Boyles v. Oklahoma Natural Gas Co.

• Decision Date: 04 November 1980
• Docket Number: Nos. 52220,52249,s. 52220
• Citation: 1980 OK 163,619 P.2d 613
• Parties: Kenneth David BOYLES and Debra L. Boyles, husband and wife, Plaintiffs- Appellees, v. OKLAHOMA NATURAL GAS COMPANY, a Foreign Corporation; Accurate Fire Equipment Company, an Oklahoma Corporation; Jay Leasing Company, an Oklahoma Corporation and George Carder, d/b/a George Carder Plumbing Company, Defendants-Appellees, Canteen Corporation of Oklahoma, an Oklahoma Corporation, Defendant-Appellant. Kenneth David BOYLES and Debra L. Boyles, husband and wife, Plaintiffs- Appellees, v. OKLAHOMA NATURAL GAS COMPANY, a Foreign Corporation; Accurate Fire Equipment Company, an Oklahoma Corporation; Jay Leasing Company, an Oklahoma Corporation and Canteen Corporation of Oklahoma, an Oklahoma Corporation, Defendants- Appellees, George Carder d/b/a George Carder Plumbing Company, Defendant-Appellant.
• Court: Oklahoma Supreme Court

Page 613

619 P.2d 613

1980 OK 163

Kenneth David BOYLES and Debra L. Boyles, husband and wife, Plaintiffs- Appellees, v. OKLAHOMA NATURAL GAS COMPANY, a Foreign Corporation;

Accurate Fire Equipment Company, an Oklahoma Corporation;

Jay Leasing Company, an Oklahoma Corporation and George

Carder, d/b/a George Carder Plumbing Company, Defendants-Appellees,

Canteen Corporation of Oklahoma, an Oklahoma Corporation,

Defendant-Appellant.

Kenneth David BOYLES and Debra L. Boyles, husband and wife, Plaintiffs- Appellees, v. OKLAHOMA NATURAL GAS COMPANY, a Foreign Corporation;

Accurate Fire Equipment Company, an Oklahoma Corporation;

Jay Leasing Company, an Oklahoma Corporation and Canteen

Corporation of Oklahoma, an Oklahoma Corporation,

Defendants- Appellees,

George Carder d/b/a George Carder Plumbing Company,

Defendant-Appellant.

Nos. 52220, 52249.

Supreme Court of Oklahoma.

Nov. 4, 1980.

Appeal from District Court, Tulsa County; Wm. M. Means, Judge.

Action in negligent tort against four defendants to recover damages for injuries caused by a gas explosion. The trial court sustained one defendant's demurrer to plaintiff's evidence and there was a jury verdict against the remaining three defendants, two of whom bring separate appeals. Appeals consolidated and judgment

AFFIRMED.

Whitten, McDaniel, Osmond, Goree & Davies by Dale F. McDaniel, Tulsa, for appellant Canteen Corp.

Gibbon, Gladd, Clark, Taylor & Smith by Richard D. Gibbon and Brad Smith, Tulsa, for appellant George Carder, d/b/a George Carder Plumbing Co.

Parks & Beard by Michael J. Beard, Tulsa, for appellees Kenneth David Boyles and Debra L. Boyles.

Pierce, Couch, Hendrickson, Johnston & Baysinger by D. C. Johnston, Jr. and Calvin W. Hendrickson, Oklahoma City, for appellee Oklahoma Natural Gas Co. OPALA, Justice:

The issues presented by these appeals are: (1) Did the trial court err in sustaining Oklahoma Natural Gas Company's (ONG) demurrer to plaintiff's evidence? (2) Did the trial court err in refusing to instruct the jury that it apportion liability among the defendants in proportion to the percentage of causal negligence it finds attributable to each? (3) Was it error to instruct the jury on defendant's violation of a local municipal ordinance? (4) Did refusal of a requested jury instruction that liability cannot be supported by one inference placed upon another constitute reversible error? (5) Did the trial court err in allowing testimony of a city mechanical inspector as to certain custom and usage in the trade? (6) Is the jury's verdict tainted by an inconsistency in finding both the building owner and its contractor-plumber negligent?

We hold that: (1) ONG's demurrer was properly sustained; (2) there was no error in refusing to instruct the jury to apportion the several defendants' liability; (3) the jury instruction with respect to the ordinance was free from error; (4) the refusal to submit the requested instruction was not prejudicial and reversible error; (5) specific allegation of custom was not a necessary predicate for the admitted testimony as to certain trade practice; and (6) the jury verdict is not inconsistent since there was evidentiary basis upon which the jury could find both codefendants-owner and plumber-negligent by reason of separate acts.

A passerby (Plaintiff) was injured in an explosion which leveled a building owned by Canteen Corporation (Owner), one of four codefendants. The building had been occupied as a restaurant. It was equipped with a "fire suppression system". The device, attached to the structure's gas pipes directly above the cooking equipment, functioned in conjunction with a gas valve that, in the event of a fire, would automatically shut off the gas.

Owner engaged Accurate Fire Equipment Company (Accurate), another codefendant, to install three identical fire suppression systems at a different location. The system that was in place in the vacant restaurant was to be dismantled and used as one of the three to be installed. An employee of Accurate, who had removed the fire suppression system, did not take out the automatic gas valve which was a part of it. Later, when other employees of Accurate were waiting to begin installation of the system at the new location, they were instructed to "pick up" the missing gas valve from the vacant building. They then removed the valve. In the process they left uncapped the gas pipe they had cut for this purpose. Several months later, during the winter, water froze in the vacant building and its pipes burst. The Owner engaged Carder Plumbing Company (Carder), a third codefendant, to restore heat and prevent refreezing. One of Carder's plumbers turned on the gas into the building and within an hour an explosion occurred in which plaintiff was injured. Plaintiff ¹ brought suit against the Owner, ONG, Carder and Accurate to recover damages for injuries sustained in the gas explosion alleged to have been caused by defendants' negligence. The trial court sustained ONG's demurrer to plaintiff's evidence and a jury verdict found against the remaining three defendants. Accurate did not appeal. Owner and Carder brought separate appeals which stand consolidated for decision.

I.

ERROR IN SUSTAINING ONG'S DEMURRER TO PLAINTIFF'S EVIDENCE

Carder and Owner contend that ONG's demurrer to the plaintiff's evidence was improperly sustained. ² We disagree.

A demurrer is sustainable when there is an entire absence of proof to show any right to recovery. ³ When proof is tested by a demurrer the trial court must view as true all evidence, together with all reasonable inferences from it, which is favorable to the non-demurring party. It is its duty to disregard evidence favorable to the party who is demurring. ⁴ The plaintiff's evidence showed no duty on the part of ONG to remove the gas meter or shut off gas service to the vacant building. The malfunction of the gas meter went to show improper calibration and faulty measurement of the gas passing through the meter rather than any increase in the amount of gas actually entering the building. Hence, the state of disrepair of ONG's meter had no causal nexus with the accumulation of gas or with the explosion. Finally, ONG's failure to odorize the gas rests on a bare allegation without facts to support it. There was no evidence from which the trial court would have been justified in inferring lack of ONG's due care either by acts of commission or omission.

II.

ERROR IN JURY'S FAILURE TO ASSESS PERCENTAGE OF NEGLIGENCE

ATTRIBUTABLE TO EACH DEFENDANT

The Owner and Carder assert error in trial court's refusal to instruct the jury separately to assess against each of the defendants the percentage of negligence found attributable to each. Both the Owner and Carder argue that Laubach v. Morgan ⁵ should have been applied here to the multiple tortfeasors in a negligence action. If apposite, Laubach would require that the negligence of each party be separately assessed.

Laubach was a comparative negligence case, within the meaning of 23 O.S.Supp.1978 § 11, ⁶ in which the plaintiff was found partially at fault in producing his injury. Here, we are concerned not with comparative negligence, but rather with an admittedly blame-free plaintiff seeking recovery from multiple tortfeasors whose negligence is said to have "concurred, commingled and combined" to produce the harm.

The common-law negligence liability concept may be described as "all or nothing" to the plaintiff. If he be blame-free "all" is due him; if he be at fault, however slightly, "nothing" is his due. The statutory comparative negligence approach allows the victim at fault to secure some, but not all, of his damages. The raison d' etre and rationale of comparative negligence are tied, hand-and-foot, to the narrow parameters of a blameworthy plaintiff's claim. ⁷ We hold that neither the rationale nor the holding of Laubach applies to that class of negligence litigation in which the plaintiff is not one among several negligent co-actors.

Several liability, fashioned in Laubach, was held applicable in a comparative negligence context where the plaintiff was found to be one of several negligent co-actors. There is absolutely nothing in Laubach to negate the continued force of the common-law rule of joint and several liability in those negligent torts which fall completely outside the purview of our comparative negligence legislation. ⁸ Although some of the language in Laubach appears sweeping at first blush, ⁹ it is to be viewed as limited to cases in which the trier is called upon to compare between the plaintiff's want of care on the one hand, and that of one or more defendants on the other hand. Several reasons militate in favor of this conclusion. No foundation exists for extending Laubach's proportionate-fault-assessment doctrine to multiple negligent tortfeasors in all cases. The states which have abrogated joint and several liability have done so-if at all-only within the context of comparative negligence and quite limitedly at that. ¹⁰ Absent an express legislative abrogation, no jurisdiction has found it necessary completely to abolish the common-law liability rule. Except as modified in Laubach for comparative negligence cases, the common-law rule of joint and several tortfeasors' liability remained unaltered and in force when the claim here under review arose and at the time it came for adjudication. ¹¹ That rule casts-not on the blameless victim-but on each of the legally vanquished wrongdoers the risk of an insolvent tortfeasor. Because of the recognized difficulty in apportioning fault in most instances, the common-law rule allocates liability as an integrity. In so doing it strives to afford an injured plaintiff full and just satisfaction of the adjudged obligation. ¹²

In the instant case there was but a single injury. Implicit in the jury's verdict is its finding that the separate and independent acts of negligence on the part of the codefendants concurred and...