Hill,
Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.
BOULDIN
J.
The
action is under the homicide statute, Code, § 5695, a suit by
the parent to recover damages for the death of his minor son
caused by the alleged wrongful act or negligence of
defendant.
Among
the questions presented for review, appellant strongly
insists it was due the affirmative charge.
Count A
of the complaint, the sole count on which the case was
submitted to the jury, avers:
"***
That on to-wit: October 22nd, 1930, plaintiff was in
possession of a certain apartment in the building in the City
of Montgomery, Alabama, located at or near the Northeast
corner of Caroline and Mildred Streets, which apartment he
then occupied as his home. That there was then in said
apartment an appliance or apparatus known as an instantaneous
water heater for the purpose of heating water by the use of
gas, said water when so heated was used for domestic purposes
in said apartment. That the defendant at that time was
engaged in the City of Montgomery, Alabama, in the business
of furnishing for a reward gas to the public generally, and
then and there undertook in the prosecution of its said
business to furnish for a reward natural gas to said
apartment, to be used in said heater, and undertook to adjust
said heater for the use of said natural gas therein, and did
said adjusting in so careless and negligent a manner that as
the proximate result and consequence thereof on to-wit:
October 27th, 1930, while plaintiff was in possession of said
apartment, as aforesaid, and while natural gas furnished by
the defendant was burning in said heater, poisonous and
dangerous gasses were emitted in such apartment from said
heater or its connections, to such an extent that
plaintiff's minor son, James B. Hammond, who was then and
there in said apartment, was overcome and killed by said
poisonous and dangerous gasses."
Evidence
tended to show plaintiff's minor son came to his death
from carbon monoxide poisoning, and that such poisonous gas
was generated in and passed into the atmosphere of the room,
a closed kitchen, from a hot water gas heater of the vulcan
type.
Defendant
company had been supplying its customers in Montgomery with
artificial or manufactured gas, and was introducing instead
natural gas.
On
October 4th an advertisement or notice and warning was
published through the press, headed: "Natural Gas is
Here."
We quote certain pertinent excerpts:
"Read
the Red Card-
"A
red card, on which is printed complete instructions, has been
mailed to every customer in this district. Please follow
these instructions exactly. ***
"We
will make Adjustments-
"Early
Monday morning, a large force of expert workmen will begin on
a pre-arranged schedule to adjust every customer's
appliance. This schedule is designed to complete the job as
quickly, and with as little inconvenience to everyone as
possible. Please do not ask us to vary from it, since to do
so would cause endless confusion, and delay the completion of
the adjustments, inconveniencing everyone.
"Ranges
and water heaters will first be adjusted all over the city
***
"The
same heat-Less Gas-
"The
adjustment which will be made to your ranges, water heaters
and other equipment is designed to give you just the same
amount of heat that you now have in these appliances-if they
are now properly adjusted.
"Although
Natural Gas contains about twice as much heat as manufactured
gas, only about half as much gas will be used-the lesser
amount of gas necessary to do the same amount of work will
mean the saving to you.
"Natural
Gas burns with a 'lazy' flame. It will not
'look' as hot, but it will be.
"When
it reaches your Home-
"You
will be able to tell when natural...
