Kinderknecht v. Hensley

• Citation: 164 P.2d 105,160 Kan. 637
• Decision Date: 08 December 1945
• Docket Number: 36463.
• Parties: KINDERKNECHT v. HENSLEY.
• Court: United States State Supreme Court of Kansas

164 P.2d 105

160 Kan. 637

KINDERKNECHT v. HENSLEY.

No. 36463.

Supreme Court of Kansas

December 8, 1945

Appeal from District Court, Sedgwick County; Isaac N. Williams Judge.

Appeal from District Court, Sedgwick County; Isaac N. Williams Judge.

Action by Irene Kinderknecht against Eugene Hensley, doing business as the Wichita Plumbing & Heating Company, and another to recover damages for injuries sustained as the result of a gas explosion. From an order overruling named defendant's demurrer, named defendant appeals.

Reversed.

Syllabus by the Court.

1. A petition alleging a plumber negligently, carelessly and recklessly, ignited gas fumes in the basement of plaintiff's premises resulting in an explosion and her personal injury, examined in the light of applicable legal principles; (1) that the mere fact an accident occurs and injury results is not sufficient to establish liability, (2) that before a plaintiff can recovery in an action predicated on negligence he must both allege and prove the negligence which was the proximate cause of the injury for which recovery is sought, (3) that when timely motions, resisted by a plaintiff, are leveled against a petition and overruled the legal sufficiency of its allegations when tested by a demurrer must be strictly construed, and (4) that general allegations of negligence will not withstand a demurrer when challenged by a motion to make definite and certain, and held, the substantive facts therein set forth failed to state facts sufficient to constitute a cause of action.

2. The rule that general allegations of negligence are not sufficient as against a demurrer when challenged by a motion to make them more definite and certain is not avoided or curtailed by virtue of allegations in a petition to the effect the specific acts of negligence relied on for recovery are within the sole and peculiar knowledge of the defendant.

SMITH J., dissenting.

Paul R. Kitch, of Wichita (Homer V. Gooing, Howard, T. Fleeson, Wayne Coulson, and Manford Holly, all of Wichita, on the brief), for appellant.

Lawrence S. Holmes, of Wichita (George J. Hondros, of Wichita, on the brief), for appellee.

PARKER Justice.

This is an action against a gas company and a plumber to recover damages for injuries sustained as the result of a gas explosion. The appeal presents the propriety of the trial court's order in overruling the defendant plumber's demurrer to allegations of the petition charging that his negligence in igniting gas caused the explosion which resulted in the injuries suffered by the plaintiff.

While we are not here concerned with allegations of the petition respecting liability of the gas company or the plumber, Hensley, hereinafter in the interest of brevity referred to as the defendant, for alleged negligence in the construction of a gas service line, the petition relates the story required for a full and complete understanding of the issue raised by the appeal about as briefly as it can be told. For that reason it will be quoted at length.

Allegations of such pleading so far as they relate to facts and circumstances relied on for recovery read:

'1. That the plaintiff is a resident of Wichita, Sedgwick County, Kansas, and her correct post office address is 1642 Salina Street, Wichita, Kansas.

'2. That the Defendant, Eugene Hensley, is a resident of Wichita, Sedgwick County, Kansas, and that he is engaged in the plumbing business doing business under the firm name and style of the Wichita Plumbing and Heating Company.

'3. That the Defendant, the Consolidated Gas Utilities Corporation, is a corporation duly organized and authorized to do business in the state of Kansas with its place of business located at 411 Beacon Building, Wichita, Kansas.

'4. That on or about July 9, 1943, the defendant, the Consolidated Gas Utilities Corporation, was furnishing gas to the premises located at 1642 South Salina Street in Wichita, Kansas. That on that day the Plaintiff became aware of the fact that there was gas escaping on or about the premises at 1942 Salina Street in Wichita, Kansas. That immediately thereafter the Plaintiff's husband notified the Consolidated Gas Utilities Corporation that there was gas leaking somewhere on or about the premises located at 1642 Salina Street.

'Plaintiff further alleges that said Defendant, the Consolidated Gas Utilities Corporation, was notified by her husband J. J. Knderknecht, by telephone and such notice was given to the Service Department of said defendant corporation; and that said defendant corporation, upon being notified of said gas leakage on or about the premises on which this Plaintiff was living, negligently and carelessly failed and refused to ascertain the cause of said gas leakage or to shut off the service line of said gas and failed to do anything whatsoever to protect the person and property of this Plaintiff. That the valves and gate on the service line leading into the Plaintiff's property are also under the full control and custody of this Defendant; and upon being notified of the leak upon said premises of this Plaintiff, the said Consolidated Gas Utilities Corporation made no effort whatsoever to shut off the service to these premises.

'Plaintiff further alleges that as a result thereof Plaintiff called the Wichita Plumbing and Heating Company which is owned and operated by the Defendant, Eugene Hensley. That the Defendant, Eugene Hensley, instructed this plaintiff to shut the gas off at the meter and shut off all burners and pilot lights in the house and open the windows and said he would be out and make an examination of the plumbing on the premises and this Plaintiff followed these instructions.

' That the said Defendant, Eugene Hensley, on or about 6:00 o'clock on July 9, 1943, while making an inspection of the premises located at 1942 Salina Street, negligently, carelessly and recklessly ignited gas fumes in the basement of said premises causing a violent explosion and severely burning and injuring this Plaintiff as hereinafter alleged.

' Plaintiff states that the exact manner and circumstance under which said explosion occurred is unknown to this Plaintiff but is within the full and sole knowledge of the Defendant, Eugene Hensley. That a leak in the service pipe leading into the meter on the above described premises allowed gas to accumulate on the premises where this Plaintiff was living.

'That all the plumbing work including the service line on these premises was constructed by the Defendant, Eugene Hensley, and his employees and that the same was done in a negligent manner.

'That the negligence of the Defendant, the Consolidated Gas Utilities Corporation, in failing to shut off the gas at the service main together with the negligence of the Defendant, Eugene Hensley, as heretofore alleged were the sole and proximate causes of the damages sustained by this Plaintiff.' (Emphasis ours.)

On examination of the allegations of the petition as quoted, even though not separately stated and numbered, it is evident plaintiff bases her right to relief so far as defendant is concerned upon two separate and distinct causes of action. One is founded upon the theory that he was liable because of negligent construction of a gas service line some time prior to the date she suffered injury and the other is predicated upon the premise of negligence in the ignition of gas fumes on the day the explosion occurred.

After this pleading had been filed defendant presented a motion to make it more definite and certain with respect, first to negligence relied on as a basis for recovery in the ignition of gas, and second, negligence permitting recovery for defective construction of the service line. This motion was overruled as to the first ground and sustained on the second. With the latter we are not concerned nor will we hereinafter make reference to it except to say defendant now concedes that when an amended petition was filed additional allegations pertaining to construction of the service line were sufficient to state a cause of action. The all important point is that no attempt was made to amend allegations challenged in the first ground of the motion and that the amended petition when filed contained the identical averments to be found in the original pleading as to alleged negligent ignition of gas and the plaintiff continues to rely on them for recovery. So, in our consideration of this appeal it must be kept in mind that the quoted allegations of the petition, which we have underlined for purposes of emphasis, and the same as those to be found in the amended pleading filed after the original one had been motioned.

To the amended petition the defendant filed a special demurrer the averments of which were that its allegations with respect to ignition of gas by him as alleged therein did not constitute a cause of action and that such allegations should be stricken therefrom. This demurrer was overruled by the trial court. Thereupon the defendant appealed.

From what has been related it becomes immediately apparent the sole question presented for review is whether the amended petition states facts sufficient to constitute a cause of action against defendant for negligence in igniting gas. We proceed on that premise nad our consideration of the rights of the parties is limited strictly to its decision.

In the determination of such a question it must be conceded at the outset that the mere fact an accident--in this case an explosion--occurs and injury results is not sufficient to establish liability. It is elementary law in Kansas that before a plaintiff can recover in an action predicated upon negligence he must both allege and prove the negligence of the defendant which was the proximate cause of the injury...