Miller v. Wichita Gas Co.
| Decision Date | 09 June 1934 |
| Docket Number | 31541. |
| Citation | 33 P.2d 130,139 Kan. 729 |
| Parties | MILLER v. WICHITA GAS CO. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Natural gas distributing company undertaking to inspect consumer's appliances known to be throwing off gas fumes must make inspection with such thoroughness as will enable it to discover what is causing fumes, and shut off gas until dangerous condition is remedied.
Whether gas company had notice of dangerous condition of pipes and appliances and refused to make inspection which would disclose extreme danger, and neglected to make repairs or shut off gas until owner could repair appliance, held for jury in action for injuries caused to one overcome by fumes given off from defective appliance.
Where a gas distributing company has notice that gas appliances are throwing off fumes, and the circumstances are such that the employees of the company should have known that the fumes thrown off were carbon monoxide fumes, and the gas company undertakes to make an inspection of the equipment and appliances, it is bound to make this inspection with such thoroughness as would enable it to discover what is causing the fumes and to shut off the gas until the dangerous condition is remedied.
Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.
Action by Thomas H. Miller, by his next friend, Frank Miller against the Wichita Gas Company. Verdict for defendant. From orders granting plaintiff a new trial and from orders overruling a demurrer to the evidence of plaintiff, and overruling a motion for a directed verdict, defendant appeals.
A. M Ebright and P. K. Smith, both of Wichita, and Robert D Garver, of Kansas City, Mo., for appellant.
C. A. Matson, I. H. Stearns, and E. P. Villepigue, all of Wichita, for appellee.
This was an action by a minor through his next friend for damages caused by inhaling the fumes of monoxide gas. The general verdict was in favor of defendant. The appeal is by the defendant from orders granting plaintiff a new trial and from orders overruling a demurrer to the evidence of plaintiff and overruling a motion for a directed verdict.
The facts are as follows: Plaintiff lived with his brother and his brother's wife in an apartment in Wichita. The apartment house was built by a man named Shearer in 1930. There were four apartments in the home all on one floor. Each apartment had a living room, bedroom, dinette, and kitchen. Each living room was equipped with a gas floor furnace and a gas appliance in the fireplace. Each kitchen was equipped with a gas range and each bedroom with a small gas stove. The stove in the bathroom was not connected with a flue or chimney. There was no outside window in the bathroom. There was no excavation under the house except under apartment 4. In this excavation was located a gas meter which measured the gas from all four apartments.
There was only one chimney for all four apartments. It was located between apartments 3 and 4. The floor furnaces in each of the apartments were connected with this flue by pipes. These floor furnaces were fastened to the joists under the floor and had a valve which regulated the amount of gas which might flow into the furnace. At the time of the injury each furnace was set to consume 36 cubic feet of gas per hour. This could be adjusted by turning a valve on the furnace. It was possible to turn on as much as 75 cubic feet per hour. In case this was done there would be incomplete combustion and carbon monoxide fumes would result.
The appliances in use were neither sold nor installed by the defendant.
On July 18, 1930, the owner of the apartment house signed a written application for gas to be delivered at the curb line. He represented that the lines, pipes, and appliances had been properly inspected and were suitable for the reception of gas.
During the years that the apartment house has been operated the apartments had been occupied by different families. It has not been necessary for any of these families to apply to the company for gas. It was only necessary for them to turn on the gas in the various appliances and light them.
On January 11, 1932, an employee of the company went out to apartment 1 to answer a complaint that the floor furnace was throwing off fumes. The company's agent advised that it should be repaired. On April 21, 1932, defendant sent a man to adjust a kitchen range in apartment 2. With these two exceptions no agent of defendant was ever in the building until after the injury to plaintiff on December 11, 1932.
Shearer, the owner of the apartment, testified that he notified the company in December, 1931, that he had a complaint from apartment 1 and the company promised to send a man out to see about it. He also testified that a little later he phoned the gas company about a complaint in apartment 2. Some one told him over the telephone again that the company would send a man out to see about it. He also testified that about December 1, 1932, a few days before the plaintiff was injured. Mrs. Miller called him about fumes in apartment 1. He testified that he phoned the gas company a few days later and asked if Mrs. Miller had made a complaint to the company, and some employee of the company said she had and they were looking after it.
On the morning of December 12, 1932, the plaintiff was found in the bathroom in apartment 1 in an unconscious condition and with burns on his left arm and face. At the time he was found in this condition the floor furnace was burning and the kitchen range had been burning. The bathroom stove had been turned out. It was very cold weather and all the doors and windows were closed except a kitchen window, which was up an inch or two. The first parties who entered the apartment noticed the odor of monoxide gas.
The negligence relied on by the plaintiff was that the equipment was generally improperly installed and the pipes and other equipment attached to the appliances were defective inadequate, and unsuitable to carry off the fumes and carbon monoxide gas. Plaintiff alleged that agents of defendant inspected all of the gas appliances and gas pipes and flues in the apartment house and knew of their exact condition, and that tenants in the building notified defendant that monoxide fumes were creeping from the heating apparatus into the various apartments. The petition...
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