Baker v. Kansas Power & Light Co.

• Decision Date: 10 July 1937
• Docket Number: 33355.
• Parties: BAKER v. KANSAS POWER & LIGHT CO.
• Court: Kansas Supreme Court

69 P.2d 731

146 Kan. 258

BAKER v. KANSAS POWER & LIGHT CO.

No. 33355.

Supreme Court of Kansas

July 10, 1937

Syllabus by the Court.

In action against gas distributing company for injuries caused by explosion, evidence held to authorize finding that distributing company had not made proper inspection, that gas leaked in noticeable quantities, and that distributing company had notice of break or leak in gas line, rendering company liable for negligence.

A gas distributing company which used, without owning, service pipe line running under tenant's garage to supply gas to neighbors, and, after being notified of odor or gas leak in or near garage, sent employee who did not make inspection according to approved practice in gas industry and found no gas leak or odor, was liable for negligence for injuries to tenant caused by explosion of gas in garage, even though tenant did not own pipe nor use gas.

$9,000 for permanent injuries to man 37 years old with expectancy of about 30 years, comprising permanently disfigured face and crippled hands, held not excessive where injured man's business was clerical, with no hope of improvement in ability or of certainty of retaining such clerical position.

Where a gas distributing company used a service pipe line which was buried on plaintiff's premises and ran under his garage to supply gas to a customer on the next lot east, which service pipe line was not used by the plaintiff and was not owned either by him or the distributing company, and the company was notified as to an odor or gas leak in or near the garage, and it sent an employee who did not make the inspection according to the approved practices in the gas industry and found no gas leak or odor, and later an explosion of gas occurred in the garage from a defect in the service pipe under the garage, the distributing company was guilty of negligence and is liable for any damages or injuries to plaintiff that could have been avoided by a proper inspection and investigation, following the holdings in Swayzee v. City of Augusta, 113 Kan. 658, 216 P 265, and Atkinson v. Wichita Gas Co., 136 Kan. 854 18 P.2d 127.

Appeal from district court, Riley County; Edgar C. Bennett, Judge.

Action by Howard C. Baker against the Kansas Power & Light Company. From a judgment on a verdict for plaintiff, defendant appeals.

Thomas F. Doran, Clayton E. Kline, Harry W. Colmery, M. F. Cosgrove and Robert E. Russell, all of Topeka, and Hal E. Harlan and A. M. Johnston, both of Manhattan, for appellant.

Fred R. Smith and Gerald F. Smith, both of Manhattan, Raymond E. Smith, of Marysville, and E. R. Sloan, W. Glenn Hamilton, F. A. Sloan, and Eldon R. Sloan, all of Topeka, for appellee.

HUTCHISON Justice.

This was an action in tort against the Kansas Power & Light Company, a corporation supplying the citizens and the public in Manhattan with natural gas. It was brought by one who was injured in an explosion of natural gas in his garage on August 20, 1935, as he attempted to drive his automobile out of the garage as usual at 8 o'clock in the morning. The explosion came from gas from a pipe running under the garage which had been placed there in 1920.

There were three lots facing the south on Vattier street. The plaintiff occupied the middle one of these three lots as a tenant and had occupied the same from December 14, 1934, and had kept his automobile in the garage during that time, using it every day. There was no gas connection with the garage. The house in which he lived was connected with gas but not with the line which went under the garage. The house connection ran to the alley at the north of the lot and connected with the main line of the defendant company running east and west through the alley. The line that went under the garage also connected with the line in the alley and a short distance below the garage turned to the east and entered and supplied the house on the lot to the east of the one where plaintiff resided. There was also a branch connection or line that ran to the west and at one time connected with the house on the west, but it was disconnected before this accident and plugged at the outer end.

The plaintiff did not know that any line ran under the garage and neither did the defendant company know of it, said company being a successor of former companies which distributed artificial gas and later natural gas. The line was put in at the request of the owner of the lot on the east in 1920, and at that time there were no buildings on this center lot, and it was stipulated in the trial that this service line under the garage was not the property of the defendant. It was located about 1 1/2 or 2 feet west of the east line of the center lot and about 1 1/2 feet under the garage along the east side thereof.

A tenant by the name of Christie and family occupied these premsies, that is the middle lot, just prior to the time they were occupied by the plaintiff, and on or about September 5 or 6, 1934, they notified the gas company of a peculiar odor in and about the garage. The defendant gas company sent one of its representatives on September 6, 1934, to make an examination in regard thereto. He did so and reportedto Mrs. Christie and handed her a statement in writing as follows: "checked for leak at garage but none--no pipe close by garage. No pipe within 20 foot of garage," and asked her to call him if they noticed anything more. The plaintiff and his family had not used natural gas before moving into this property and were not familiar with its odor.

The plaintiff in his petition charged the defendant with negligence along several different lines which he alleged led to the explosion and to his severe injury, especially to his face and hands, and asked to recover several items of damage sustained by reason of the explosion. The defendant after making some preliminary motions filed an answer in the form of a general denial, and specially alleged that the plaintiff had sole control over the premises on which the garage was located and knew, or should have known, the condition of the garage and any gas pipes located on the premises, that being a healthy man he should have detected the escaping gas and used his sense of smell and known that it was dangerous to start an automobile under such circumstances if gas was escaping and that he was therefore guilty of such contributory negligence as would bar his recovery. To this answer a reply in the form of a general denial was filed by plaintiff.

The matter came on for trial on September 14, 1936. A demurrer of defendant to the plaintiff's testimony was overruled, and the defendant introduced its evidence, and after instructions by the court the jury rendered a verdict in favor of the plaintiff in the sum of $11,993.60, and in connection therewith made the following answers to the special questions submitted by the court:

"One: Was the inspection made by defendant pursuant to the complaint received from Christies made according to approved practices in the gas industry? A. No.

"Two: Did the defendant company, as a result of such inspection, find any escaping gas on the premises at 1226 Vattier? A. No.

"Three: Did gas escape at any time prior to August 19, 1935, into the garage in question and while the plaintiff resided at 1226 Vattier Street in such quantities as to be noticeable or detectable by the sense of smell? A. Yes. But plaintiff did not recognize or detect odor.

"Four: If you find for the plaintiff, then state the amount of damages which you allow for: A. Doctors' bills; B. hospital bills; C. damage to automobile; D. damage to clothing; E. loss of time from employment; F. permanent injuries; and G. pain and suffering. A. $132.00; B. $226.60; C. $150.00; D. $35.00; E. $450.00; F. $9000.00; G. $2000.00.

"Five: If you find that the defendant was guilty of negligence which was the proximate cause of the explosion, then state the act or acts of negligence of which you find defendant guilty. A. Guilty of negligence: 1st, in not making regular inspections as provided by ordinance; 2d, in not making proper and thorough investigation at time notice of leak was given, when investigation was made by Mr. Roberts on September 6, 1934.

"Six: If you find that there was a break in the gas line under the garage from which gas escaped in sufficient quantities to cause the explosion in question, then state:

"A. When such break in the gas line occurred? Answer. Some time prior to September 6, 1934.

"B. What caused said gas line to break? Answer. Deterioration of pipe and some unknown force of nature.

"C. Whether the defendant company had any knowledge or notice prior to the time of the explosion that there was a break or defect in said gas line. Answer. Company had notice of gas leak at time Mr. Christie notified them of odor of gas.

"D. Who, if any one, notified the defendant company that there was a break or defect in said gas line? Answer. Mr. Christie."

After the overruling of motions for judgment on the special findings notwithstanding the verdict and for a new trial, judgment was rendered for the plaintiff on the verdict, from which judgment the defendant appeals.

The defendant outlines four special questions involved in the appeal:

1. Where natural gas is delivered to a consumer through service pipes installed at the expense of and owned by the consumer, is the gas company required to make frequent examinations of such service pipes for the purpose of detecting defects in them?

2. If the occupant of the premises in the fall of 1934 noticed a peculiar odor on the premises and reported the same to the company, and upon investigation the company failed to discover evidence of leaking gas and directed the occupant to notify the company if the odor...