Holloway v. Skelly Oil Co., 3561.
| Decision Date | 23 October 1946 |
| Docket Number | No. 3561.,3561. |
| Citation | 68 F. Supp. 129 |
| Parties | HOLLOWAY et al. v. SKELLY OIL CO. |
| Court | U.S. District Court — Western District of Missouri |
Ira B. Burns and Chet D. Vance, both of Kansas City, Mo., for plaintiff.
C. A. Randolph, of Kansas City, Mo., for defendant.
The nature of the motion requires an examination of an amended petition filed by plaintiffs. In substance, the plaintiffs aver that the defendant, being engaged in manufacturing and distributing a product known as "Skelgas," a highly inflammable and explosive agent, sold to them tanks or drums of said gas to be attached or connected with a distribution system in their residence, and particularly to the lower floor thereof. Prior to the damages alleged to have been sustained by them, said distribution system had leaked and the gas tanks previously supplied by the defendant had become empty. These circumstances caused the plaintiffs to notify the defendant of the leak and the escape of gas, and they accompanied said notice with the request, "that the defendant send their (its) mechanics or workmen to plaintiffs' house to discover and repair the leak or escape of gas into their house and to furnish them a new tank or supply of `Skelgas.'"
It is then averred by the plaintiffs that the defendant, acting upon said notice and request, "did send workmen and employees to their premises for the purpose of discovering and repairing the leak and to furish and connect a new tank of gas to plaintiffs' distribution system for use."
The inspection and repairs, it is alleged, were made on January 29, 1945. The leak was discovered and repaired by the defendant's mechanics and a new gas tank was furnished and connected by defendant. At that time, it is alleged, the plaintiffs were informed by the employees of the defendant, "that the said gas leak had been discovered and repaired and that the gas distribution system was now safe for use by the plaintiffs."
Plaintiffs aver that a fire "occurred about one hour after defendant's employees had overhauled said gas distribution system." There was an averment, "that no one had touched or interfered or in any way changed or altered any of the Skelgas distribution system after the defendant's employees had investigated same." There is a further averment that the distribution system was designed and installed by the defendant "in accordance with its own designs and plans and desires, and that the plaintiffs had nothing whatever to do with the installation or arrangement of said distribution system or gas tank." The complaint then asserts that damages from a fire accrued to the plaintiffs, in this, that "the plaintiffs' clothing, house and furniture was destroyed by fire originating within plaintiffs' house, because of the negligence of the defendant as hereinafter set out and that because thereof plaintiffs lost the said house of a reasonable value of $7,500.00 and all the furniture, furnishings, clothes, personal possessions and fixtures therein of a reasonable value of $6,000.00."
Plaintiffs inserted a paragraph in their complaint which undertook to set forth the deadly and dangerous character of the gas furnished by the defendant, and its duty to "exercise the degree of care commensurate with its deadly and dangerous character to discover and repair the leak or the cause for the escaping gas or to shut off the flow of gas and to warn the plaintiffs of the danger of using same."
By the 9th paragraph of the complaint the plaintiffs stated the negligence of which they complain as follows:
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