James v. Bailey Reynolds Chandelier Co.

• Decision Date: 09 July 1930
• Docket Number: 28547,28548
• Citation: 30 S.W.2d 118,325 Mo. 1054
• Parties: Josie I. James v. Kansas City Gas Company et al., Appellants
• Court: Missouri Supreme Court

30 S.W.2d 118

325 Mo. 1054

Josie I. James v. Kansas City Gas Company et al., Appellants

Nos. 28547, 28548

Supreme Court of Missouri

July 9, 1930

Rehearing Overruled July 9, 1930.

Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge.

Affirmed.

Charles H. Mayer and Charles M. Miller for appellant Gas Company.

(1) The trial court erred in refusing defendant Gas Company's peremptory instructions. (a) Upon the issues joined, there was no evidence of any actionable negligence on the part of the Gas Company. (b) Under the law, before plaintiff could make a case against the Gas Company for a jury, plaintiff had to show, not only that the main was broken prior to the explosion and that gas escaped from the break in the main into the basement of the building and caused the explosion but that the break had existed a sufficient length of time for the Gas Company to have known about it and repaired it. Defendant Gas Company was not in charge or control of the basement where the explosion occurred, and there is no place as to defendant for the application of the doctrine of res ipsa loquitur, even had the petition pleaded such a case. The law is firmly settled in this State that the plaintiff must affirmatively allege and prove negligence as to the defendant Gas Company. Nomath Hotel Co. v. Gas Co., 204 Mo.App. 229, 223 S.W. 981. (c) Another familiar rule which must control this case as to the defendant Gas Company, was stated by this court in Hamilton v Railroad, 318 Mo. 123, 300 S.W. 792, that "verdicts must be based upon substantial evidence and not upon speculation and conjecture." (d) Counsel for plaintiff, at the close of all the evidence, and after hearing and considering all of the evidence, amended their second amended petition, by interlineation, so it reads: "That said explosion was an explosion of natural gas or sewer gas or both said gases. Plaintiff verily believes it was one or the other or both, but she is ignorant whether it be the one or the other or both." It is elementary that a plaintiff is bound by the allegations made in the petition, and cannot dispute them. Call v. Moll, 89 Mo.App. 386; Burnham v. Ellmore, 66 Mo.App. 617; Davis v. Bond, 75 Mo.App. 32; Knoot v. Kelsey, 102 Mo. 291. Counsel for plaintiff, after a full investigation of the facts of this case, and hearing and considering all the evidence, contend they were unable to determine whether or not it was an explosion of natural gas or sewer gas. This shows, at least, the uncertainty even in the minds of counsel for plaintiff, whether or not the explosion was caused by natural gas from the gas main in the street, or natural gas from the house piping, or sewer gas. Indeed, if counsel for plaintiff are so uncertain, as disclosed by the allegations of their petition amended after hearing all the evidence, it is at least an admission on their part of the very thing we are contending for, to-wit: that any alleged proof against the Gas Company does not only fail to produce any substantial evidence, but is wholly lacking of the "reasonable certainty" that the law requires. (e) In passing on demurrer, the court should not consider evidence admitted over objection, if the evidence was incompetent and the objection should have been sustained. Riggs v. Railroad, 216 Mo. 301. (2) The trial court erred in admitting, over the objection of defendant Gas Company, on behalf of Chandelier Company, testimony pertaining to the burning of gas in the cooking range of the restaurant on the 19th floor of the Federal Reserve Bank Building. There was no evidence that the condition she testified to had anything to do with the 4 inch gas main in the street. Riggs v. Railroad, 216 Mo. 327; Klenk v. Klenk (Mo. App.), 282 S.W. 156. (3) The court erred in admitting testimony relating to the depth of the four-inch gas main in the street and whether or not traffic thereon might break the main. The testimony and other like testimony was inadmissible, first, because there was no allegation in the petition, charging defendant Gas Company with being negligent with respect to the depth of the gas main under the surface of the street. Second, because the questions and answers permitted the witnesses to give their conclusions and determine the ultimate fact and invaded the province of the jury. Even an expert witness cannot legally do this, when objection is made. Henson v. Kansas City, 277 Mo. 443, 210 S.W. 13. (4) The court erred in admitting testimony as to alleged natural gas explosions in other buildings in Kansas City. The testimony as to an alleged natural gas explosion in other buildings was prejudicial to the defendant Gas Company and was improperly received in evidence. (5) The court erred in permitting defendant Bailey-Reynolds to show the result of an experiment conducted by their witness, Cross, in his laboratory, pertaining to whether or not a piece of cast iron pipe freshly broken would oxidize around and over the broken parts while natural gas was surrounding or passing over it. The evidence discloses that the experiment conducted was not comparable to a main in the ground under the street, the gas, air and moisture from the ground being different than in the experiment, and the pipe being in tight glass jars, in a warm room where neither moisture nor air could not retain itself. No effort was made with Cross to show the conditions were "precisely duplicated" by the party offering this testimony upon whom this burden of proof rested. Riggs v. Railroad, 216 Mo. 327; Klenk v. Klenk (Mo. App.), 282 S.W. 156.

Chas. M. Bush for appellant Chandelier Company.

(1) The court committed error in admitting immaterial, improper and incompetent testimony on behalf of co-defendant Kansas City Gas Company. (a) In permitting Henderson, Chief of the Fire Department, to testify in substance that, in his experience with the fire department, he had observed explosions in sewers in Kansas City lots of times, that since the use of automobiles and the pouring of lots of gasoline into the sewers, it caused more gas than we had before; that the gas forms on the top of the sewers and goes up into the catch-basins and manholes and, most any time in very dry weather, you can drop a match in there or set fire to it that he had seen a man throw a lighted match into a sewer and it caused an explosion which blew the manhole cover about thirty feet into the air. Such testimony was incompetent because it allowed the witness, whose only experience was that of a city fireman and who was not qualified to testify as to the cause of explosions, to testify to isolated explosions under condition with which he was not familiar, and because it had no bearing on any issue in the case on trial, and it allowed the witness to testify as to isolated explosions without a knowledge of what gases caused explosions; because it allowed the witness to state his conclusions as to what caused the explosions; because it allowed the witness to testify as to other explosions, without a showing that there were present, in those explosions, any conditions similar to those existing in the basement of the building at the time of this explosion. Lake Superior Loader Co. v. Lead & Zinc Co., 264 S.W. 399. (b) In permitting Henderson to testify that he had seen the lighting and explosion of sewer gas; because such testimony did not tend to prove or disprove any issue in this case, and because there was no evidence in the case that there was any sewer gas in the basement of the building, or that sewer gas had anything to do with the explosion in question. (c) In permitting witness Higgins, who examined the break in the gas main, to testify that the break appeared to him, at that time, to be a fresh break, and that it had just been done, because the answer constituted a statement of a mere conclusion on the part of the witness and invaded the province of the jury. (d) In permitting witness Higgins to testify, in answer to a hypothetical question, assuming that gas was escaping along the gas main from the break in the pipe to the north until it reached the tunnel running across the street, that it would go into the tunnel and that the gas would fill the tunnel clear across the street, and that an explosion of gas in the area-way would ignite and carry it on into the tunnel, because there was no evidence in the case that there was any gas found in the tunnel, or that gas escaped along the pipe and went into the tunnel, and because there was no showing by the witness that he knew conditions in the tunnel, at any place except where it entered the building, or that he had any knowledge where the tunnel led to, or ended. Vance v. Dry Goods Co., 295 S.W. 517; Jones on Evidence (3 Ed.), sec. 371; Russ v. Railroad, 112 Mo. 45; Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833; White v. Railroad (Mo.), 178 S.W. 83; Feitz v. Kahler (Mo. App.), 285 S.W. 788; Henson v. Railroad (Mo.), 256 S.W. 771. (2) The court erred in excluding material, proper and competent testimony offered by defendant Bailey-Reynolds Chandelier Company. (a) In excluding the testimony of witness Noelke to the effect that he did not know, at the time, that there was natural gas coming into the basement in sufficient quantities to blow up the building and blow up the sidewalk, and that he did not know there was gas in sufficient quantities if mixed with the proper quantity of air, to cause an explosion and blow up the sidewalk and the building. Because the witness was an employee of the Bailey-Reynolds Chandelier Company and such testimony was competent to disprove the contention of the plaintiff that the Chandelier Company knew there was gas escaping into the basement and that there was danger of an explosion. (b) In excluding the testimony of witness Gott, a plumber, that the sewer...