North Texas Gas Co. v. Young

• Court: Texas Court of Appeals
• Writing for the Court: Walthall
• Citation: North Texas Gas Co. v. Young, 220 S.W. 254 (Tex. App. 1920)
• Decision Date: 29 January 1920
• Docket Number: (No. 1046.)
• Parties: NORTH TEXAS GAS CO. v. YOUNG et al.

220 S.W. 254

NORTH TEXAS GAS CO. v. YOUNG et al.

(No. 1046.)

Court of Civil Appeals of Texas. El Paso.

January 29, 1920.

On Motion for Rehearing April 8, 1920.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Action by Mrs. Maud Young and husband against the North Texas Gas Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Richard Mays and L. B. Cobb, both of Corsicana, and Thompson, Barwise, Wharton & Hiner and Geo. Thompson, Jr., all of Ft. Worth, for appellant.

Simkins & Simkins, W. J. Weaver, and Callicutt & Johnson, all of Corsicana, for appellees.

WALTHALL, J.

Mrs. Maud Young, joined by her husband, Thomas Young, appellees in this appeal, brought this suit in the district court of Navarro county, Tex., against North Texas Gas Company, appellant, for damages on account of personal injuries alleged to have been received by Mrs. Maud Young, expenses incurred for doctor's fees, medical services and expenses, and damages to personal property, all of which was alleged to have been the result of an alleged gas explosion occurring on the 17th day of November, 1917, which wrecked the house in which appellees resided. The case was submitted to the jury upon special issues, to which the jury returned their findings. We state only such outline of the facts alleged as to make apparent the issues presented.

Appellees alleged that on November 17, 1917, they were living in a rented house owned by Miss Annie Leighton, situated at the corner of North Eleventh street and West Second avenue, in the city of Corsicana, Tex.; that the previous occupants of said house were consumers of gas and patrons of appellant, but that when the previous occupants moved out of said house the gas meter was taken out by appellant, and that in taking out the meter from underneath the house appellant, acting through its employés, negligently left the service pipe disconnected from other house pipes, and leaving same in such condition that it leaked gas, which on November 17, 1917, congregated and became confined underneath the said house, which was boarded up on all sides, and that the gas became ignited through coming in contact with a lighted match struck by one of appellee's small children while attempting to light a kerosene lamp; that the resulting explosion of the gas wrecked the Leighton house, in which appellees were living, causing the injuries to Mrs. Maud Young of which they complain and the damage to the personal effects situated in the house.

It was alleged that, for the purpose of cutting off the gas from said premises, appellant has a curbcock or cut-off at or near the street curb where the service pipe was connected with the main pipe line when the use of gas upon said premises had been discontinued; that when appellant removed its meter and disconnected said house from the use of gas it was the duty of appellant to cut off said gas at the stopcock at the street curb in order to prevent gas from going through the service pipe, which appellant failed to do, but allowed the gas to go from the gas mains through the cut-off and into the service pipe, and such failure appellee assigned as negligence and the proximate cause of the explosion and the injuries to Mrs. Young and the damages to the personal property complained of; also that it was appellant's duty on removing the meter to sufficiently plug or stop up the end of the service pipe and to keep the end of the service pipe plugged or stopped up so as to prevent gas from passing from the service pipe and under the house, which appellant negligently failed to do, and appellee assigned such failure as negligence and the proximate cause of the explosion and damages complained of. Appellee also alleged that appellant was negligent in failing to properly inspect the cut-off at the curb and the service pipe leading from the curb through the premises and under the house, and see that gas did not leak and get through and become impounded and pocketed under the house; that by a proper inspection of the cut-off and service pipe appellant could have discovered the escape of gas and have prevented same.

Appellant answered by general demurrer, special exceptions, general denial, and pleaded that appellees and each of them were guilty of negligence, which was the proximate cause of the injuries and damages alleged to have been sustained by them. The fact constituting the contributory negligence is alleged to be that appellees knew or should have known that gas was escaping from the pipes, and that the use of fire might result in an explosion, but permitted the use of fire, and that same was the proximate cause of the explosion. After much evidence was heard the court defined ordinary care, contributory negligence, and proximate cause, and submitted the case to the jury on special issues. The issues submitted and the jury's answers thereto are as follows:

First. "Did gas escape from the stopcock or cut-off at or near the street curb adjacent to the Leighton property and pass through the end of the service pipe leading under the house occupied by plaintiff on November 17, 1917?" The jury answered "Yes."

Second: "If you have answered question first in the affirmative, then you will answer this question: Did the gas which escaped from said stopcock or cut-off and passed through the end of said service pipe, if it did, become ignited and cause the explosion on November 17, 1917?" The jury answered "Yes."

Third. "What agency caused the explosion on November 17, 1917?" The jury answered, "Gas."

Fourth. "Was the explosion brought about by any agency other than gas? You are instructed in connection with question fourth that in dealing with this question you will answer `Yes,' unless the preponderance of the evidence shows you that it was gas that caused the explosion." The jury answered "No."

Fifth. "If you have answered question first and question second in the affirmative, then you will answer this question: Was the ignition and explosion of gas, if any, the proximate cause of the injury, if any, to Mrs. Maud Young?" The jury answered "Yes."

Sixth. "If you have answered question fifth in the affirmative, then you will answer this question: Was the ignition and explosion of gas, if any, the proximate cause of the damage, if any, to personal property belonging to Mrs. Maud Young, situated in said house?" The jury answered "Yes."

In response to questions seventh, eighth, and ninth the jury assessed the damages for personal injuries to Mrs. Maud Young at $5,000, the damage to the personal property at $50, and the expense incurred for the doctor's bill on account of the injury at $58.

Tenth. "Did Mrs. Maud Young, before the explosion occurred, know that gas was escaping or was in or about the house?" The jury answered "No."

The jury made no response to questions eleventh, twelfth, thirteenth, fourteenth, and fifteenth.

Sixteenth. "Did Wiley Smith cut off the gas at the stopcock or cut-off at or near the street curb adjacent to the Leighton property on September 14, 1917?" The jury answered "Yes."

Seventeenth. "Did Ben Zimmerman, at the time he detached the meter under the Leighton house on September 14, 1917, plug up the end of the supply pipe under the house so as to prevent the escape of gas therefrom?" The jury answered "No."

Eighteenth. "At the time Ben Zimmerman detached the gas meter under the Leighton house, was the gas then escaping through the supply pipe?" The jury answered "No."

Nineteenth. "If you find there was gas under the Leighton house at the time of the explosion then you will answer this question: From whence did the gas come?" The jury answered, "From the main through the stopcock."

Twentieth. "To whom did the supply pipe leading from the stopcock or shut-off at or near the street curb adjacent to the Leighton property belong?" The jury answered, "Leighton."

Upon the above findings of the jury the court rendered judgment for appellee for the sum of $5,108, from which appellant prosecutes this appeal. Appellant presents nine assignments of error.

Appellees object to a consideration of the assignments of error and propositions thereunder, on the ground that the matters therein presented and discussed thereunder are not supported by appellant's pleadings; the contention being that the general denial and the plea that appellees' contributory negligence was the proximate cause of the injuries did not raise the issue of an intervening act or agency as an answer and defense to appellees' suit charging the several acts of negligence; that, if appellant is satisfied to simply deny the case as pleaded and seeks to disprove same, he may rest upon the denial, but that, when appellant relies upon any special matter of defense to defeat the cause of action, it should allege and prove same; that, when appellees have made out a prima facie case, the burden then of establishing special defenses, such as an intervening proximate act, cause, or agency which would defeat such prima facie case, shifts to appellant so relying upon such special defense. We are referred by appellees to Moody & Co. v. Rowland, 100 Tex. 363, 99 S. W. 1112; Willis & Bros. v. Hudson, 63 Tex. 678; Smothers v. Field, 65 Tex. 435; Winn v. Gilmer, 81 Tex. 345, 16 S. W. 1058; Farmers' National Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966. The question presented is based upon and grows out of the provision of the statute requiring that the pleading shall consist of a statement, in logical form, of the facts constituting the plaintiff's cause of action, or the defendant's ground of defense.

Had a judgment here been rendered for appellant upon a finding of the jury or of the court of some intervening act or cause accounting for the ignition and explosion of gas under the house, though a proximate cause, but if not attributable to any negligent act of appellees', as pleaded, such judgment rendered upon such findings upon evidence admitted under a general denial could...