Raftery v. Kansas City Gas Co.

• Decision Date: 01 February 1943
• Citation: 169 S.W.2d 105,237 Mo.App. 427
• Parties: John J. Raftery, Jr., a Minor by his Father and Next Friend, John J. Raftery, Appellant, v. Kansas City Gas Co., a Corporation, Respondent
• Court: Kansas Court of Appeals

169 S.W.2d 105

237 Mo.App. 427

John J. Raftery, Jr., a Minor by his Father and Next Friend, John J. Raftery, Appellant, v. Kansas City Gas Co., a Corporation, Respondent

Court of Appeals of Missouri, Kansas City

February 1, 1943

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Affirmed.

Homer A. Cope, Cope & Hadsell, John C. Pohlmann and Walter A. Raymond for appellant.

(1) The court erred in refusing to admit testimony of admissions of respondent's employee made in the scope of his employment while he was engaged in servicing the water heater. Fisher v. Pullman Co., 212 Mo.App. 280, 254 S.W 114, 115; State ex rel. S.S. Kresge Co. v. Shain, 340 Mo. 143, 101 S.W.2d 14, 16; Henry v. First Nat. Bank of Kansas City, 232 Mo.App. 1071, 115 S.W.2d 121, 133. (2) The court erred in excluding expert testimony as to the cause of the explosion. Combs v. Roundtree Const Co., 205 Mo. 367, 104 S.W. 77, 83; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311, 317; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950, 957; Kelly v. St. Louis & S. F. Ry. Co., 215 Mo. 567, 114 S.W 1013, 1020-1022; Edmondson v. Hotel Statler Co., 306 Mo. 216, 267 S.W. 612, 617; Carroll v. Mo. Power & Light Co., 231 Mo.App. 265, 96 S.W.2d 1074, 1079; Plater v. W. C. Mullins Const. Co., 223 Mo.App. 650, 17 S.W.2d 658, 667. (3) The court erred in refusing to admit testimony of the expert witness, Frank F. Davidson, to the effect that only a stoppage in the flue could cause gas to accumulate in the burning chamber in sufficient quantity to cause an explosion. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950, 957. (4) The court erred in refusing to admit the testimony of plaintiff's expert witness, Frank F. Davidson, that in his opinion the pilot light was extinguished and gas caused to accumulate in the burning chamber because of a gradual accumulation of soot in the flue which shut off the ventilation. See cases cited under Points (2) and (3), supra. (5) The court erred in refusing to admit testimony of plaintiff's expert witness, Frank F. Davidson, to the effect that a reasonably careful inspection of this water heater and flue two weeks before this explosion would have revealed the stoppage in the flue and the danger therefrom. Combs v. Roundtree Const. Co., 205 Mo. 367, 104 S.W. 77, 84. (6) The court erred in holding the competent, relevant and material evidence offered by the plaintiff did not make a submissible case for the jury as to defendant's negligence. Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311, 317; Weigel v. Reintjes, 154 S.W.2d 412, 416; State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97, 102; Messmer v. St. Louis County Gas Co., 42 S.W.2d 963, 965. (7) The court erred in holding plaintiff was guilty of contributory negligence as a matter of law. Roland v. Anderson et al., 282 S.W. 752, 753, 754; Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158, 165.

Charles M. Miller for respondent.

(1) The trial court did not err in refusing to admit in evidence alleged statement of the employee of the Gas Company as to the cause of the alleged explosion. The service man is not employed to give opinions involving alleged liability and is not acting within the scope of his authority, if he does so, and such is not binding upon his master, the Gas Company. Kane v. Mo. Pac. (Mo. App.), 157 S.W. 644, 651; Moran v. Brown, 27 Mo.App. 487, 491; Shelton v. Wolf Cheese Co. (Mo. App), 93 S.W.2d 947, 953; Henry v. First Natl. Bank (Mo. App.), 115 S.W.2d 121, 133; St. Charles Sav. Bank v. Denker (Mo.), 205 S.W. 208; Cross v. Northern Central Coal Co. (Mo. App.), 186 S.W. 528. (2) The trial court did not err in excluding the testimony of plaintiff's witness, Mr. Davidson, as an expert, for the reasons, first, that no proper hypothetical question was put to him, and, second, his answer thereto and the offer of proof was a mere conclusion and the result of speculation and conjecture, Davidson having specifically stated there were other reasons than the one he purported to give, which could have caused the pilot light to go out. 22 C. J., p. 640, sec. 735; B. & O. Ry. v. Tindall, 47 F.2d 19, 20; DeDonato v. Wells (Mo.), 41 S.W.2d 184, 187; Vitale v. Duerbeck (Mo.), 92 S.W.2d 691, 695; Miller v. Gillick, 66 Mo.App. 500; Kimmie v. Terminal Ass'n (Mo.), 66 S.W.2d 564. (3) The act of plaintiff, in attempting to light the pilot light without taking the necessary precautions to air out the heater, was the proximate cause of the alleged explosion, irrespective of whether it was negligence of plaintiff. Wall v. Kansas City Gas Co. (Mo. App.), 235 S.W. 161, 163; Logan v. Wabash, 96 Mo.App. 461, 70 S.W. 736; Taylor v. Gas Co. (Mo. App.), 67 S.W.2d 107, 109. Plaintiff was guilty of negligence as a matter of law in attempting to light the heater without first ascertaining that it was safe to put a lighted match in the burner chamber for the purpose of lighting it. Payne v. C. & A. R. R. Co. (Mo.), 136 Mo. 562, 38 S.W. 308; Shields v. Costello (Mo. App.), 229 S.W. 411; Battles v. United Rys., 178 Mo.App. 596, 161 S.W. 614; Herdt v. Koenig, 137 Mo.App. 589, 119 S.W. 56; Henry v. Railroad, 141 Mo.App. 351, 125 S.W. 794; Bagby v. Kansas City (Mo.), 92 S.W.2d 142.

OPINION

Cave, J.

This is a suit instituted by appellant (plaintiff below) against respondent (defendant below) to recover damages for personal injuries suffered by appellant as a result of alleged negligence of respondent. At the close of appellant's evidence, the trial court marked "given" an instruction in the nature of a demurrer offered by respondent at which time appellant took an involuntary nonsuit with leave to file motion to set same aside, which was done and said motion was overruled and appeal duly taken.

Plaintiff's petition alleged "that he was a minor, then twelve years of age . . .; that the defendant was engaged in transporting and selling natural gas in Kansas City, Missouri; that defendant sold gas appliances including automatic hot water heaters; that in connection with its said business defendant maintained a department for inspecting and servicing gas appliances; that the gas automatic hot water heater . . . where plaintiff lived with his parents failed to properly function; that defendant's inspector and repairman inspected said water heater and attempted to repair the same and reported the water heater would function properly and was safe to use; that the light under the water heater went out and plaintiff lighted a match to light the same when gas which had escaped and accumulated in the water heater exploded and burned and seriously injured the plaintiff; that said explosion and plaintiff's injuries were caused by the negligence of defendant's service man: (a) in failing to properly test said water heater as to draft to keep it lighted and to prevent gas accumulating in the water heater; (b) in failing to clean the flues of the water heater to insure sufficient draft; (c) and in neglightly assuring plaintiff's parents that the water heater would function properly and was safe to use."

Defendant's answer consisted of a general denial and plea of contributory negligence.

The evidence discloses that at the time of the explosion on May 11, 1940, appellant was a boy eleven years and four months of age. He lived with his parents in the upper part of a duplex apartment. In the basement was an automatic gas water heater, the pilot light of which had gone out two or three times prior to the date of the explosion. On such occasions appellant's mother would call respondent and it would send one of its service men to service the heater. The last time this occurred was some two weeks before the date of injury, at which time she heard him "tinkering in the basement" and he came upstairs and told her "it was all right and ask me to sign a slip he had." There was no further trouble with the heater until the day of the injury.

About 5:30 P. M. on May 11th, appellant's father attempted to use the hot water and found it was cold, and told appellant to go down and see if the heater was lighted. He went to the basement and opened a small door at the bottom of the heater and saw no light, and thought the gas was off and that he could light the pilot burner without danger. He lighted a match and when he brought it near the small door there was an explosion, burning his hands and face. He testified that he had never before attempted to light the heater; did not know where the valves were and did not look to see if the gas was turned on. He had lighted the gas stove in the kitchen and had learned at school that bringing a lighted match in contract with escaping gas would likely cause an explosion.

The hot water heater is described as a round boiler about five feet six inches in height and fifteen inches in diameter, with forty gallons capacity. To heat the water, there is attached a heater at the bottom of the boiler and gas enters through a burner; there is a thermostat in the center of the boiler which regulates the heat of the water. When the water is cold, the thermostat automatically opens and allows the gas to pass into and through the burner, which is ignited by a small pilot light immediately adjacent thereto. When the water is hot, the thermostat automatically shuts off the gas to the burner, but the pilot light continues to burn; it is not attached to the thermostat and is supposed to burn all the time so as to ignite the gas passing through the burner. In about the center of the boiler, and extending from the bottom to the top, is a flue about four inches in diameter; this permits the heat and fumes to pass up through this flue; attached to the top of that flue is a pipe leading to the main chimney or pipe of the house.

Plaintiff's petition alleged specific negligence as above...