Avery v. City of Lyons, 41063

Decision Date08 November 1958
Docket NumberNo. 41063,41063
Citation331 P.2d 906,183 Kan. 611
PartiesRoy AVERY and Lulu Avery, Appellees, v. The CITY OF LYONS, Kansas, a Municipal Corporation, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. In an action where the owners recovered a judgment against a city for damage to their building, a stock of merchandise, and their business, resulting from an explosion and fire allegedly caused by the presence of natural gas in and under the building which had leaked from defendant's defective gas mains, the record is examined and it is held: Upon consideration of the entire record, as more fully discussed in the opinion, the trial court did not err in overruling defendant's motion for a new trial and in entering judgment upon the verdict for the plaintiffs.

2. Where the plaintiffs' evidence was sufficient to overcome a demurrer in an action such as indicated in Syllabus No. 1, a question of fact is presented for the determination of the jury as to whether the plaintiffs had sustained the burden of proof by showing: (a) The cause of the injury to be escaping gas; (b) that such gas belonged to the defendant company; (c) that it escaped through the negligence of the company; (d) that it accumulated in the place where the injury occurred; and (e) that defendant negligently and proximately caused the damage.

3. Where in answer to a special question the jury gives a 'Don't know' answer concerning a matter of contributory negligence, it is incumbent upon the party asserting the contributory negligence, if such answer is considered to be too vague and indefinite, to move the trial court for a requirement that the jury give a more specific answer before being discharged. Failing this, the answer is construed against the party asserting contributory negligence since the burden of proof is upon the party asserting it.

4. The admission into evidence of values placed upon personal property for tax assessment purposes by a person whose property is subject to taxation, may be explained by showing that pursuant to instructions from the county assessor the particular property was taken in at only a certain percentage of its actual value, where the full market value of such property is in issue.

5. It devolves upon the party appealing to bring up a complete record of all matters upon which review is sought. This rule has application where the trial court refuses to give a requested instruction and the other instructions, which may have a bearing on the point, are not presented in the record.

6. Loss of profits from destruction or interruption of an established business may be recovered where the plaintiffs make it reasonably certain by competent proof what the amount of a loss actually was. It must be made to appear the business had been in successful operation for such period of time as to give it permanency and recognition, and that it was earning a profit which may be reasonably ascertainable or approximated.

7. Where it is shown by the evidence that a general merchandise store has been destroyed by fire under the circumstances described in Syllabus No. 1, as a result of which the value of such business was depreciated by reason of its having to stand idle during the period required for its rebuilding, it is proper to include those damages sustained by injury to the good will of the business as an element of damages.

8. The provisions of G.S.1949, 12-105, simply require that a notice in writing, setting forth the necessary information, be served upon a city within three months after an injury to persons or property as a prerequisite to the right to maintain an action against the city. The statute makes no limitation as to otherwise proper elements of damage for the specific injury occasioned where the notice claimed such damages as known consequences of an injury already sustained.

Edward Wahl, Lyons, argued the cause, and Bronce Jackson, Lyons, was with him on the briefs for appellant.

Frederick Woleslagel, Lyons, argued the cause, and L. E. Quinlan, Lyons, was with him on the briefs for appellees.


This is the second appearance of this action for appellate review. In the first appeal the judgment of the trial court upon the verdict in the sum of $36,127.59 was reversed and the case remanded for a new trial as a result of erroneous rulings. Avery v. City of Loyons, 181 Kan. 670, 314 P.2d 307. In the second trial the jury returned a verdict in the sum of $28,432.32 upon which the trial court entered judgment. Appeal has been duly perfected from all adverse rulings and the appellant specifies trial errors.

The explosion and fire of the Avery building in the City of Lyons gave rise to a number of claims against the city. Various of the other claimants appeared before this court in Wilson v. Wahl, 182 Kan. 532, 322 P.2d 804, wherein the right of Edward Wahl to represent the City of Lyons as an attorney was challenged. Appellees herein did not join with the parties in that action nor do they here assert the question raised in that appeal.

The second trial insofar as the record discloses was conducted in accordance with the decision and opinion of this court on appeal from the first trial. The evidence insofar as the facts are concerned is substantially identical with the evidence presented at the first trial, a summary of which is stated in the former opinion. Reference is therefore made to Avery v. City of Lyons, 181 Kan. 670, 314 P.2d 307, for a statement of facts upon which further discussion of this case will proceed. Any significant variations or modifications concerning the evidence will be dealt with in this opinion upon consideration of the questions presented by the appellant in its brief.

It is specified that the trial court erred in its order overruling the appellant's demurrer to the plaintiffs' evidence (a) by reason of plaintiffs' failure of proof, and (b) by reason of plaintiffs' contributory negligence. On reviewing the record in the first appeal to this court it was said:

'* * * We are of the opinion the evidence was sufficient to withstand the demurrer and the trial court did not err in its ruling. Hashman v. Wyandotte Gas Co., 83 Kan. 328, 111 P. 468; Richards v. Kansas Electric Power Co., 126 Kan. 521, 524, 525, 268 P. 847; Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 160 P.2d 270.' 181 Kan. at page 672, 314 P.2d at page 309.

The evidence, as viewed on demurrer, supplemental to that disclosed in the statement of facts of the former opinion, disclosed that there were three gas mains in the alley behind the Avery store. One of these mains, used by the Consolidated Gas Company, had been cut off more than seven weeks prior to the explosion. The other two gas mains, each eight inches in diameter, were city mains. One was a low pressure line with eight ounces of pressure from which consumers were served and the other a high pressure main carrying approximately 12 to 15 pounds of pressure that fed the consumer line.

Upon excavation of the city's mains in the area back of the Avery store a number of leaks were disclosed. The largest hole was 3/8ths of an inch in diameter located in the high pressure line in Main Street which was about 30 feet southeast of the closest corner of the Avery building. There was testimony from an expert that a hole of this size in the high pressure line of from 10 to 30 pounds would permit the escape of at least 500 cubic feet of gas in one hour. The morning after the explosion and fire gas was escaping from a sewer manhole in very close proximity to the large leak. The sewer line in which the manhole was located ran north and south in the alley back of the Avery store and across Main Street at the alley. There were also four or five leaks right back of the Avery store varying in from the size of 'lead in a lead pencil to the size of a lead pencil.' The evidence was not clear whether these were in the high pressure line. The leak farthest north in the lines which were excavated was 1/8th of an inch in diameter and said to be in the high pressure line about 20 feet from the northeast corner of the Avery store.

From the alley leading under the back of the Avery building were three separate lines along which gas could follow--the gas service line to the store, the sewer line which serviced the Avery store and a stub sewer line which was not being used. From the 1st day of January, 1954, through the 25th day of April, 1954, the date of the explosion and fire, rainfall in the City of Lyons was only 1.20 inches, the most at one reading was over one-half inch on February 20th. The evidence disclosed a dry condition of the soil would cause voids to open through which gas could travel; that the alley was paved except for 18 to 24 inches from the back of the Avery building; that the 65-year-old foundation would permit gas to go through where the mortar was used; and that customarily gas would enter through a wall where lines went through, if gas was escaping in the immediate vicinity.

The evidence concerning knowledge on the part of the city that gas was escaping back of the Avery building was strengthened in the second trial. A line formerly used by the Consolidated Gas Company which was adjacent to the city main in the alley back of the Avery building was cut off on March 1, 1954, by C. F. Oline, its district manager. He told Hugh Ramage, the superintendent of utilities of the City of Lyons, that the Consolidated Gas Company's line had been cut off and 'that there was a leak back of the Avery store.' Oline further testified that they intended to dig up the line back of the Avery store and repair it as soon as they had finished the one they were working on, but that 'Due to the fact that we killed that line, there was no reason for us to do it, so I notified him [Ramage] of the fact, and told him that it was his from now on.' The inference is that if there was still a gas leak back of the Avery store after March 1, 1954, the gas was...

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