House v. Wichita Gas Co.
| Decision Date | 08 April 1933 |
| Docket Number | 31021. |
| Parties | HOUSE v. WICHITA GAS CO. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Gas company, selling and subsequently repairing regulating appliances for gas burner, must exercise great care to see that appliances are fit for purpose installed, and are in proper working condition.
Trial court and Supreme Court on appeal must, if possible harmonize inconsistencies in answers to special questions.
Where gas company, installing regulating appliances for gas burner gives instructions as to their use and operation, company must make instructions complete.
Whether regulating appliances installed by gas company for consumer were in proper condition held for jury, in action by consumer's wife for injuries sustained in explosion.
Whether gas company installing and repairing regulating appliances on gas burner for consumer exercised requisite degree of care held for jury, in action by consumer's wife for injuries sustained in explosion.
Contributory negligence of consumer's wife suing gas company, which installed regulating appliances on consumer's gas burner for injuries caused by gas explosion, when wife lighted match while gas was escaping from burner, held for jury.
1. Where a company, whose principal business is the distribution of natural gas for lighting and heating purposes, sells regulating appliances to be used in burning gas, and thereafter supervises and repairs the same, it is incumbent upon it to exercise great care that such appliances not only are fit and proper for the purpose for which they are installed, but that they are in proper working condition.
2. Where an installation of the above-mentioned appliances is made, and the company gives some instructions as to their use and operation, it is its duty to make the instructions complete enough to cover the various phases of operation.
3. If there is any inconsistency in answers to special questions it is the duty of the court to harmonize them, if possible.
Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.
Action by Jessie W. House against the Wichita Gas Company. Judgment for plaintiff, and defendant appeals.
A. M. Ebright and P. K. Smith, both of Wichita, and Robert D. Garver, of Kansas City, Mo., for appellant.
John W. Adams and O. A. Keach, both of Wichita, for appellee.
This was an action for damages growing out of the installation of heating equipment and regulating devices. The second amended petition on which the case was tried contained allegations that the defendant is a corporation doing business in the city of Wichita and operating a gas plant, selling and installing gas appliances and fixtures and distributing gas; that about October 1, 1925, it sold to plaintiff's husband and installed in their residence an appliance consisting of a burner, aquastat, motor valve, clock thermostat, gas piping, and electric work, for the purpose of furnishing heat to the house, knowing the purpose for which the same were to be used, and that they would be used and operated by the plaintiff; that the pipe and equipment were under the sole care and management of the defendant company; that on December 3, 1926, a large amount of gas had escaped from the furnace in a manner unknown to the plaintiff, and that when she lighted a match an explosion took place whereby she was injured; that during the months of November and December, 1925, and at various times during the months of January, February, and March, 1926, and up until shortly before the explosion occurred, plaintiff's husband had orally notified the defendant that the appliances were not working properly and were defective in some respects, and that there was gas escaping somewhere, but he was unable to ascertain where it was; that the defendant agreed to make an inspection, but failed to do so; that the defendant, knowing of the dangerous condition of said appliances, and being informed of the defect in the appliances and their condition, continued to furnish gas to be used therein, and to permit and allow the appliances to be used without inspecting or remedying the defects; that the plaintiff relied upon the appliances being fit and proper for the purpose for which they were installed, and that same would be maintained in a safe condition by the defendant; that the plaintiff is unable to state the particular defects in said appliances, except that the same were not in fit and proper condition for the purpose for which they were purchased, and for the further reason that immediately after the explosion they were wrongfully removed from the premises for the purpose of preventing the plaintiff and her husband from inspecting the same or allowing them to have inspection made of the same, and for that reason plaintiff is unable to make a more definite statement of the acts of negligence of the defendant company or the defects in the appliances that caused the explosion; that prior to the explosion the defendant negligently failed to make inspection of said appliances; that the appliances and equipment were highly complicated and dangerous instrumentalities owing to the purpose and use for which they were installed and used, and the defendant knew or should have known by the exercise of proper care and inspection that the installation and use would result in injury, and that it was the duty of the defendant to inspect the furnace and appliances to see that same were in proper repair; that the equipment and appliance were eminently dangerous and were at all times from the installation of the same in a defective condition, the material being defective and the same not properly installed, which was unknown to plaintiff, but should have been known and discovered by the defendant, and defendant owed plaintiff a duty to inspect the appliance, discover the defect, and prevent injury; and that the defendant was guilty of negligence in not inspecting the furnace and appliance prior to the explosion, after being notified so to do and promising plaintiff's husband that the appliance would be inspected; that the defendant was guilty of further negligence in that it had good reason to know that plaintiff would be compelled to operate the installed appliances in her household, knew that the plaintiff was unskilled and did not know how to operate said appliances without instructions, and failed and neglected to adequately and sufficiently instruct her with reference thereto, which it was the duty of the defendant to do. The petition also contained allegations as to the nature and extent of plaintiff's injuries. The defendant's verified amended answer consisted of a general denial and alleged that the appliances were installed by virtue of a written proposal executed by plaintiff as agent for her husband, a copy of which was attached to the answer, denied that any of its agents or employees had any authority to alter the terms of the written proposal or to supplement the same with any additional agreements, alleged that it furnished the material and performed the work provided in said proposal, and that no faulty workmanship or defective material in connection therewith was called to the attention of the defendant or reported to it within the six months' period following installation, or at any other time, and that it had fully performed all of its agreements. The answer further alleged that if the plaintiff was injured as alleged, the explosion was the result of negligent operation of the equipment by the plaintiff, and was not caused by any defects in the equipment itself; the negligence of plaintiff consisting in her attempt to light the furnace after opening the valve in the equipment and permitting the furnace to become filled with gas prior to the time a light was applied to the burner, and that such negligence was the proximate cause of the explosion and resulting injury, and directly contributed to the same. The answer further alleged that the action is barred by reason of the fact that no faulty workmanship or defective material was reported within the period of six months after installation. The proposal, so far as material here, contains five paragraphs as follows:
Plaintiff filed a verified reply denying the allegations of the answer in part, and that the defendant ever delivered to plaintiff's husband the above proposal, or that her husband ever entered into any written contract for the purchase and installation of the above equipment. Plaintiff further denied that she was the agent of her husband in connection with the alleged proposal.
Prior to trial, defendant filed a motion for judgment on the...
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