McDonald v. Kansas City Gas Co.

• Decision Date: 20 December 1932
• Docket Number: 30432,30433
• Citation: 59 S.W.2d 37,332 Mo. 356
• Parties: McDONALD v. KANSAS CITY GAS CO. et al
• Court: Missouri Supreme Court

59 S.W.2d 37

332 Mo. 356

McDONALD v. KANSAS CITY GAS CO. et al

Nos. 30432, 30433

Supreme Court of Missouri, First Division

December 20, 1932

Rehearing Overruled March 16, 1933.

Chas M. Bush, of Kansas City, for appellant Bailey-Reynolds Chandelier Co.

Chas H. Mayer, of St. Joseph, and Charles M. Miller, of Kansas City, for appellant Kansas City Gas Co.

Clif Langsdale and Denton Dunn, both of Kansas City, for respondent.

OPINION

HYDE, Commissioner.

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 13 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 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.

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 demurrer to plaintiff's petition on the ground that it did not state facts sufficient to constitute a cause of action. On April 3, 1926, plaintiff filed an amended petition making specific allegations of negligence. Thereafter, on May 10, 1926, the chandelier company filed, likewise in its corporate name for its separate answer, a general denial. On December 20, 1928, a stipulation was entered into by the attorney for the chandelier company with the attorney for the gas company and the attorney for plaintiff that the deposition of a witness taken in the James Case and the testimony of another witness (both were plaintiff's witnesses) given at the trial of the James Case against both of these defendants might be read in evidence at the trial of this case against both defendants. On the day the case was called for trial, May 6, 1929, the chandelier company asked leave to withdraw its answer, and, when leave was granted, it filed a demurrer upon the ground 'that there is a defect of parties defendant as to this defendant in this, that there is no allegation of fact stated in plaintiff's first amended petition on which to base a judgment against any legal entity or person.' Evidence was introduced showing that the chandelier company was a corporation, and this was not denied. The demurrer was overruled, and the cause went to trial on plaintiff's petition without amendment. The chandelier company set up in its amended answer the ground stated in its demurrer, in addition to its general denial.

While it may be that the chandelier company could have raised this question in the first instance, we hold that it waived it, during the period of more than five years between the filing of the suit and the trial, by filing a general demurrer to the petition, filing an answer to the merits, and entering into a stipulation regarding the use of former evidence in the trial of the James Case, all of which it did in its corporate name in which it was sued. This stipulation settled the identity of this defendant because the James Case, referred to therein, resulted in a judgment against this same defendant corporation which this court has affirmed. We hold this defendant corporation made a general entry of appearance which gave the court jurisdiction of it. As to what constitutes general entry of appearance, see 14a C. J. 813, § 2923; 14a C. J. 831, § 2945. See, also, § 965, R. S. 1929 (Mo. St. Ann. § 965); Hudson v. St. Louis, Kansas City & Northern Ry. Co., 53 Mo. 525; Witthouse v. Atlantic & Pacific Ry. Co., 64 Mo. 526; Flynn v. City of Neosho, 114 Mo. 567, 21 S.W. 903; Gray v. Grand River Coal & Coke Co., 175 Mo.App. 421, 162 S.W. 277; Newcomb v. N. Y. Cent. & Hudson River R. R. Co., 182 Mo. 687, 81 S.W. 1069; Thomasson v. Mercantile Town Mutual Ins. Co., 217 Mo. 485, 116 S.W. 1092; State ex rel. Pacific Mutual Life Ins. Co. v. Grimm, 239 Mo. 135, 143 S.W. 483; Joe Dan Market v. Wentz, 321 Mo. 943, 13 S.W.2d 641; Clark v. Grand Lodge of Brotherhood of Railroad Trainmen, 328 Mo. 1084, 43 S.W.2d 404. It is also said: 'According to the prevailing view, in an action against a corporation, if it is sued by its corporate name, the fact that the defendant is a corporation need not be expressly alleged,' at least where its name imports a corporation. 7 R. C. L. 697-700, §§ 700-703; 14a C. J. 815-818, §§ 2928-2929; Ann. Cas. 1913C, 339. There are cases to the contrary (see above authorities), but it is at least a matter which can be waived by general appearance.

The chandelier company also complains of the admission of certain testimony of the gas company's witnesses to the effect that the gas main was gas-tight before the break; that sewer gas is explosive, and that there have been explosions in sewers; that such explosive gases have increased in sewers since the use of automobiles; that the break in the gas main looked like a fresh break; that smoke and steam from the building interfered with taking pictures on behalf of the gas company; that the charts made by the recording instruments in the gas company's office showed certain movements of the recording needle which it was claimed indicated the breaking of the gas main by the explosion; that, if natural gas sufficient to cause an explosion had been in the basement the explosion would have taken place at the first movement of the elevator instead of about two hours later; and that certain acids used by the chandelier company in its business, which were drained out through its sewer pipes, would eat out the pipes leading to the city sewer and leave an opening for sewer gas to get into the basement. The chandelier company's contention about this testimony is that the witnesses' answers were merely conclusions, and that it injected false issues into the case. Even if that were true, it would not be ground for reversal of plaintiff's judgment. These matters all went to sustain the gas company's defense that no natural gas got into the basement from its main. Both plaintiff and the chandelier company claimed that it did. The jury was not authorized to find a verdict against either defendant unless it found that the explosion was caused by natural gas which had escaped from the gas company's main, and, since it returned a verdict against both, it so found. If it was error at all, it was error in favor of the chandelier company's codefendant, and, especially since the jury found a verdict against this codefendant, it cannot complain. It is only when incompetent evidence introduced by a codefendant affects the question of the other defendant's liability to plaintiff that there can...