Kitchener v. Williams

• Decision Date: 06 October 1951
• Docket Number: No. 38097,38097
• Citation: 171 Kan. 540,236 P.2d 64
• Parties: KITCHENER v. WILLIAMS.
• Court: Kansas Supreme Court

Page 64

236 P.2d 64

171 Kan. 540

KITCHENER v. WILLIAMS.

No. 38097.

Supreme Court of Kansas.

Oct. 6, 1951.

Rehearing Denied Dec. 13, 1951.

Syllabus by the Court.

1. An action for damages alleged to have been sustained by the explosion of an automatic hot water heater alleged to have been negligently serviced or installed was an action for injury to the rights of another not arising on contract within the meaning of G.S.1935, 60-306, subpar. (3).

2. In an action such as that described in the first paragraph of this syllabus, it is held the cause of action for personal injuries growing out of the invasion of plaintiff's rights did not accrue until the plaintiff had suffered damages.

3. In an action such as that described in the first paragraph of this syllabus, the plaintiff did not suffer damages so as to constitute a cause of action until the explosion occurred.

4. In an action such as that described in the first paragraph of this syllabus, the statute of limitations commenced to run when the explosion occurred.

5. The action described in the first paragraph of this syllabus was brought against a dealer who sold, installed and serviced the heater--Held the amended petition stated a good cause of action against the dealer.

W. M. Beall, of Clay Center (D. Basil Rankin, of Idana, on the brief), for the appellant.

LaRue Royce, of Salina (Charles L. Hunt and Frank C. Baldwin, both of Concordia, and E. S. Hampton, H. H. Dunham, Jr., John Q. Royce and H. G. Engleman, all of Salina, on the brief), for the appellee.

SMITH, Justice.

This was an action for damages alleged to have been sustained when gas escaped from pipes connected with a hot water heater sold to plaintiff by defendant and caused an explosion in the plaintiff's home. Judgment was for the defendant, sustaining a demurrer to the petition. The plaintiff has appealed.

Since the appeal turns on the statute of limitations, special attention will be paid to dates. The action was commenced on October 10, 1949. The petition alleged that during the year 1946 defendant operated a business at which he sold, amongst other things, electric and gas hot water heaters with controls; that these heaters were many of them heated with propane or butane gas and as a part of his business defendant installed such equipment in the homes of his customers; that on the 30th of January, 1946, defendant sold plaintiff a heater, to which were attached automatic controls, together with a tank for the storage of gas; that defendant installed it in the basement of plaintiff's house; that it was equipped with an automatic hot water control, known as a 'Grayson Unitrol,' consisting of a thermostat, a 100% thermomagnetic automatic pilot shut-off valve, main gas shut-off cock, gas floor control valves and pilot valve; that this was supposed to be so assembled that whenever the pilot light became extinguished the 100% cut-off valve would automatically, without exception, shut off all gas going either to the pilot light or to the main burner of the heater; that the line running from the storage tank to the heater was equipped with a valve, which when turned manually, cut off the flow of gas from the storage tank to the heater. The petition then alleged that this installation was commpleted about February 11, 1946; that about the 6th day of June, 1946, the mechanism failed to function properly and on request of the plaintiff an employee of defendant placed it in operation and represented to the plaintiff that he had adjusted the thermo-couple by placing it closer to the flame of the pilot light; that the heater functioned in a normal manner up to the morning of the 6th of September, 1948, when it ceased to operate and plaintiff's wife turned the manually operated valve so as to cut off the flow of gas from the tank; that at noon plaintiff endeavored to light the pilot light to start the burner by first turning the gas control value to the pilot position so that the fuel would flow to the pilot light of the heater; that he had been led to believe that the 100% cut-off valve was functioning; that a large amount of gas had escaped into the basement and when plaintiff struck a match this gas ignited, resulting in a severe explosion, which injured him. The petition then contained allegations as follows:

'(13) That at the time of such explosion the above mentioned 100% cut-off valve was not functioning properly nor in proper working condition nor assembled properly, but was, on the other hand, wholly defective in that the spring, which was supposed to close the valve disc against the valve seat whenever the pilot light became extinguished, was between the valve disc and the valve seat, an improper place for such spring, for the reason that in such position the spring would not permit the valve disc to close against the valve seat so as to cut off the flow of gas.

'(14) That the position of said spring in said 100% cut-off valve would not permit the valve to function properly.

'(15) That plaintiff does not know and cannot ascertain by any means within his control whether such 100% cut-off valve was in that condition when it was installed in his farm home or whether the said Sherbondy, defendant's employee, opened the valve and improperly reassembled it on the occasion of his visit to plaintiff's home to service said heater.

'(16) That neither plaintiff nor any member of his family nor any person whomsoever, to his knowledge, after the installation of said heater in his farm home, ever attempted, prior to said explosion, to take down said 100% cut-off valve or to re-assemble it or otherwise to tamper therewith in any respect whatsoever, other than what the defendant or his agents might have done in that respect.

'(17) That under the facts and circumstances, as herein set out, said 100% cut-off valve was an imminently dangerous appliance.'

The petition alleged it was the duty of the defendant to make a test of equipment to determine whether or not the 100% cut-off valve was in proper order; that liquid gases, such as propane, which were used as fuel by plaintiff to operate the heater, were heavier than air and, therefore, had a tendency to lie near the floor of the room where the same might have escaped; that defendant and his agents were informed as to this characteristic of propane gas and knew that it would be dangerous to install equipment in the basement because there were no openings for the gas to escape. The petition then contained allegations as follows:

'(20) That said defendant, his agents and servants, in violation of their duty to and toward plaintiff, were guilty of carelessness and negligence in and about the sale, installation and servicing of said hot water heater equipment and particularly the so-called 100% cut-off valve, and that such negligence and carelessness consisted of the following:

'(a) in failing and neglecting to test such equipment, including particularly said 100% cut-off valve, at the time of the installation thereof in plaintiff's home and before turning same over to plaintiff, to determine whether or not such equipment and valve were in perfect condition and good working order;

'(b) in failing and neglecting to test such equipment, including particularly said 100% cut-off valve, at the time of the servicing thereof, by said Sherbondy, defendant's agent, to determine whether or not such equipment, including said valve, were in perfect condition and good working order;

'(c) in failing and neglecting to install said gas hot water heater and equipment in the kitchen or some other ground floor room of plaintiff's said house, instead of in the basement thereof, which, if done, would have permitted the gas, should it have escaped, to have escaped more readily from such room where it should have been installed, through doors and openings therein;

'(d) in failing and neglecting to discover, by the exercise of reasonable care and caution, which was defendant's duty under the circumstances, the defective condition of said 100% cut-off valve, both at the time of the installation and the servicing thereof;

'(e) if the defendant, or his employees, either at the time of the installation of said heater or the servicing thereof, took down said 100% cut-off valve and then reassembled it, then such reassembling was done in such a careless and negligent manner as to leave the valve in the defective and dangerous condition it was in on the day of the explosion, as hereinbefore set out.'

The petition alleged further that this plaintiff relied at all times upon the representations of the defendant that the heater was in perfect running order and the explosion was the proximate result of the carelessness and negligence of the defendant, as already set out.

The defendant filed a motion directed at this petition in which he asked that plaintiff be required to separately state and number his causes of action. When this motion was being argued counsel for the plaintiff stated: 'The plaintiff relies solely upon tort for recovery, and does not rely upon any contract, oral or written, express or implied.' There was no motion to make the petition more definite and certain, whereupon the court overruled the motion of defendnat. Subsequently the defendant demurred to the amended petition for the reason it showed on its face the cause of action attempted to be set forth was barred by the statute of limitations, especially G.S.1935, 60-306, 3rd subdivision, and for the further reason that it did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. This demurrer was sustained and the plaintiff has appealed.

The action was filed on October 10, 1949; the heater was installed on February 11, 1946; it was last serviced by defendant on June 6, 1946, and the explosion occurred on September 6, 1948. That section of the statute of limitations, to which the defendant referred in his demurrer, is as follows:

'Civil...