Hanson v. City Light & Traction Co.

• Decision Date: 10 January 1944
• Citation: 178 S.W.2d 804,238 Mo.App. 182
• Parties: Blanche Hanson, Respondent, v. City Light & Traction Co., Appellant
• Court: Kansas Court of Appeals

178 S.W.2d 804

238 Mo.App. 182

Blanche Hanson, Respondent, v. City Light & Traction Co., Appellant

Court of Appeals of Missouri, Kansas City

January 10, 1944

Appeal from Benton Circuit Court; Hon. Dewey Thatch, Judge.

Affirmed.

Frank M. Brady and Lamm & Barnett for appellant.

(1) A general charge of negligence is good against the objection that no cause of action is stated and the proper manner to attack the amended petition charging general negligence was by motion to have the amended petition made more definite and certain by pleading specific negligence, and, where res ipsa loquitur doctrine does not apply, such motion should have been sustained and plaintiff required to specify the negligence. Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654, 657, 658, and cases cited. (2) Even if it be held that after the motion to make more definite and certain was overruled, plaintiff under her amended petition alleging general negligence could admit evidence of specific negligence, and open T (which was alleged in the original petition which was abandoned), it is the rule that even in a case which might otherwise be submitted under the res ipsa loquitur doctrine, if the plaintiff's evidence discloses specific negligence the case cannot thereafter be submitted to the jury upon general negligence or the res ipsa doctrine. Palmer v. Brooks et al. (Mo.), 169 S.W.2d 906, 909; Conduitt v. Trenton Gas & Elec. Co. (Mo.), 31 S.W.2d 21, 24, 25; Watts v. Moussette (Mo.), 85 S.W.2d 487 491; Philibert v. Benj. Ansehl Co. (Mo.), 119 S.W.2d 797, 802. (3) There is a distinct and recognized difference between the responsibility of a gas company for leaks in its own property (street mains and meters) and leaks in a plaintiff's house system (pipes in house from meter and house appliances). The adjudicated cases in Missouri and elsewhere uniformly recognize this difference, which the trial court failed to recognize. Freegar v. Consumers Power Co., 262 Mich. 537, 247 N.W. 741; Lewis v. So Cal. Gas Co., 92 Cal.App. 670, 268 P. 930; Loss v. Mt. Fuel Sup. Co., 99 Utah 496, 108 P.2d 254; Okmulgee Gas Co. v. Kelly, 105 Okla. 189, 232 P. 428; Bell v. Huntington Dev. and Gas Co., 106 W.Va. 155, 145 S.E. 165. There was no explosion in this case, but even where an actual explosion of natural gas occurs on a customer's premises, it is settled law that there must be sufficient evidence to sustain the jury finding that the escape of gas causing the explosion was due to some negligent act of the gas company or that it escaped from some instrumentality entirely within the control of the gas company. Wall v. K. C. Gas Co. (Mo. App.), 235 S.W. 161, 162; Raftery v. K. C. Gas Co. (Mo. App.), 169 S.W.2d 105, 109, 110; Agsten & Sons v. United Fuel Gas Co., 117 W.Va. 515, 186 S.E. 126; A. and J., Inc., v. So. Cities Dist. Co., 173 La. 1051, 139 So. 447; Conway v. Phila. Gas Works Co., 336 Pa. 11, 7 A.2d 326; Missouri cases cited under Points (4) and (5). (4) Missouri courts early adopted (and have since followed) said majority rule and hold that (with the exception of its meters in a house over which a gas company maintains control) a gas company ordinarily is not responsible for the condition of gas pipes and appliances on private property. Chouteau v. St. Louis Gas Light Co., 47 Mo.App. 326, 329; Laclede Gas Light Co. v. Gas Consumers Assn., 127 Mo.App. 442. (5) Under the rules aforesaid and the facts in the case at bar showing manipulation by persons other than defendant during the time in question, res ipsa loquitur is not applicable and it was absolutely essential to prove negligence on the part of defendant and a causal relationship between some negligence and the alleged injuries. This plaintiff failed to do. Brown v. St. L. Co. Gas Co. (Mo. App.), 131 S.W.2d 354, 358, 359, 360; Gibbs v. Gen. Motors Corp. (Mo.), 166 S.W.2d 575, 579, 580, 581; Taylor v. Mo. Nat. Gas Co. (Mo. App.), 67 S.W.2d 107; Streck v. St. L. Co. Gas Co. (Mo. App.), 58 S.W.2d 487; Nomath Hotel Co. v. K. C. Gas Co., 204 Mo.App. 214, 223 S.W. 975, 253 S.W. 975; Rede v. St. L. Gas Co. (Mo. App.), 254 S.W. 415; Bonner v. Texas Co., 89 F.2d 291, 294; Tayer v. York Ice, etc., Corp., 119 S.W.2d 240, 244; Schaum v. Equitable Gas Lt. Co., 15 A.D. 74, 44 N.Y.S. 284. Whether a case is one depending on res ipsa or upon a charge of specific negligence, it is true that no case is made where the existence of negligence on the part of defendant is left to conjecture. Brown v. St. L. Co. Gas Co., 131 S.W.2d 354, 360. (6) This not being a carbon monoxide case under the pleadings and facts, the admission of extensive evidence concerning the effect of carbon monoxide was error because it is common knowledge that carbon monoxide gas is highly poisonous and lethal and such evidence was highly prejudicial, and the withdrawal instruction did not remove entirely from the minds of the jurors the basis for conjecture concerning the possibility that plaintiff had been injured by carbon monoxide. Mueller v. Weitz, 56 Mo.App. 36, 39; Natl. Cash Reg. Co. v. Kay (Mo. App.), 119 S.W.2d 437, 440; Meyer v. Lewis, 43 Mo.App. 417, 420 et seq.; 4 C. J., p. 990, par. 2973; Chenoweth v. Sutherland, 141 Mo.App. 272, 276, 277; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59, 67; Young v. St. Bank, 54 Tex. Civ. App. 206, 117 S.W. 476. (7) In the case at bar the plaintiff's evidence itself from qualified witnesses was stronger that plaintiff's complaints, conditions or illnesses were caused by gall bladder trouble and menopause than that they could have been caused by inhalation of natural gas, and plaintiff's evidence itself shows more than one means by which natural gas could have gotten in the house (all of defendant's evidence showed no natural gas in the house and that plaintiff's complaints were due to gall bladder trouble, menopause, etc.). Under these circumstances the rule applies that where plaintiff's injuries may have resulted from two or more causes, in order to hold defendant liable plaintiff must have substantial evidence tending to show that the cause for which defendant would be liable in the actual cause thereof, and plaintiff did not have substantial evidence, if any, to show (1) that defendant caused natural gas to get into the house and (2) that natural gas caused her illness and complaints. Raftery v. K. C. Gas Co. (Mo. App.), 169 S.W.2d 105, 109, 110; Cole v. Uhlmann Grain Co. (Mo.), 100 S.W.2d 311 and cases cited on p. 317; Snyder v. St. L., etc., Ry. Co. (Mo. App.), 72 S.W.2d 504, 511; Grindstaff v. J. Goldberg, etc., Co. (Mo.), 40 S.W.2d 702, 705; Collings v. Northwestern Hosp. (Minn.), 277 N.W. 910, 912.

Palmer & Palmer and George H. Miller for respondent.

(1) An allegation of general negligence having been filed on behalf of the plaintiff, and a motion to make more definite and certain being overruled, by thereafter going to trial on the merits, and after verdict and judgment, it is too late for defendant to complain of ruling on motion. State ex rel v. Trimble (Mo.), 18 S.W.2d 4; Grindstaff v. Goldbert & Sons (Mo.), 40 S.W.2d 702. (2) Plaintiff's amended petition, upon which the trial of the case was had, was based upon general negligence and even though the plaintiff offered evidence of specific acts of negligence, yet, if at the close of all the evidence the exact cause of the escape of gas was left in doubt, plaintiff was entitled to go to the jury on general negligence. Price v. Met. Street Ry. Co., 220 Mo. 435; Glasco Electric Co. v. Union Elec. L. & P. Co., 61 S.W.2d 955; Timmons v. Kurn et al. (Mo. App.), 100 S.W.2d 952; Brunig v. Pacific Gas & Electric Co. (Cal.), 35 P.2d 226. (3, 4) After the defendant company has notice that gas is escaping from the consumer's pipes or appliances, it is bound thereafter to use diligence in the discovery and repair of said leaks, and is liable if it fails so to do. Heller v. Equitable Gas Co., 333 Pa. 433, 3 A.2d 343; Julian v. Sinclair Oil & Gas Co., 168 Okla. 192, 32 P.2d 31; Fey v. Scranton Spring Brook Water Co., 40 Lack Jur. (Pa.) 137; Miller v. Wichita Gas Co., 139 Kans. 729, 33 P.2d 130; Scarborough v. Central Arizona Light & Power Co. (Ariz.), 117 P.2d 487; Miss. Power & Light Co. v. McCormick, 175 Miss. 337, 166 So. 534; Baker v. Kansas Power & Light Co., 146 Kan. 258, 69 P.2d 731. (5) In view of the facts of this case which show conclusively that defendant at all times, from November 20th to December 16, 1940, the period of time in which the escape of gas is complained of, the gas appliances, and all pipes through which gas was conducted and escaped into the house, were under the exclusive management and control of the defendant, and in view of the fact that the defendant was notified of the escape of gas and assumed the duties of locating and repairing the gas leaks, it was only necessary for the plaintiff to allege and prove general negligence. 38 Am. Jur., p. 954, par. 262; Bell v. Central Arizona Light & Pow. Co., 49 Ariz. 99, 64 P.2d 1249; House v. Wichita Gas Co. (Kan.), 20 P.2d 479; Miller v. Wichita Gas Co. (Kan.), 33 P.2d 130; Northeast States Utility Co. v. Brouilette (Wyo.), 65 P.2d 223; Roy v. Smith (Cal. App.), 25 P.2d 251; Cohen v. Consolidated Gas Co., 137 A.D. 213, 121 N.Y.S. 956; Hilson v. Pac. Gas & Elec. Co., 21 P.2d 662; Sutcliff v. Ft. Dodge, 257 N.W. 406; Atkinson v. Wichita Gas Co. (Kan.), 18 P.2d 127; Nonnamaker v. Kay County Gas Co. (Okla.), 253 P. 296; Heller v. Equitable Gas Co. (Pa.), 3 A.2d 343. (6) (a) Plaintiff's allegations that "gas and gas fumes" escaped through the negligence of defendant were sufficiently broad to admit any evidence of carbon monoxide. Amarillo Gas Co. v. Welch, 257 S.W. 291, 294; Lamar v. Iowa State Trav. Men's Assn., 249 N.W. 149; Birss v. Order of United Comm. Travelers, 190 N.W. 486; ...