Okmulgee Gas Co. v. Kelly

• Decision Date: 30 September 1924
• Docket Number: Case Number: 13499
• Citation: 1924 OK 827,232 P. 428,105 Okla. 189
• Parties: OKMULGEE GAS CO. v. KELLY et al.
• Court: Oklahoma Supreme Court

1924 OK 827

232 P. 428

105 Okla. 189

OKMULGEE GAS CO. v. KELLY et al.

Case Number: 13499

Supreme Court of Oklahoma

Decided: September 30, 1924

Syllabus

1. Death -- Action for Wrongful Death--Negligence--Causal Connection.

In order for the plaintiff to make out his right of recovery for wrongful death, he must show a causal connection between the injury suffered and the negligence charged, and that the negligence was the wrong of the defendant.

2. Same--Necessary Parties Plaintiff.

In an action for wrongful death, in the absence of a surviving widow, or the appointment of a personal representative, the action must be brought by the next of kin. All persons of the next of kin are necessary parties.

3. Same--Measure of Damages.

The measure of damages for the wrongful death of another is the pecuniary loss suffered by the plaintiff, and includes anything of a monetary value to the plaintiff.

4. Same--Failure to Plead or Prove Pecuniary Loss--Dismissal or Instructed Verdict.

In an action by the next of kin for wrongful death if the petition fails to show a pecuniary loss suffered by any one of the plaintiffs, the court should sustain a motion by the defendant to dismiss the particular plaintiff from the action, or if the evidence fails to show that any plaintiff has suffered a legal loss, the court should sustain a motion for an instructed verdict against the particular plaintiff.

5. Same--Survival of Cause of Action for Benefit of Estate.

This rule does not apply in an action for an injury to the person, suffered in his lifetime. Such an action survives for the benefit of the estate, and any proceeds from the judgment are distributed to the next of kin, as other property of the estate.

6. Gas -- Landlord and Tennant--Inspection of Consumer's Pipes--Duty of Gas Company and Landlord.

Where a company in furnishing gas for domestic purposes lays its line, reasonably suited for the purpose, to the property line of the consumer, and the latter installs a pipe line to his residence, and equips the same for burning gas, no duty rests upon the gas company to inspect the pipe line and connections of the consumer, unless it has actual notice of defects. In relation to his tenant and persons rightfully on his property, the consumer owes the duty to inspect and maintain such pipe line and fixtures in his possession and under his control.

7. Same.

The gas company has the right, in the absence of actual notice, to rely upon the belief that the consumer will maintain the pipes and fixtures on his premises and under his control, in a reasonably safe condition to receive and use gas. Dependent upon this belief, the gas company is required to use care commensurate with the nature of the service, to cause the gas to pass through its pipe lines and the lines and connections of the consumer for the use of the latter.

8. Insufficiency of Evidence.

Record examined; held, that the evidence is insufficient to support the judgment in favor of the plaintiffs.

M. A. Breckenridge, Chas. K. Bostick, and Lee Daniel, for plaintiffs in error.

R. E. Simpson and Hummer & Foster, for defendants in error.

STEPHENSON, C.

¶0 C. W. Kelly and Margaret Z. Kelly, his wife, on December 20, 1919, were residing in the home of L. G. Agard in the city of Okmulgee, as the tenants of the latter. About 7 o'clock, in the morning of December 20th, an explosion from gas occurred in the part of the house occupied by and under control of Agard, which wrecked and destroyed the house. Mrs. Kelly received injuries from which it is alleged she died on February 12, 1920. The deceased left surviving, her husband and a brother and two sisters, adults, as her next of kin. These parties, as the next of kin, commenced theft action against the Okmulgee Gas Company, for the wrongful death of Mrs. Kelly. The petition does not allege that the brother and sisters were dependent upon the deceased for support. In the trial of the cause judgment went for the plaintiffs, and the defendant has appealed the cause to this court. Among the several proceedings had in the trial court and assigned as error here for reversal are: (1) Improper parties plaintiff; (2) error of the court in failing to sustain defendant's demurrer to the evidence of the plaintiffs; (3) the verdict of the jury is contrary to the evidence; (4) the verdict is contrary to law; and (5) error in giving certain instructions to the jury.

¶1 The Kellys occupied two front rooms, one of which was used as a bedroom and the other as a kitchen. There was a gas stove in the bedroom, and a gas range in the kitchen. The bedroom occupied by Agard was separated from the kitchen room by a board wall. There was a gas range in Agard's bedroom, and situated about four or five feet from the gas range in the kitchen of the Kellys. For cause of action, the plaintiffs alleged that at the time of and prior to the accident, Agard had in use a rubber hose connection to his gas stove, but it is not alleged that the defendant had notice of the use of the hose. It is alleged that the defendant caused an excessive and fluctuating pressure in the gas line serving the residence, which caused the rubber hose to loosen from its connections and permit gas to escape and fill Agard's room. On the morning in question, and without knowledge of the presence of gas, Agard arose and in attempting to light his gas range, ignited the gas in the room, which resulted in an explosion, wrecking the house and injuring Mrs. Kelly.

¶2 The evidence shows that the gas company received the gas from the fields into the city through a six inch steel pipe at a pressure of 75 pounds. The gas passed from the main through low pressure reducers into a two-inch service iron pipe, at a pressure of 12 ounces. The service lines were laid in the streets along by the residences for connection with the buildings by one-inch iron pipe. The gas company laid the one-inch iron pipe from the service line to a point just inside the curbing, to the property line of the consumer. The consumer made a connection by one-inch iron pipe with the gas company's line at the curbing, and extended the line into his residence, and there made the connection for use of the gas. The following ordinance was and had been in effect in the city of Okmulgee for some time prior to the accident:

"Rubber hose prohibited. It shall be unlawful for any person, firm or corporation, or gas fitter to connect any gas stove or heater for any purpose, with a rubber hose, or any other flexible connection. All connections must be iron pipe."

¶3 As relating to the accident, Kelly testified that he got up about 6 o'clock a. m. and first lighted the gas range in the bedroom. He went back to bed and soon heard the noise of the gas burning. The blaze of the stove was then burning several inches in height. He turned the burner down and continued to regulate the stove for some few minutes. He then passed through a door into the kitchen, where he lighted the gas range used for cooking. He had a similar experience with the range. Mrs. Kelly soon came into the kitchen and commenced the preparation of breakfast. Kelly gave his principal attention to the regulation of the burning of the fire in the kitchen range. Several of the neighbors living in that vicinity testified to similar experience with their stoves on the morning of the accident. Mrs. Blalock, whose residence was situated about 20 feet from the Agard home, testified that the gas range had burned in the living room of her home all night. That shortly after six o'clock the noise of the burning range attracted her attention and she went into the room and lowered the burner. She returned to bed and was probably asleep at the time of the accident so she testified. It was the purpose of the plaintiffs by this testimony to show that the defendant was using excessive pressure in supplying gas through its service lines. The plaintiff did not offer any testimony to show what effect, if any, the pressure had on the rubber hose connection, or other gas connections in the room occupied by Agard. From the evidence, apparently, iron pipe connections were used to connect the gas stoves in the homes testified about. No explosion from gas occurred in the vicinity of the Agard home, or in any other part of the city on the morning in question.

¶4 Plaintiff, Kelly, testified that just before the explosion he heard a roaring noise, which he took to be the gas range burning in Agard's room. Agard testified for the plaintiff, by deposition, that he had equipped his gas range with a rubber hose, and that the hose was in use at the time of the accident. He testified that on the morning of the accident he got up, and while standing about four feet from the gas range, he struck a match to light the stove, which resulted in the explosion. No testimony was offered by Agard or by any other person for the plaintiffs, to show the condition of the rubber hose or other connections at the time the explosion occurred. There was no testimony offered to show that the gas pressure was sufficient to, or did impair the connections or fittings to gas stoves in any of the homes in the vicinity of the Agard home.

¶5 The defendant offered evidence to show that it was customary to set the low pressure reducers at 12 ounces at five o'clock, in the winter time, and that the reducers had been set at that hour accordingly, on the morning of the explosion. We have rather tediously detailed the evidence in order to show clearly the duties owing by the defendant to the plaintiffs, and the breach of such duties, if any, and the relationship between and among the parties. Where the landlord retains control of a portion of the premises occupied by the tenant, the responsibility rests with the landlord to maintain such portion of the premises occupied by him in a reasonably safe condition, so that injury will not result to the tenant. Hinthorn v. Benfer, 90 Kan. 731, 136 P. 247, L.R.A. 1915-B, page 98; Grella v. Lewis Wharf...