Holt v. Myers

• Decision Date: 17 April 1973
• Docket Number: No. 34549,34549
• Court: Missouri Court of Appeals
• Parties: Ivan Lee HOLT, Jr., et al., Plaintiffs-Appellants, v. Russell MYERS and Marshall Black, d/b/a Myers & Black Contracting Co., Defendants-Respondents. . Louis District, Division Two

Page 430

494 S.W.2d 430

Ivan Lee HOLT, Jr., et al., Plaintiffs-Appellants, v. Russell MYERS and Marshall Black, d/b/a Myers & Black Contracting Co., Defendants-Respondents.

No. 34549.

Missouri Court of Appeals, St. Louis District, Division Two.

April 17, 1973.

Niedner, Moerschel, Nack & Ahlheim, St. Charles, for plaintiffs-appellants.

Carstarphen, Harvey & Wasinger, Marion F. Wasinger, Hannibal, McIlroy & Millan, John M. McIlroy, Bowling Green, for defendants-respondents.

KELLY, Judge.

In this appeal from a judgment for the defendants in a suit for both personal injuries and property damages the plaintiffs, Ivan Lee Holt, Jr., Mary E. Holt and the American Insurance Company of New Jersey, sought damages in a total amount of $99,500.00, arising out of an explosion and fire which destroyed a farm home in Pike County, Missouri, on the night of June 16, 1968. After a jury trial and a verdict for the defendants, the trial court entered judgment in accord with the jury verdict, a timely motion for new trial was filed, denied and notice of appeal followed.

On appeal the plaintiffs contend: first, the trial court erred in not declaring a mistrial when defendant Myers testified concerning the number of members in his family, and the second and third contentions are directed against a contributory negligence instruction submitted to the trial court by the defendants and read to the jury, Instruction No. 6.

The defendants contend that the evidentiary matter complained of was not erroneously admitted, but was invited by evidence offered by the plaintiffs, and the contributory negligence instruction was proper. They further take the position, 1) that the Holts were not the real party in interest in Count I of the petition, and the trial court should therefore have directed a verdict for the defendants at the close of the plaintiff's evidence and also at the close of all the evidence; 2) that the plaintiffs are barred from recovery against the defendants and the trial court should have directed a verdict in their favor because the plaintiffs' damages were produced by an intervening cause; and 3) the Holts were guilty of contributory negligence as a matter of law.

The facts are that the Holts owned a home on a ten (10) acre farm in Pike County, Missouri, which they had purchased in March, 1968, for a total price of $25,000.00. The house was an old house, originally built in 1859, and was in need of repairs and remodeling. Plaintiff American can Insurance Company of New Jersey (hereinafter referred to as the 'insurance company') on the 2nd day of March, 1968, by endorsement on a Homeowners Policy already issued to the Holts, undertook to insure the dwelling for $25,000.00, the appurtenant private structures for $2,500.00, the unscheduled personal property for $12,500.00 against loss by fire and other perils and $5,000.00 for additional living expenses.

After making the purchase the Holts contracted with the defendants, a partnership engaged in the general contracting business in the area, to remodel the house. The bulk of the remodeling was concerned with the exterior of the two-story house, although the contract did call for some interior repairs also. During the course of the remodeling the Holts and their son and daughter-in-law spent some time on the premises, more particularly on week-ends, and the Holts had moved may of their personal furnishings into the house.

By early June, 1968, the defendants had substantially completed most of the work called for in their contract and among the last items to be completed was the removal of a gas space heater from the hearth in front of a fireplace in a room on the first floor of the house referred to as 'the library.' The house had no central heating, and the Holts wanted the fireplace in the 'library' reconverted into a wood-burning fireplace. To do this required the removal of the gas space heater, the knocking out of the bricked-in fireplace opening and installation of fire brick within the fireplace proper.

On June 8, or 9, 1968, while defendant Myers was on the premises, Mr. Holt instructed him that he wanted the space heater and fireplace work completed between that day and the 21st day of June, 1968, because that was when Mr. Holt would be commencing his vacation. Mr. Holt also told Mr. Myers that the Holts would not be at the farm the following week-end, because Mr. Holt, who is a judge of the Circuit Court of the City of St. Louis, would be attending a Judicial Conference in Springfield, Missouri, that week. Mr. Myers also testified that he was told by Mr. Holt that no one would be at the house the week-end of June 14--16, 1968. ¹ On Wednesday, June 12, 1968, Mr. Holt called Mr. Myers and asked if he had started work on the fireplace. Mr. Myers told Mr. Holt that he would get to it. Mr. Holt then again told him that they were going to be gone and nobody would be at the farm that week-end. On the 13th day of June, 1968, Mr. Holt wrote to Mr. Myers advising him that the Holts would be at the farm on the 21st or 22nd (of June) to stay for several weeks and that Mr. Myers could cone by at his convenience after that for them to finish 'settling up.' Mr. Holt stated in this letter that he was counting on everything being done by then.

When the Holts purchased the farm and the house, there was a 1000 gallon propane gas tank situated to the rear of the house, some little distance from the house proper, which had been piped into the house for gas service. Subsequently they had a new hot water heater and gas stove installed, in addition to the space heater, by a contractor other than the defendants. The water heater was installed on the first floor in the 'back hall.' The gas from the tank in the yard was distributed to the other gas operated appliances through copper tubing connected in the basement to a line from the gas tank.

The water system came from a 'vein well' on the farm a little distance to the cast of the house, and water was pumped into a cistern beside the back porch. A shallow well pump situated in the basement of the house brought the water from the cistern and into the water pipes within the house. This pump was controlled by a small pressure tank and when the water pressure fell below a certain pressure the pump would be activated electrically.

On Friday, June 14, 1968, Mr. Myers, accompanied by his 14 year old son, went to the farm to remove the space heater from the hearth in the 'library.' He went to the propance gas tank in the yard prior to commencing disconnection of the space heater and turned off the gas valve there. He then checked the gas stove in the kitchen to confirm that the gas was shut off, and after smelling around the space heater and lighting a match to reassure himself that the gas supply had been shut off and no gas was coming to the appliance, he proceeded to remove it. He also disconnected the copper tubing which conveyed the gas to the space heater, removed it from a hole in the floor of the hearth and disconnected it from a 'tee' connection in the basement. With the assistance of his son he removed the space heater and copper tubing from the house.

After this was accomplished Mr. Myers took an old galvanized cap from his tool box and put it over the end of the 'tee' connection to keep dust, dirt and bugs out of the gas line. This cap was not the proper type of cap to seal the 'tee' and he knew that if anyone turned the gas on at the tank gas would leak from the 'tee' connection. When this was done Mr. Myers commenced tearing the brick and stucco out of the fireplace. He worked until almost 4:30 p.m. when he quit for the day.

Sometime after Mr. Myers left the house, but that same day, the Holts' son and daughter-in-law arrived at the farm. They did not recall the exact time, but they had eaten supper and it was still light out. They took a walk around the premises and then shortly thereafter went to bed for the night. The following morning, Saturday, June 15, 1968, after arising the young Holts attempted to prepare breakfast on the gas stove in the kitchen. When the gas stove was turned on it would not light. Lee Holt, the son, looked around the house and discovered that the space heater had been removed from the 'library' and he assumed that whoever had removed it had forgotten to turn the gas back on. He then went to the gas tank in the yard where he found that the valve on the tank was closed. He turned the valve so that the gas would be released into the gas lines and returned to the house. He saw no signs or notices anywhere warning that the gas should not be turned on.

After returning to the house Lee Holt lit the pilot in the stove and in the water heater and then started cooking breakfast. The flame of the stove flickered--'it didn't seem to be a strong flame.' Although the gas stove was not operating normally they did manage to cook breakfast on the stove. They remained at the farm until Sunday afternoon but they did not use the gas stove anymore, cooking their meals on a barbecue grille in the yard. They had hot water all week-end and at no time while they were in the house or around the premises did either of them smell gas. When they left the farm the gas valve was not turned off at the tank.

The evidence was that propance gas is heavier than air and would displace air and spread out over the basement seeking the lowest level of the basement floor if it escaped.

On Sunday evening, June 16, 1968, the Holts arrived at the farm sometime after the young Holts had left but with no knowledge whether the young Holts had or had not been on the premises. When they entered the house by the rear door Mrs. Holt told Mr. Holt that she smelled gas. He did not; but he told her that he thought it came from where the space heater had been removed and was residue in the gas pipes. He did not further investigate the source of the smell and his statement satisfied Mrs. Holt. They then started to prepare supper on the...