Haddad v. Louisville Gas & Elec. Co.

• Decision Date: 31 October 1969
• Citation: 449 S.W.2d 916
• Parties: Frank E. HADDAD, Jr., et al., Appellants, v. LOUISVILLE GAS & ELECTRIC COMPANY et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 916

449 S.W.2d 916

Frank E. HADDAD, Jr., et al., Appellants, v. LOUISVILLE GAS & ELECTRIC COMPANY et al., Appellees.

Court of Appeals of Kentucky.

Oct. 31, 1969.

As Modified on Rehearing Feb. 6, 1970.

Freeman B. Blackwell, Harris J. Berman, Robert A. Kohn, Louisville, for appellants.

O. Grant Bruton, Gerald Kirven, Miles R. Thacker, Louisville, for appellees.

DAVIS, Commissioner.

Appellants prosecuted actions for the alleged wrongful deaths of William Lindsey and William Forbes against Louisville Gas & Electric Company and Ruth Wathen. At the conclusion of all the evidence, the trial court directed a verdict in favor of Louisville Gas & Electric Company, but because of default in answering by Ruth Wathen, it directed the jury to assess damages on each claim against Ruth Wathen. Pursuant to the verdict, judgment went against Ruth Wathen in favor of the Forbes estate in the sum of $51,317 and for $6,137 in behalf of the Lindsey estate. The personal representatives of the decedents prosecute the original appeal contending that the court erred in directing a verdict in favor of L G & E. Ruth Wathen brings her cross-appeal seeking reversal of the judgments against her.

Ruth Wathen owned a one-story frame residence on Parthenia Avenue in Louisville. On December 30, 1964, Ruth's son, Roy Wathen, visited his mother's home and found her and Lindsey in a semiconscious and incoherent state. Roy took his mother to Sts. Mary & Elizabeth Hospital and telephoned for the police to attend to Lindsey. Lindsey was admitted to the Louisville General Hospital that same day. The records of General Hospital indicate that Lindsey's condition was diagnosed as toxic encephalopathy, etiology unknown. The physicians who treated him at General Hospital were unable to determine what toxic agent caused his condition.

Five or six days after Ruth Wathen entered the hospital, she was discharged, and Roy took her back to her home. Roy related that shortly after he left his mother at home 'she fell out again. A neighbor called me and I went back over and took her back to the hospital.' He related that his mother was again in a semiconscious condition when he found her the second time. Roy said that he called his mother's doctor who was still uncertain as to the source of her trouble, but who suggested that Roy should have an inspection of a gas floor furnace which served the premises. Roy then called L G & E, the supplier of the natural gas burned in the furnace. L G & E sent its 'trouble man,' Raymer, to investigate. The records of L G & E reflect that the call for Raymer was received at 8:05 a.m. on January 6, 1965, and Raymer reached the Wathen residence at 8:35 a.m. that day, where he met Roy Wathen who was with Raymer during Raymer's investigation of the furnace and other gas appliances in the house. Roy said that he 'probably' told Raymer that two people had been 'overcome with gas or something' and that he had been advised by the doctor to have the house checked. It was Raymer's recollection that Roy had told him about his mother's having been made ill, but he could not remember Roy's mentioning Lindsey's experience. At any rate, Raymer's investigation disclosed that the vent pipe serving the furnace was not functioning properly. He noted abnormal gas fumes coming up from the furnace and recognized that the furnace, as improperly vented, was a hazardous and highly dangerous thing. He also noted some abnormal fumes emanating from a gas water heater but did not regard that situation as critical. Raymer said that he had no equipment with him whereby he could accurately gauge whether the fumes contained carbon monoxide, but he expressed his opinion that they did. Raymer told Roy Wathen of the dangerous condition and advised him to have the furnace repaired. He said that Wathen assured him that no one would occupy the residence until Wathen had been able to have the necessary repairs performed.

The furnace was equipped with a three-way control valve permitting (1) the pilot and main burner to be shut off, (2) the pilot only to operate, and (3) the pilot and main burner to operate. There was a thermostat serving the furnace which was designed to control the operation of the main burner. Raymer testified that he left the furnace in 'on pilot position' and that the main burner was off and 'could not come back on regardless of the thermostat setting.'

On January 7, 1965, about 6 p.m., Roy Wathen went to his mother's residence with Carl Thomas, a service man, with a view to having the furnace repaired. Roy and Thomas discovered the dead bodies of Lindsey and Forbes when they entered the residence. A deputy coroner investigated the matter and determined that both men had died from carbon-monoxide poisoning, and carbon monoxide was coming from the floor furnace. Postmortem tests reflected carbon-monoxide saturation of 36% as to Lindsey and 61% as to Forbes. At the time the bodies were discovered, the thermostat on the floor furnace was set for maximum heat. A wine bottle and a whiskey bottle were found near the bodies. The facing was knocked off the back door. Both Roy Wathen and Raymer testified that the front and back doors were locked when they left the premises on January 6. The clear inference discernible from Wathen's testimony is that entrance was gained to the house by breaking the back door.

It is not clear from the record whether the main burner of the floor furnace was in an operable condition when Roy Wathen returned with Carl Thomas, but it is clear that carbon monoxide in fatally dangerous quantity was coming from the floor furnace. Throughout the trial and in its brief here, L G & E has insisted that it had neither the duty nor the authority to turn off the floor furnace, even though its representative found that appliance to be emitting highly dangerous carbon-monoxide fumes.

The trial court entered findings of fact and conclusions of law. The conclusions of law noted by the trial court were:

(1) The only duty owed by L G & E was to protect the public against injury or damage arising from leaks or other defects in its lines, or leaks of which it had notice in its customer's lines. (Citing Holsclaw's Adm'r v. L G & E Co., 267 Ky. 56, 100 S.W.2d 805.)

(2) L G & E did not voluntarily assume to repair the vent condition, and therefore no duty can attach to it by implication. (...