Davenport v. Bonner, 4 Div. 27

• Court: Supreme Court of Alabama
• Citation: 152 So.2d 678,275 Ala. 131
• Docket Number: 4 Div. 27
• Parties: Lena DAVENPORT v. Thomas R. BONNER et al.
• Decision Date: 04 April 1963

Page 678

152 So.2d 678 275 Ala. 131 Lena DAVENPORT
v.
Thomas R. BONNER et al. 4 Div. 27. Supreme Court of Alabama. April 4, 1963.
Rehearing Denied May 9, 1963.

[275 Ala. 132]

Page 679

Tipler & Fuller, Andalusia, for appellant.

Albert L. Rankin, J. M. Albritton, and Albrittons & Rankin, Andalusia, for appellee Benton.

Prestwood & Prestwood, Andalusia, for appellee Howard.

Abner R. Powell, J., Andalusia, for appellee Bonner.

GOODWYN, Justice.

Appeal by the plaintiff (Lena Davenport) from a judgment rendered on a jury verdict in favor of each defendant (Thomas R. Bonner, William R. Howard, and Eileen W. Benton, as administratrix of the estate of S. Grady Benton, deceased) after the giving of each defendant's requested affirmative charge with hypothesis.

The action was brought to recover damages for personal injuries allegedly caused by a gas explosion. The complaint, as last amended, charges that defendants, 'during the month of December, 1957, were engaged in the servicing, installation, removal, maintenance or operation of gas or gas appliances located in or near a residence or house on premises known as 123 Pecan Street in the City of Andalusia, Covington County, Alabama'; that they 'did so negligently conduct the said servicing, installation, removal, maintenance, or operation of said gas or gas appliances that said defendants * * * negligently caused or negligently allowed a violent explosion of gas on said premises on, to-wit, December 10, 1957, and as the proximate consequence of said negligence of the defendants * * * the Plaintiff, who was then and there upon said premises

Page 680

as an invitee of the tenant of defendant, Thomas Bonner, where she had a right to be, received severe personal injuries in this, to-wit:

[Catalogue of injuries]

* * * all as the proximate consequence of the negligence of the defendants. * * *'

The substance of the evidence may be stated as follows:

On December 10, 1957, the plaintiff, together with her sister, Mrs. James Meadows, and Mrs. Merle Webb, went to a house at 123 Pecan Street in Andalusia, Alabama, owned by defendant Bonner and [275 Ala. 133] rented to Rev. Henry Wester, for the purpose of cleaning it. They went there with Rev. Wester's knowledge and permission. Defendant Howard had previously rented the house from Bonner and Rev. Wester and his wife were planning to move in that night. These ladies were members of Rev. Wester's church. He told Mrs. Webb the gas had been turned on and that it was safe to go into the house. A child of Mrs. Meadows and two children of Mrs. Webb went along with them.

They arrived at the house with their cleaning equipment about 2:15 P.M. in two cars. When they first got out of their cars, plaintiff stated she believed she smelled gas. She testified she did not smell any gas inside the house. The other two ladies testified that they did not smell gas at this time or at any other time during the visit, and that the children showed no signs of smelling gas.

The ladies, with their children, went inside the house, through the living room and into the kitchen. They stopped in the kitchen, then went through the bedrooms and back into the living room. It was a very cold day and all of the windows were closed. The ladies had checked the three space heaters to see if they were all turned off. While Mrs. Meadows, Mrs. Webb, and their children went on the front porch, plaintiff struck a match to light a heater when an explosion occurred injuring her.

Mrs. Webb and Mrs. Meadows testified that they did not know exactly why they went to the porch; that they just happened to be there when the explosion occurred. Mrs. Meadows was holding the screen door open at the time of the explosion. These two ladies and their children were also injured.

Mr. H. J. Eddings, a gas fitter and an original defendant, but later stricken as a party by amendment, testified that, about 1955, he installed a 3/4 inch gas pipe in the house, about 30 or 40 feet long, going into the kitchen and sticking up through the floor a few inches near the wall. There was an underground butane gas tank outside the house, on which there was a cut-off valve above ground. When this valve was cut on, the gas would go from the tank to the appliances in the house without restriction, and if the end of the pipe in the kitchen was uncovered the gas would then run through the pipe into the kitchen. Eddings testified that he placed a cap on the pipe to restrain the flow of gas into the kitchen. He further testified that neither defendant Bonner nor anyone else asked him, on the day of the explosion, to go check the gas to see if it was safe to turn on. Plaintiff testified that she thought she remembered seeing this pipe and at the time remarked that that was where the washing machine should go.

Eddings testified that he knew about the gas which was in the tank on December 10, 1957, because he later converted the house to natural gas and the gas in the tank, about 160 gallons, 'had the same odor that everybody else's had'; that he smelled it and 'it smelled like a polecat.'

Mr. Douglas Franklin testified that he was next door when the explosion occurred; that he had been in the driveway next to the house about twenty minutes before the explosion but had not smelled any gas at that time nor at any other time. After the accident he went into the house and saw the gas pipe in the kitchen. The pipe had no cover on it.

Page 681

Defendant S. Grady Benton died before the trial, but his deposition was introduced in evidence. His wife was appointed administatrix of his estate and, as such, was substituted as a defendant.

Mr. Benton was the owner and operator of the Benton Gas and Appliance Company prior to the accident. He was qualified with the Alabama Liquefied Petroleum Gas Commission in 1957. His last delivery of gas to the house was on November 14, 1957, at which time he placed 200 gallons in the tank at the request of defendant Howard. Liquefied gas has no natural odor. As a safety precaution, an odorizing substance is [275 Ala. 134] placed in it. It was stipulated by the plaintiff and defendant Benton that there existed certain rules and regulations, adopted by the Alabama Liquefied Petroleum Gas Commission, requiring that 'all liquefied petroleum gas shall be effectively odorized by an approved agent of such character as to indicate positively, by distinct odor, the presence of gas down to concentration in air of not over one-fifth the lower limit of flammability.'

Benton testified that the refineries put the odor in the gas, that it is tested by government inspectors, that he personally inspected each lot of gas coming from the refineries, and that he knew this gas was odorized. He further testified that, with respect to the amount of gas required to do the damage to this house, the odor would be sufficient to warn anybody with any judgment at all.

Defendant Howard rented the house from defendant Bonner in July, 1957, and moved out on November 20, 1957. When Howard moved into the house, either the movers or a gas man installed his butane gas stove and made the connection with the gas pipe in the kitchen. When the stove was installed, Howard had a cut-off valve put on both the pipe and the stove. He had always used this cut-off valve and, on moving out in November, 1957, he took the stove and the cut-off valve with him.

Howard turned the gas off at the valve on the tank before moving the stove. After shutting off the gas in this manner, he bled the line by turning on the space heaters. He testified that, at this time, there was a very strong odor of gas and that the...