James v. England

• Decision Date: 23 June 1961
• Citation: 349 S.W.2d 359
• Parties: Hobson L. JAMES, Administrator of the Estate of Frank D. PFEFFER, Deceased, Appellant, v. James E. ENGLAND et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 359

349 S.W.2d 359

Hobson L. JAMES, Administrator of the Estate of Frank D PFEFFER, Deceased, Appellant, v. James E. ENGLAND et al., Appellees.

Court of Appeals of Kentucky.

June 23, 1961.

As Modified on Denial of Rehearing Oct. 13, 1961.

Raymond C. Stephenson, Louisville, J. E. Wise, Elizabethtown, for appellant.

Hatcher & Lewis, L. A. Faurest, J. R. Layman, J. Howard Holbert, Elizabethtown, for appellees.

WILLIAMS, Judge.

This is an appeal from a judgment of the Hardin Circuit Court which, in this action for wrongful death, directed a verdict in favor of the defendants at the close of plaintiff's evidence. The administrator of the estate of Frank D. Pfeffer brought the action in behalf of decedent's widow and infant child, claiming the death to have been caused by the negligence of James E. England, J. W. Bird, V. R. Swango and the Louisville Gas and Electric Company.

In June of 1957, Frank D. Pfeffer and his wife rented from appellee England cabin 22 in Radcliffe, Kentucky, near Fort Knox. Living with them was their infant child and Dorothy Metz, sister-in-law of the deceased. The cabin at that time was heated by means of a floor furnace burning bottled gas. In October of 1957, England contracted with appellees Bird and Swango to change the heating system to natural gas in all 25 cabins owned by England. This was done by converting the appliances of all cabins to the use of natural gas. Appellee Louisville Gas and Electric Company furnished England with natural gas for fuel, and had a representative present when Bird and Swango did their work.

On Saturday, December 7, 1957, a dark, rainy day, the decedent, his wife, their baby, and Miss Metz were in the cabin about 3:30 p. m. when all suddenly fell unconscious. The baby and the decedent were in the bedroom. They were discovered the next morning about 8:30 a. m. by Mrs. Hughes, who noticed the smell of gas when she entered the cabin. The cabin was very hot and she turned the thermostat down.

Since decedent was a soldier, his illness (at that time) was investigated by the criminal investigators for the Army, who arrived at the cabin between 10:00 and 10:30 a. m. that same Sunday morning. They found the pilot light on the stove and the furnace still burning. Frank D. Pfeffer died the next day, Monday, December 9, 1957.

Appellant's theory of the case is that the decedent was asphyxiated and died from carbon monoxide poisoning because (1) the landlord, England, failed to comply with the standards of safety applicable to all rental property in the state; he was negligent in adapting the premises for the use of natural gas; he failed to properly vent the cabin; and he improperly converted the furnace by enlarging the orifice so that gas flames burned too high and unburned gas and gas fumes escaped into the Pfeffer cabin; (2) the appellees, Bird and Swango, performed negligent acts; and (3) Louisville Gas and Electric Company employees were on notice that the decedent's premises did not have an appliance adaptable for the use of natural gas and knew or should have known that the use of natural gas in that cabin was dangerous.

The single controlling question on a motion for a directed verdict, either at the close of plaintiff's evidence, or at the close of all evidence, is whether the plaintiff has sustained the burden of proof by 'more than a scintilla of evidence,' the quoted phrase having reference to evidence of probative value having fitness to induce conviction in the minds of reasonable men. Wadkins' Adm'x v. Chesapeake & Ohio Railway Co., Ky., 298 S.W.2d 7.

The evidence shows...