Jelf v. Cottonwood Falls Gas Co., Inc.

• Decision Date: 07 July 1945
• Docket Number: 36208.,36207
• Citation: 160 Kan. 112,160 P.2d 270
• Parties: JELF et ux. v. COTTONWOOD FALLS GAS CO., Inc. JELF v. SAME.
• Court: Kansas Supreme Court

160 P.2d 270

160 Kan. 112

JELF et ux. v. COTTONWOOD FALLS GAS CO., Inc.

JELF v. SAME.

Nos. 36207, 36208.

Supreme Court of Kansas

July 7, 1945

Rehearing Denied Sept. 4, 1945.

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

Action by M. C. Jelf and Ollafae Jelf, his wife, and action by Ollafae Jelf, against the Cottonwood Falls Gas Company, Inc. for damages allegedly sustained in an explosion of natural gas, which actions were consolidated in trial court. From judgments for plaintiffs, the defendant appeals, and the appeals were consolidated.

Reversed with directions to grant defendant a new trial on all issues.

Syllabus by the Court.

1. In an action for damages alleged to have been sustained when natural gas was permitted to leak into the premises occupied by plaintiffs and cause an explosion, when the gas distributing company has notice that gas is leaking into the residence occupied by a customer, it is its duty to inspect the premises and to discover and repair the leaks.

2. In such a case as that described in the first paragraph of the syllabus, the question of whether or not it is contributory negligence for the plaintiffs to continue to occupy the house when they smell natural gas leaking is one for the jury.

3. In such a case as that described in the first paragraph of this syllabus certain errors as to instructions are noted and found not to be good.

4. In an action such as that described in the first paragraph of this syllabus, a motion for judgment on the answers to special questions notwithstanding the general verdict is considered and held not good.

5. In an action such as that described in the first paragraph of this syllabus, where one of the plaintiffs testified that the property was worth one dollar more at the time of the explosion than it was at the time it was assessed for valuation, it was error to exclude his evidence as to the assessed value.

6. In such an action as that described in the first paragraph of this syllabus, it was error to permit the plaintiff to testify that he reached the conclusion as to value of his property by considering replacement value rather than actual value.

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

Harry K. Allen, of Topeka (L. N. Ascough, of Topeka, on the brief), for appellees.

SMITH Justice.

These two actions were for damages alleged to have been sustained in an explosion of natural gas. They were consolidated in the trial court and on appeal were consolidated here. The judgment in each one was for the plaintiffs. The defendant has appealed.

The actions are to recover damages alleged to have been sustained when an explosion occurred in the home of plaintiff, destroying the house and damaging the contents. One action is by the husband and wife to recover damages for the contents. The other is by the wife to recover damages for the destruction of the residence. It was brought by her because the property was in her name. For the sake of clarity and to avoid repetition the pleadings in the action brought by the husband and wife will be referred to herein.

This petition, after alleging the marital relationship of plaintiffs and that the defendant was a corporation and that plaintiffs were the owners of the household goods and personal effects contained in the dwelling house which they occupied as a residence (a list of the household goods and personal effects was attached to the petition), alleged that the defendant was in the business of furnishing natural gas to the residents of Cottonwood Falls; that it owned and operated a system of gas mains through the streets and alleys of the city; that part of this system consisted of gas mains along a certain alley adjacent to the lots on which plaintiffs' home was located; that the service pipe extended from the gas main in the alley to the residence of plaintiff and that it was the belief of plaintiff that the defendants owned the lateral connecting with defendant's gas main in the alley. The petition then alleged that for the purpose of delivering gas to the residence of plaintiff the company had established a gas meter attached to plaintiffs' residence and that the pipes and laterals leading thereto had rusted and deteriorated; that on or about July 15, 1943, plaintiffs notified the gas company that gas was escaping into their residence. Thereupon the employees of the defendant examined the pipes to determine the source and cause; that again in August and again in September plaintiffs advised defendants of escaping gas; that plaintiffs did not know which of the connections and pipes were affected; that on September 7, 1943, about the hour of four-thirty an explosion occurred in the dwelling house of plaintiffs, which caused a fire from which plaintiffs' household goods were totally destroyed; that the explosion was caused by the carelessness and negligence of defendant in certain particulars, as follows: In permitting said gas to escape from the pipes and fittings above described and to accumulate in plaintiffs' dwelling; in undertaking to deliver its gas to plaintiffs' residence through laterals and service pipes of inadequate size; in transporting and delivering its gas through said laterals and service pipes to plaintiffs' residence after the same had become deteriorated and unsafe for the transportation of said gas; in furnishing said gas to plaintiffs when the gas meter, fittings and appliances installed in plaintiffs' residence were in a defective and unsafe condition and in allowing the gas to accumulate in plaintiffs' residence through such defective pipes, fittings and appliances after the defendant, its servants, agents and employees, had notice of such defects and that such gas was leaking and escaping into plaintiffs' residence, and in failing to repair such pipes, fittings and appliances after notice of such defects, and in failing to prevent the gas from leaking, secaping and accumulating in the residence after such notice. That the explosion and damage to plaintiffs' household goods and personal effects were directly and proximately caused by the carelessness and negligence of defendant as above specified. The petition alleged that the household goods of plaintiff were destroyed and were of the reasonable value of $2,957.70. Judgment was asked for that amount.

The defendant filed a general denial. It admitted it was a corporation and plaintiffs were residents of Chase county and defendant gas company had been engaged in the distribution of natural gas and that a portion of this system contained a gas main, pipes and connecting lines in the public alley in the rear of plaintiffs' property.

The answer denied that the company owned any mains, pipes or connections in or upon the property occupied by plaintiffs but admitted that it owned the gas meter. It also denied that for the purpose of delivering gas to the residence located upon the lots owned by plaintiffs it established and placed the gas meter at the residence of plaintiffs and denied that any explosion caused by natural gas occurred and also denied that plaintiffs suffered or sustained any damage occasioned or resulting from the explosion of natural gas. The answer then alleged that if any damage did occur it was caused by the negligence and carelessness of the plaintiffs in continuing to receive natural gas for use upon these premises and within the residence and continuing to keep the pilot light on the hot water tank lighted after they had knowledge and notice of the smell of gas and the accumulation of gas in and around the premises and failing to take precautions after knowledge of danger and in exposing the premises and property to obvious danger.

The petition in the other case was substantially the same except for the amount of damages.

To each of the answers the plaintiffs filed a reply denying all the allegations, especially contributory negligence. At the close of the plaintiffs' evidence the defendant demurred on the ground that it did not prove nor tend to prove any cause in favor of plaintiffs against the defendant. This demurrer was overruled.

When the cases were submitted to the jury, the jury found for the plaintiffs in each case and answered special questions as follows:

'1. Was the property of the plaintiff damaged by reason of an explosion of gas? A. Yes.

'2. By whom was the gas supplied to the residence of the plaintiff? A. The Cottonwood Falls Gas Co., Inc.

'3. At any time prior to said explosion, did the defendant (a) have knowledge of or (b) notice of the escape of gas onto or around the premises of the plaintiff? A. (a) Yes. (b) Yes.

'4. If you answer the foregoing question in the affirmative, then state (a) when the defendant had such knowledge or notice and (b) how such knowledge or notice was acquired? A. (a) July, 1943 and August, 1943. (b) Verbally and by telephone.

'5. If you answer question No. 3 in the affirmative, then state whether the defendant did anything to prevent the escape of the gas onto or around the premises of the plaintiff and if so, state what action was taken by defendant. A. No evidence to that effect.

'6. Was the defendant negligent in permitting gas to escape onto the premises of the plaintiff? A. Yes.

'7. If you answer the foregoing question in the affirmative, then state in what respect it was negligent. A. By failure to properly make inspection.

'8. Was such negligence the proximate cause of the damage suffered by the plaintiff? A. Yes.

'9. If you find that the plaintiff is entitled to recover, then state (a) what amount you allow for damage to the building and (b) what amount you allow for damage to the contents of the building. A. (a) $1430.00. (b) $1950.00.

'10. At the time of the

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