Foster v. The Capital Gas and Electric Company and The City of Topeka

• Decision Date: 10 March 1928
• Docket Number: 27,972
• Citation: 125 Kan. 574,265 P. 81
• Parties: FAY FOSTER et al., Appellees, v. THE CAPITAL GAS AND ELECTRIC COMPANY and THE CITY OF TOPEKA, Appellants
• Court: Kansas Supreme Court

265 P. 81

125 Kan. 574

FAY FOSTER et al., Appellees, v. THE CAPITAL GAS AND ELECTRIC COMPANY and THE CITY OF TOPEKA, Appellants

No. 27,972

Supreme Court of Kansas

March 10, 1928

Decided January, 1928

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. GAS--Explosion from Negligent Laying of Sewer and Gas Pipes--Parties--Evidence--Findings. In an action for damages for the destruction of a house caused by an explosion of gas, alleged to have occurred through negligence in the laying of sewer and gas pipes, the proceedings considered, and held: (a) The plaintiffs were the real parties in interest and entitled to recover on account of the negligence of the defendant gas company; (b) the finding of negligence by the jury of matters not alleged in the petition did not vitiate other findings based upon allegations and evidence; (c) there was evidence to sustain the findings which, when properly reconciled, were consistent and support the general verdict.

2. SAME--Instructions. The instructions as they apply to the issues between the plaintiff and defendant gas company considered and held to have fairly stated the issues.

3. MUNICIPAL CORPORATIONS -- Governmental Functions -- Liability for Negligence of Agents. A municipality ordinarily is not liable for negligence of its agents or employees when engaged in the performance of governmental functions.

4 SAME--Governmental Functions--Construction and Maintenance of Sewer. The construction and maintenance of a sewer ordinarily is a governmental function as distinguished from ministerial or proprietary.

Fred S. Jackson, H. A. Russell, both of Topeka, and Robert D. Garver, of Kansas City, Mo., for appellant The Capital Gas and Electric Company; J. E. Addington, Robert Stone, George T. McDermott, Robert L. Webb, Ralph T. O'Neill and Beryl R. Johnson, all of Topeka, for appellant The City of Topeka.

W. Glenn Hamilton, of Topeka, for the appellees.

Hopkins, J. Harvey, J., concurs in affirming the judgment as to the gas company and in reversing it as to the city, but dissents from the doctrine stated in the fourth paragraph of the syllabus, and the application made of it in the opinion.

OPINION

HOPKINS, J.:

The action was one to recover damages for destruction of plaintiff's house caused by an explosion of gas alleged to have occurred through the negligence of the defendants in the laying of sewer and gas mains.

On December 25, 1925, an explosion occurred in what was known as the Flora house, near plaintiff's property on the west. The defendant gas company owned and maintained a gas main of four-inch cast-iron pipe on Grand avenue, a street running north and south on the west side of the property where the explosion occurred. The main turned east on Kenilworth court and extended to connect with the general distributing system of the city of Topeka. These gas mains were constructed in April, 1925. In July following the city began the construction of a sewer on Grand avenue, paralleling the gas main on that street from Kenilworth court south. At the corner of Kenilworth court, the sewer was located approximately two feet west of the gas main, which distance increased to approximately three feet and five inches at a point opposite the Flora house. The gas mains were laid at a depth of from three and one-half to four feet, the sewer ten feet deeper. While the city was excavating at Grand avenue and Kenilworth court July 21, a heavy rain caused the ditch to cave in exposing the gas main for a number of feet on both Grand avenue and Kenilworth court and caused the main to break. The break was repaired and props placed under it for support. After the city had completed its sewer and refilled the ditch a test was made September 4. At the time the city refilled the sewer ditch no water was available for settling purposes and the filling was done by throwing loose dry dirt in the ditch without tamping. Six weeks thereafter, water was accessible and the ditch was flooded, as a result of which it settled as much as five or six feet in some places and the banks caved in. After the explosion December 25, the gas mains were uncovered and it was found that a four-inch cast-iron main on the west of the Flora residence was broken in two at the place where the service pipe to the Flora residence was connected, the break being caused by the main sagging to the north and south of the point held rigid by the service-pipe connection.

The jury, in addition to a general verdict for plaintiffs against both defendants, answered special questions as follows:

"1. If you find for the plaintiffs and against the city of Topeka, state fully what negligent act or acts you find had been committed by the city and who committed them. A. The city failed to stop the gas leak and remove the danger after the gas company had failed to do so, and both the city and gas company knew that a dangerous condition existed there, owing to the condition of the soil. (2d.) Both parties failed to see that the gas main was properly supported after July break. Those guilty were gas company, Mr. Harrington, Mr. Baldry and Mr. Stratton.

"2. If you find the defendant gas company was negligent, state fully what negligent act or acts you find to have been committed by the gas company. A. (1st.) Failure to furnish city with plat of main laid. (2d.) Failure to properly install main. Trench not evenly dug. Not properly supported. Too much rigidity. (3d.) Improper protection to break in main in July. (4th.) Failure to have inspector on job during sewer construction. (5th.) Insufficient testing of main under existing circumstances and conditions. (6th.) Failure or improper workmanship in cementing hole in basement wall where gas pipe entered.

"3. Did the city of Topeka, in its sewer work, undermine the main of the defendant gas company? A. No.

"4. Was the break in the gas main, from which the gas escaped, caused by the caving in or settling of the sewer ditch? Answer fully. A. Primarily caused by the cave-in of July, and subsequently caused by further settling."

On motion and further instructions, the jury returned the following additional answers:

"1. Answers to question No. 1: (a) Commissioner Hancock, after notifying gas company that odor of gas was detected between September 4 and December 25, failed to see that gas company had taken care of it, and failed to see that the city, through his department, took care of it. (b) The dangerous condition was that gas was permeating the soil in the vicinity of the Flora house. The soil was not firmly settled around gas service pipe and connection.

"2. Answers to question No. 2: (a) Bottom of gas trench was uneven on account it was leveled by eye. Gas main was leveled by bricks, some places using more bricks than others. Supports not in proportion to weight of pipe, causing sinking of supports. (b) If hole was cemented, the party doing the work did not force cement into hole sufficient to hold.

"3. Answer to question No. 4: By further settling is meant further settling of gas main at point on Kenilworth court at Grand avenue where cave-in occurred in July. Settling was due to improper supports placed under gas main at time of repair, which later gave way, causing stress on gas main toward the Flora house."

It is contended by the gas company that the plaintiffs cannot recover because they are not the real parties in interest. It appears that plaintiffs were purchasing the property in question from L. F. Garlinghouse on an installment contract; that they had paid approximately $ 600, leaving a balance due of about $ 3,500. The home having been destroyed, the plaintiffs could no longer make payments to Garlinghouse. They thereupon entered into a new contract with Garlinghouse whereby they were relieved from further liability on the old one upon payment by them to Garlinghouse of the sum of $ 3,500 when it was recovered from those liable for the explosion. It is argued that this was such an annulment of the original contract of purchase that the plaintiffs cannot recover. It is conceded that the tort is not assignable, for which reason Garlinghouse cannot recover. The defendant cites and relies upon the rule stated that where a contract for the sale of land is rescinded by mutual consent, the rights of the parties thereunder are extinguished. (39 Cyc. 1355, 1358.) We think the rule has no application here. A cause of action existed between the plaintiffs and Garlinghouse in which the defendants were in no way interested. It was entirely separate and distinct from the cause of action which arose in favor of the plaintiffs through destruction of their property by negligence of the defendants. The supplemental agreement between the plaintiffs and Garlinghouse constituted no satisfaction or release of defendant's liability. The contention cannot be sustained. (See St. L. L. & D. Rld. Co. v. Wilder, 17 Kan. 239; Garrett v. Beers, 97 Kan. 255, 155 P. 2; Davis v. Sim, 100 Kan. 66, 163 P. 622.)

It is contended that some of the special findings of the jury were based upon negligence not alleged in plaintiff's petition, the effect being to acquit the defendant of the negligence actually charged. While there were findings of negligence by the jury not covered by the allegations of the petition, they were not relied upon by the plaintiffs. The findings of additional negligence were not inconsistent with others supported by proper allegations and do not relieve defendant of its liability. It frequently happens that more than one act of negligence contributes to and is a proximate cause of the injury. It is not necessary that the negligence pleaded be the sole proximate cause. (Pinson v Young, 100 Kan. 452, 164...