Jelf v. Cottonwood Falls Gas Co., Inc.

Decision Date05 April 1947
Docket Number36751.
Citation162 Kan. 713,178 P.2d 992
PartiesJELF v. COTTONWOOD FALLS GAS CO., Inc. JELF et al. v. SAME.
CourtKansas Supreme Court

Appeal from District Court, Chase County; Jay Sullivan, Judge.

Consolidated actions by Ollafae Jelf against the Cottonwood Falls Gas Company, Inc., to recover for loss of residence building as result of explosion of natural gas and by M. C. Jelf and Ollafae Jelf against the Cottonwood Falls Gas Company, Inc. to recover for loss of household goods and personal effects. From a judgment in favor of the defendant, the plaintiffs appeal.

Judgment affirmed.

Syllabus by the Court

1. In considering a question of inconsistency between the answers to special questions and the general verdict nothing will be presumed in aid of the special findings and every reasonable presumption will be indulged in favor of the general verdict.

2. Unless the effect of special findings, when considered as a whole, is such as to overthrow the general verdict, the verdict must stand.

3. Special findings in a tort action which disclose that plaintiffs and defendant were both guilty of negligence are not for that reason inconsistent with each other or with a general verdict for the defendant.

4. For the purpose of obtaining a ruling on a motion non obstante veredicto all special findings are admitted to be support by the evidence.

5. The record in an action to recover damages resulting from an explosion of natural gas examined, and held: (a) A special question, if objectionable, was not objected to on a proper ground and there was no motion to strike the answer thereto (b) plaintiffs' motion for judgment non obstante veredicto was properly overruled; and (c) in view of the instructions given and the findings of fact made pursuant thereto, it was not reversible error to refuse requested instructions.

Harry K. Allen, of Topeka (L. M. Ascough, of Topeka, on the brief) for appellants.

H. C. O'Reilly and Carl A. Ballweg, both of Cottonwood Falls, for appellee.

WEDELL Justice.

Two actions were filed to recover damages resulting from an explosion of natural gas. One action was filed by Ollafae Jelf to recover damages for the loss of a residence building. The other action was brought by the same plaintiff and M. C. Jelf, here husband, to recover for the loss of household goods and personal effects. This is an appeal from the judgment rendered on the second trial of these actions. The actions were consolidated on both trials, on the former appeal and are again consolidated on this appeal.

The first trial of the actions resulted in a verdict and judgment for plaintiffs and defendant appealed. We reversed the judgment for trial errors and remanded the case for a new trial on all issues. Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 160 P.2d 270. The second trial resulted in a verdict and judgment for defendant.

The issues as joined by the pleadings are set forth at length in our former opinion. The allegations of the pleadings need not be restated but reference is made thereto for purposes of this opinion. Generally stated the cases were tried on charges of negligence on the part of defendant which defendant denied. The latter also pleaded contributory negligence on the part of plaintiffs which the plaintiffs denied.

Upon the issues thus joined the cases were tried. Special questions were submitted to the jury which including the answers thereto, were:

'1. Was the property of the plaintiffs damaged by the reason of the explosion? A. Yes.
'2. Did the defendant supply gas to the plaintiffs' residence at the time of the explosion? A. Yes.
'3. Did the defendants have knowledge of gas escaping into the residence before the explosion? A. Yes.
'4. Did the defendant inspect the plaintiffs' premises before the explosion? A. Pipe from alley to meter & meter.
'5. If you answer the above question in the affirmative, state how many times they inspected the premises? A. Twice.
'6. If you find that defendant did inspect the plaintiffs' premises before the explosion, state whether defendant shut off the gas before the explosion? A. No.
'7. Did the plaintiff or plaintiffs hire anyone or cause anyone to check or inspect the premises in question for escaping gas and to make repairs that might be required or necessary? A. Yes.

'8. If you answer Question No. 7 in the affirmative, state who were so employed? A. Bill Brown.

'9. Do you find that a person or persons at the instance of plaintiff or plaintiffs, went upon said premises and proceeded to make such inspection, prior to the explosion? A. No.

'10. Did the plaintiffs or either of them, have knowledge or notice of escaping gas prior to the explosion? A. Yes.

'11. If you answer question No. 10 in the affirmative, state approximately for how long a period before the explosion they or either of them had that knowledge? A. Six weeks.

'12. Do you find that the plaintiffs had an automatic hot water heater with pilot light flame alight in operation in said residence at the time of the explosion and for considerable period prior thereto? A. Yes.

'13. State whether or not the plaintiffs continued to use natural gas in said residence after knowing that gas was escaping into the house? A. Yes.

'14. What if anything did the plaintiffs fail to do that they should have done after knowledge of escaping gas or indications thereof were brought to their attention? A. To see that the gas was turned off immediately.'

We shall continue to refer to the parties as plaintiffs and defendant.

Plaintiffs' first contention is the trial court erred in overruling their motion for judgment notwithstanding the general verdict. They base the contention on that portion of Gen.St.1935, 60-2918 which provides: 'When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.'

They argue the special findings are so utterly inconsistent with the general verdict that the trial court erred in not setting aside the verdict and entering judgment in their favor on the special findings. They insist the first six special findings disclose the defendant was guilty of negligence and that those particular findings are therefore inconsistent with the general verdict. Under the instructions given to the jury those findings did establish defendant's negligence in the following particulars: Defendant examined only the meter and the pipe from the alley to the meter and did not examine the pipes, connections and fittings in the residence after it had been notified twice there was gas leakage from somewhere which was escaping into the residence; that, with knowledge gas was escaping into the residence, defendant failed to shut off the gas before the explosion.

Plaintiffs next contend findings No. 7, 8 and 9 are immaterial for the reason they prove no issuable facts in the case. Let us assume plaintiffs are correct on that point.

What about the remaining special findings? There was no motion to strike any finding on the ground it was not supported by substantial evidence. For the purpose of obtaining a ruling on a motion non obstante veredicto all special findings are admitted to be supported by the evidence. Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P.2d 924. The last five findings disclose: Plaintiffs had knowledge of the escaping gas for a period of approximately six weeks prior to the explosion; at the time of the explosion and for a considerable period prior thereto plaintiffs maintained an automatic hot water heater with a pilot light burning; plaintiffs continued to use natural gas in the residence after knowing that gas was escaping into the house; with the knowledge of escaping gas which plaintiffs possessed they should have seen that the gas was turned off immediately.

We need not pause to comment on plaintiffs' testimony concerning the pronounced odor of gas which they testified existed in the house during the six week period. It is sufficient to say that findings No. 10 to 14, inclusive, are consistent with the general verdict and disclose the jury believed plaintiffs also were guilty of negligence. Having found both the plaintiffs and the defendant guilty of negligence the jury rendered a general verdict in favor of the defendant. We thus find no legal inconsistency between the special findings and the general verdict. Manifestly the special findings, considered as a whole, do not overthrow the general verdict. Unless they clearly have that effect the general verdict must stand. Montague v. Burgerhoff, 152 Kan. 124, 102 P.2d 1031; Taggart v. Yellow Cab Co. of Wichita, supra.

The rule is that a general verdict and special findings should be harmonized, if possible, and that every reasonable presumption is indulged in favor of the general verdict. Moore v. Connelly, 119 Kan. 35, 237 P. 900; Jordan v. Austin Securities Co., 142 Kan. 631, 51 P.2d 38; Montague v. Burgerhoff, 152 Kan. 124, 102 P.2d 1031. In considering a question of inconsistency between the answers...

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