Nomath Hotel Company v. Kansas City Gas Company
| Decision Date | 31 July 1923 |
| Parties | NOMATH HOTEL COMPANY v. KANSAS CITY GAS COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. Ralph Hughes, Judge.
Affirmed.
James Simrall and Charles M. Miller for appellant; J. W. Dana of counsel.
(1) The trial court erred in granting plaintiff a new trial for the reason that it erred in giving Instructions 9 and 16 requested on behalf of the defendant. Louisville Ry. Co v. Wellington, 126 S.W. 371; Nelson v. Mining Co., 88 P. 786. (2) The trial court erred in granting a new trial to plaintiff for the reason that plaintiff made no case of actionable negligence for a jury against defendant and the court should have given defendant's peremptory instructions, and the verdict, therefore, being for the right party it, is immaterial whether or not there was any error in the giving of instructions. (a) No actionable negligence was proven by plaintiff against defendant. Sipple v. Gas Light Co., 125 Mo.App. 81; Nomath Hotel Co. v. Gas Co., 204 Mo.App. 214; Woodburn v. Heat & Power Co., 164 Ky. 30; Quass v. Gas Light Co., 170 N.W. 942; Hammerschmidt v. Gas Co., 99 N.Y.S. 890; Mowers v. Gas Co., 126 N.Y.S. 1033; 14 Am. & Eng. Ency. Law, 937; State v. Gas Co., 85 Md. 637; Hunt v. Lowell Gas Co., 1 Allen, 343; Bartlett v. Boston Gas Co., 117 Mass. 539; Holly v. Boston Gas Co., 8 Gray (Mass.) 123; Emerson v. Lowell Gas Co., 3 Allen, 410; Rockford Gas Co. v. Ernst, 68 Ill.App. 330; Aurora Gas Co. v. Bishop, 81 Ill.App. 493; Pine Bluff Water Co. v. Screider, 62 Ark. 109. (b) The cause of the explosion was a leak in plaintiff's house piping, which includes the booster pump, over which defendant had no control. (c) The booster pump was unlawful. Green Co. v. Kansas City, 240 S.W. 132; Thornton on Oil and Gas (3 Ed.) sec. 31; Manufacturers Co. v. Indiana Co., 155 Ind. 461; Kansas City Gas Co. v. Kansas City, 198 F. 519; State ex rel. v. Kansas City Gas Co., 254 Mo. 533; The Lusitania, 251 F. 732; Barney v. Railroad, 126 Mo. 372; Williams v. St. Joseph, 166 Mo.App. 300. And was not only the cause of the ignition of the gas, but was, in another respect, at least a direct contributing cause of the result and damage to plaintiff by reason of leaking gas from the house piping including the booster pump, and forcing an unusual and great volume of additional gas into plaintiff's cafe, in either event barring recovery. Swizart v. Lusk, 196 Mo.App. 476; Weller v. Railroad, 120 Mo. 656; Williams v. Friese, 14 Mo.App. 436; Roper v. Greenspon, 272 Mo. 288; Taxicab Co. v. Stroh, 215 S.W. 748.
Cooper, Neel & Wright and Martin Lawson for respondent.
(1) The court was clearly justified in granting plaintiff a new trial for the reason assigned, viz.: that prejudical error was committed in giving Instructions 9 and 16 requested on behalf of defendant. Instruction 9 told the jury to find for defendant if it considered possible of occurrence any of certain facts which defendant advanced as alternative explanations of the explosion. This elevated plaintiff's burden of proof to the degree required in criminal cases -- that it must have proved its theory of the explosion beyond a reasonable doubt. Instruction 16 emphasized this unreasonably high standard, by requiring plaintiff to furnish proof amounting to "certain" evidence, and Instruction 8 clinched the matter with the jury by charging them that they must find for defendant if the evidence was "uncertain." The whole evidence, for both plaintiff and defendant, was circumstantial. In the nature of the case, an honest jury could not reach a conviction which excluded every reasonable doubt. Circumstantial proof does not establish the ultimate fact to a certainty, nor is the plaintiff in any civil case required to prove his case by more than a reasonable preponderance of the credible evidence. No plaintiff is compelled to show that a casual theory advanced by defendant could not possibly be true, but only that the strong probability is otherwise. (a) All Missouri precedents condemn these instructions. State ex rel. Detroit Ins. Co. v. Ellison, 268 Mo. 239; First Marine Ins. Co. v. Lusk, 205 Mo.App. 205; Gay v. Gillilan, 92 Mo. 257; Grant v. Rowe, 83 Mo.App. 562; Williams v. Watson, 34 Mo. 95; Culbertson v. Hill, 87 Mo. 553; Scott v. Allenbaugh, 50 Mo.App. 130; Bitter v. Sauthoff, 98 Ill. 266; Thompson Lumber Co. v. Interstate Comm. Comm., 193 F. 682; Stearns v. Field, 90 N.Y. 640; Graves v. Caldwell, 90 Ill. 618; Hister v. Laird, 1 W. & S. (Pa.) 245; Ratner v. Sadowsky, 156 N.Y.S. 292; Callison v. Smith, 20 Kan. 28; Ball v. Marquis, 92 N.W. 691; Kelly v. Malhoit, 115 Ill.App. 23. With respect to the construction of the word "certain," see Treadwell v. Whittier, 80 Cal. 574, 5 L. R. A. 498. (b) Error is not cured by other instructions. Goode v. Central Coal Co., 167 Mo.App. 169; Walker v. White, 192 Mo.App. 13. (2) The trial court properly refused defendant's peremptory instructions. Tacitly recognizing the prejudicial error of the instructions heretofore discussed, appellant's counsel devote most of their brief to the contention that plaintiff failed to make a case at all and so the court should have directed a verdict for defendant. On the previous appeal, the Kansas City Court of Appeals held exactly to the contrary. Nomath Hotel Co. v. Gas Co., 204 Mo.App. 214. A much stronger case was made by plaintiff on the second trial, and this court has before it considerably more proof to sustain plaintiff's claim. Defendant misstates the effect of that decision. It did not deny but affirmed plaintiff's right of recovery. The reversal and remander was to permit introduction of the evidence about a previous fire at the Kansas City Club excavation, which was in the record, but had been withheld from the jury at the first trial because the allegations in the petition were considered too narrow. That decision is conclusive of defendant's liability. The question is res judicata. Choteau v. Gibson, 76 Mo. 38; Melvin v. Hoffman, 235 S.W. 107. (a) At the trial, notwithstanding that the evidence indisputably fixed natural gas as the cause of the explosion, defendant's counsel advanced theories of sewer gas, furniture polish and gasoline vapor as possible agencies. But in their brief they now abandon these other theories and affirmatively assert that their natural gas produced the explosion. (b) Defendant's effort to show that the gas escaped from a leak in one of plaintiff's house pipes or appliances was based on mere suspicion and was quickly dissipated by the proven facts. (c) The location of the explosion negatives any possibility of its having been caused by gas escaping from the service pipe at the range. (d) Plaintiff made a complete and convincing case of circumstantial evidence. Harshmann v. Gas Co., 83 Kan. 329; Nash v. Gas Co., 234 S.W. 360; Taylor v. Gas Co., 185 Mo.App. 537.
This suit was instituted in the Circuit Court of Jackson County by the plaintiff against the defendant to recover $ 12,500 damages sustained, caused by the alleged negligence of the defendant in permitting natural gas to escape from its pipes and into the basement of plaintiff's premises, which contained a restaurant known as the Pennant Cafe, which, in the transactions of the ordinary business of the cafe in the ordinary way, exploded and caused the damages sued for.
The trial resulted in a verdict and judgment for the defendant, and a motion for a new trial having been filed the court sustained the same for the reasons stated, that it had erred in giving defendant's instructions numbered 9 and 16, from which action of the court in sustaining said motion the defendant duly appealed the cause to this court.
The negligence charged in the second amended petition is in this language:
". . . negligently and carelessly caused and permitted a large quantity of natural gas to escape from the Baltimore Avenue and Thirteenth Street mains aforesaid at points within a radius of 400 feet from plaintiff's basements and also from the gas main, valve and valve box, pipes, piping and other conduits, so owned, operated and maintained by defendant in and under the east side of Baltimore Avenue aforesaid adjacent to the premises so occupied by the plaintiff, and to leak and seep from defendant's said mains, valve and valve box, pipes and pipe lines, through and into and around the said water pipes, valve, valve box and fire hydrant and thence through and around said water drain or waste pipe into plaintiff's basement, and also through the walls and foundations of said seven-story buildings in various places, so that such natural gas accumulated in the basement rooms so occupied by plaintiff, and particularly in said linen store room and office room, in sufficient quantities and so mixed with the air in said room as to be combustible and explosive."
The answer of the defendant to the first amended petition of the plaintiff in substance was:
First: A general denial.
Second: A plea of contributory negligence.
Third: Plaintiff negligently, and unlawfully, and in violation of Ordinance No. 8690 of Kansas City, Missouri, installed into its basement a gas pump or booster, and connected the same with the pipes of the defendant, and on account of that negligence and unlawfulness the gas, if any, was caused to escape from said pipes or pump, and was ignited by sparks generated from said pump or booster, and thereby caused the explosion.
Fourth That by reason of said negligence and unlawful conduct of the plaintiff in installing said gas pump or booster, the plaintiff unlawfully and wrongfully drew from the pipes more than its proportional part of the natural gas that was being furnished to the customers of Kansas City and thereby contributed to...
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