McDonald v. Kansas City Gas Co.

• Court: Missouri Supreme Court
• Writing for the Court: Hyde
• Citation: McDonald v. Kansas City Gas Co., 59 S.W.2d 37, 332 Mo. 356 (Mo. 1933)
• Decision Date: 16 March 1933
• Docket Number: No. 30433.,No. 30432.,30432.,30433.
• Parties: FERN McDONALD, by her next friend, SUSAN J. BABER, v. THE KANSAS CITY GAS COMPANY, a Corporation, and BAILEY-REYNOLDS CHANDELIER COMPANY, Appellants.

59 S.W.2d 37

FERN McDONALD, by her next friend, SUSAN J. BABER, v. THE KANSAS CITY GAS COMPANY, a Corporation, and BAILEY-REYNOLDS CHANDELIER COMPANY, Appellants.

No. 30432.

No. 30433.

Supreme Court of Missouri.

Division One, March 16, 1933.

Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.

AFFIRMED.

Charles H. Mayer and Charles M. Miller for Kansas City Gas Company.

(1) The trial court erred in refusing defendant Gas Company's peremptory instruction, requested at the close of plaintiff's evidence and at the close of all the evidence, for the reason that on the issues as joined, no actionable negligence was proven against defendant Gas Company. St. Mary's Gas Co. v. Brodbeck, 114 Ohio St. 423, 151 N.E. 323; Lodge v. Gas Co., 58 Atl. 925; Quass v. Gaslight Co., 170 N.W. 942; Woodburn v. Heat & Power Co., 164 Ky. 32, 174 S.W. 730; Nomath Hotel Co. v. Kansas City Gas Co., 204 Mo. App. 229, 223 S.W. 981; Hamilton v. Railroad, 318 Mo. 123, 300 S.W. 792; Watkins v. Bird-Sykes-Bunker Co., 16 S.W. (2d) 43. (2) The trial court erred in admitting on behalf of plaintiff, over the objection of defendant Gas Company, testimony pertaining to the burning of gas in the cooking range in the restaurant on the 19th floor of the Federal Reserve Bank Building, for the purpose of attempting to show low pressure and insufficient gas, as evidence of a break in the main in the street, and further erred in denying the Gas Company's Instruction J withdrawing said testimony from the jury, for the reason that such testimony was prejudicial to defendant Gas Company and incompetent in that it did not prove or tend to prove any issue in the case, was misleading to the jury and no proper foundation was made for the admission of such testimony, the conditions not being the same and that the conditions testified to by the witness, Mrs. Divilbiss, if true, were from other cause or causes, not in any way connected with any issue in the case, and further, having been erroneously admitted, should have been withdrawn from the jury as requested by Instruction J. James v. Gas Co., 325 Mo. 1054, 30 S.W. (2d) 118; Riggs v. Railroad, 216 Mo. 327; Klenk v. Klenk, 282 S.W. 156.

Chas. M. Bush for Bailey-Reynolds Chandelier Company.

(1) The court committed error in permitting the witness Baldwin to testify that the gas main, at the point where it was broken, was air tight and gas tight before it was broken. Gricus v. Rys. Co., 291 Mo. 582; Unrein v. Oklahoma Hide Co., 295 Mo. 373. (a) The court committed error in permitting witness Higgins to testify that manholes on sewers in Kansas City, Missouri, and Chicago had been blown up due to explosion. Lake Superior Loader Co. v. Huttig Lead & Zinc Co., 264 S.W. 396. (b) The court committed error in permitting witness Higgins to testify that "It is believed that explosive gases have increased." Gricus v. Rys. Co., 291 Mo. 582. (c) The court committed error in permitting witness Hanson to testify that the break in the gas main "looked like a fresh break." Gricus v. Rys. Co., 291 Mo. 582. (d) The court committed error in permitting witness Montgomery to testify that the steam and smoke interfered with his taking the pictures offered in evidence. Gricus v. Rys. Co., 291 Mo. 582. (e) The court committed error in permitting witness Fischbein to testify the chart showed a side movement of the needle. Gricus v. Rys. Co., 291 Mo. 582. (f) The court committed error in permitting witness Wood to testify, in answer to a hypothetical question, that if gas was escaping into the areaway overnight an explosion would occur when the first spark was made by the electric elevator. Gricus v. Rys. Co., 291 Mo. 582; Unrein v. Hide Co., 295 Mo. 353. (2) The court committed error in giving Instruction 2 requested by the plaintiff. 29 L.R.A. 356; Wojtylak v. Coal Co., 188 Mo. 260; State ex rel. Long v. Ellison, 199 S.W. 984; Randall on Instructions, sec. 86, p. 537; Hendry v. Drug Co., 245 S.W. 358; Harvey v. Blue Oak Handle Co., 279 S.W. 155; O'Brien Boiler Works v. Sievers, 256 S.W. 555; Marble Co. v. Gas Light Co., 128 Mo. App. 111. (3) The court committed error in refusing to give Instruction M requested by defendant Bailey-Reynolds Chandelier Company. (4) The court committed error in refusing to sustain the objection to the introduction of evidence by plaintiff, as asked by defendant Bailey-Reynolds Chandelier Company, and in refusing to dismiss plaintiff's case as to this defendant. Van Natta v. Harroun Real Estate Co., 221 Mo. 373; Blodgett v. Schaffer, 94 Mo. 652; Met. St. Ry. Co. v. Adams Express Co., 145 Mo. App. 371; Blades v. Cinder Block Co., 10 S.W. (2d) 319; Thompson v. Allen, 86 Mo. 85; Mayes v. United Garment Workers, 6 S.W. (2d) 333; Hirsch v. Hirsch, 273 S.W. 151; Kepley v. Realty Co., 200 S.W. 750; Barbour v. Albany Lodge, 73 Ga. 474. (5) The court committed error in assuming to have jurisdiction over this defendant and rendering judgment against it when in fact it had no such jurisdiction. Van Natta v. Harroun Real Estate Co., 221 Mo. 373; Blodgett v. Schaffer, 94 Mo. 652; Met. St. Ry. Co. v. Adams Express Co., 145 Mo. App. 371: Blades v. Cinder Block Co., 10 S.W. (2d) 319; Thompson v. Allen, 86 Mo. 85; Mayes v. United Garment Workers, 6 S.W. (2d) 333; Hirsch v. Hirsch, 273 S.W. 151; Kepley v. Realty Co., 200 S.W. 750; Barbour v. Albany Lodge, 73 Ga. 474. (6) The court committed error in refusing to grant a new trial of this cause to defendant Bailey-Reynolds Chandelier Company.

Clif Langsdale and Denton Dunn for respondent.

On the question of the refusal of its peremptory instruction the Gas Company's brief admits that "the evidence in the case at bar is in all essential respects substantially the same as in the case of James v. Kansas City Gas Company and Bailey-Reynolds Chandelier Co., 325 Mo. 1054, 30 S.W. (2d) 118," wherein the refusal of its peremptory instruction was by this court affirmed. As it cites the same cases on this point herein as it did in the James case, and as it adds no argument to its citations, there seems to be no reason why the rule of stare decisis should not apply, and the overruling of demurrer of this defendant to the evidence be likewise affirmed herein.

HYDE, C.

This is an action for damages for the death of plaintiff's husband who was killed by an explosion which blew up the sidewalk, upon which he was walking, in front of a building occupied by the Bailey-Reynolds Chandelier Company, on Grand Avenue between Ninth and Tenth Streets, in Kansas City. Plaintiff alleged that it was an explosion of natural gas caused by the negligence of both defendants. She recovered a judgment of $10,000 against both defendants and both have appealed therefrom. It was plaintiff's theory, and her evidence tended to show, that the gas which exploded escaped from a break in the Gas Company's main, found thirteen feet south of the south line of the Chandelier Company's building; that this escaping gas followed the pipe line north through the ground until it crossed a tunnel under the street, through which steam pipes had formerly been brought into the Chandelier Company's building, and then came from the tunnel into the part of the basement under the sidewalk; that it was set off by sparks from an electric elevator when the janitor employed by the Chandelier Company opened that part of the basement; that the Chandelier Company, with knowledge that gas had been accumulating in this part of its basement for many weeks, made no investigation and did nothing to prevent it; and that the Gas Company likewise during this time made no inspection of its main when by the exercise of ordinary care it could have discovered the leak. The Chandelier Company attempted to show that it was not negligent but that the negligence of the Gas Company in failing to inspect and discover the break in its main was the sole cause of the explosion. It failed, however, to make a very satisfactory explanation of its failure to do anything about the gas accumulation, of which the evidence tends to show its officers knew. The Gas Company claimed that the explosion was not caused by gas escaping from a prior break in its main, but that the break in the main was caused by the explosion. It attempted to show that the gas which exploded was either sewer gas which came into the basement by reason of defective plumbing, or natural gas which escaped from the house pipes and other fixtures which were owned and controlled entirely by the Chandelier Company. This is the second case, for damages for a death caused by this explosion, which has been before this court. The first case was James v. Kansas City Gas Company and The Bailey-Reynolds Chandelier Co., 325 Mo. 1054, 30 S.W. (2d) 118. There will be found a detailed description of the premises and an account of what took place on the morning of the explosion. Since the evidence concerning these matters is substantially the same here, it will serve no useful purpose to repeat these details. Any different or additional facts and such facts as it may be necessary to again mention will be referred to hereafter in this opinion.

[1] The Chandelier Company does not here contend that plaintiff failed to make a case, of negligence for the jury, against it. It does, however, contend that the court had no jurisdiction to render a judgment against it because plaintiff's petition merely described it as the Bailey-Reynolds Chandelier Company and did not allege that it was a corporation. Plaintiff's original petition charging negligence in general terms was filed February 16, 1924, and summons was then issued to the Bailey-Reynolds Chandelier Company. The sheriff's return stated that he executed the writ on February 18, 1924, "by delivering a copy of this writ to J.S. Bailey, president and chief officer of the within named defendant corporation the Bailey-Reynolds Chandelier Co." Thereafter, on March 24, 1924, the Chandelier Company in its corporate name filed a separate demurr...