Koenig Bros. v. Zibart

• Decision Date: 24 April 1934
• Citation: 254 Ky. 43,70 S.W.2d 945
• Parties: KOENIG BROS. v. ZIBART.
• Court: Kentucky Court of Appeals

70 S.W.2d 945

254 Ky. 43

KOENIG BROS. v. ZIBART.

Court of Appeals of Kentucky

April 24, 1934

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by G. Zibart against Koenig Brothers. Judgment for plaintiff and defendant appeals.

Affirmed.

Eugene R. Attkisson, of Louisville, for appellant.

Benjamin F. Gardner, of Louisville, for appellee.

RATLIFF Justice.

G Zibart brought this suit in the Jefferson circuit court against Peter Koenig, Frank Koenig, J. B. Montgomery partners, trading and doing business as Koenig Bros., to recover of them for damages to his residence caused by a gas explosion.

The petition alleges, in substance, that in the month of April, 1928, appellee, plaintiff below, erected a cottage dwelling on his lot in Louisville, Ky. and contracted with appellants, defendants below, to install the plumbing in the building including the gas pipes and fixtures; that his house was completed on or about the 2d day of May and he and his family moved into it; that the inflow and supply of gas was insufficient for the purpose of cooking, and he called upon the defendants to repair or remedy the trouble, and on May 18, 1928, the defendant Peter Koenig came to his house and made an examination in an effort to locate the defect in the gas fixtures; that Koenig removed the gas meter and tested the gas stove and pipes with matches and found that there was no gas present; that Koenig replaced the meter and promised to come back the following day, and on May 19 he came back and removed the gas meter in the basement and then went outside of the building and did some repairs on the intake pipe and allowed the gas to leak into the cellar without replacing the meter or stopping the opening of the pipe caused by the removal of the gas meter; that after considerable delay a hole or opening in the gas pipe on the outside of the building was found, and Koenig closed the opening by soldering same, and then returned to the basement and carelessly and negligently struck a match to make further inspection of the pipe, whereupon there occurred a powerful explosion of gas, which in the meantime had flowed through the opening of the pipe and accumulated in the basement as a result of his failure to stop the opening of the pipe or to replace the meter while he was making his examination and repairs to the pipe on the outside; that as a result of the explosion his dwelling house was shook from its foundation and the walls, ceiling, roof, chimney, and the whole house was damaged to such an extent that it was rendered uninhabitable, and plaintiff was required to remove himself and family therefrom.

He further alleged that thereafter the defendants promised and agreed with him to reconstruct and repair the damages and injuries to his dwelling as a result of the explosion, but after waiting a reasonable time for defendants to begin the work of reconstruction and repair, he made demand of them to perform said work, whereupon they refused to do so, and plaintiff was forced to repair his building himself at a cost of $1,100, which was the reasonable cost of the reconstruction and repairs made necessary because of the explosion.

He asks to recover the further sum of $420 for the loss of the use of the dwelling between the time of the damage thereto and the time it was repaired.

The concluding grammatical paragraph of the petition is as follows: "Plaintiff states that by reason and because of the breach of the contract upon the part of defendants as herein set forth, and the negligence and carelessness of the defendants, their agents and employees as herein set forth, he was and has been damaged in the sum of $1520.00, for which amount, including interest on the sum of $420.00 for fourteen months at six per cent per annum up to the 2nd day of July, 1929, and also interest on $1520.00 at the rate of six percent per annum from and after said date."

Defendants entered motion to require plaintiff to elect whether he will maintain his action as one for breach of contract or for tort, which motion was sustained by the court and plaintiff elected to prosecute his action for breach of contract, and the court on its own motion struck from the last paragraph of the petition relating to the breach of contract, the following words: "*** and the negligence and carelessness of the defendants, their agents and employees as herein set forth ***"

Plaintiff's petition stated a cause of action on both negligence and breach of contract. It was unnecessary perhaps for plaintiff to have set out in his petition in detail the acts of negligence as he did. It would have been sufficient had he merely set out the facts that the explosion occurred and that a bona fide controversy or dispute arose between himself and defendant as to the cause of the explosion and whether defendants were responsible therefor and in compromise and settlement of the dispute defendants promised and agreed to repair his house, and thereafter breached the contract. But after he elected to try on breach of contract and the court struck from that portion of the petition the above-quoted allegations of negligence, the action was for breach of contract and the allegations of negligence were not prejudicial or harmful, though unnecessary. Barr v. Gilmour, 204 Ky. 582, 265 S.W. 6; Forsythe v. Rexroat, 234 Ky. 173, 27 S.W.2d 695.

Defendants filed their answer traversing the allegations of the petition and later by amended answer pleaded that the explosion was caused by lightning, alleging that there was an electric storm on at the time of the explosion and lightning struck the house resulting in an ignition of the gas in the basement. Later by a second amended answer they pleaded contributory negligence on part of plaintiff, alleging that plaintiff negligently permitted gas to escape and accumulate in the basement of his dwelling and that the gas which caused the explosion was in the basement before and at the time defendant Peter Koenig entered the basement for the purpose of making the examination, and plaintiff negligently failed to inform the defendant of the presence of the gas.

The issues were made and the case tried to a jury and resulted in verdict and judgment in favor of plaintiff in the sum of $1,100. A motion and grounds for a new trial were duly made and overruled. From that judgment this appeal is prosecuted.

Evidence was taken by the respective parties respecting the alleged negligence of the defendants, the cause of the explosion, and the alleged agreement or promise of defendants to repair the house. The plaintiff testified that immediately before Koenig went into the basement be called for matches, which were furnished him, and soon after he went into the basement the explosion occurred. Plaintiff was corroborated by his thirteen year old son, who testified that he delivered the matches to Koenig at his request immediately before he went into the basement. No one testified that they saw Koenig strike a match. The above circumstances are the only evidence as to whether or not he did light a match. Koenig denies calling for matches or that he had any matches and denies that he lighted a match at all at that time. He stated that the odor of gas was present when he entered the basement and he opened a basement window to let the gas escape and then started back up the basement steps and when about halfway up the steps the explosion occurred. He says he did...