Staff v. Mont. Petroleum Co.

• Decision Date: 29 September 1930
• Docket Number: No. 6645.,6645.
• Parties: STAFF v. MONTANA PETROLEUM CO.
• Court: Montana Supreme Court

88 Mont. 145

STAFF
v.
MONTANA PETROLEUM CO.

No. 6645.

Supreme Court of Montana.

July 19, 1930.
Rehearing Denied Sept. 29, 1930.

Appeal from District Court, Fallon County; Stanley E. Felt, Judge.

Action by E. Mildred Staff against the Montana Petroleum Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Loud & Leavitt, of Miles City, and C. J. Dousman, of Baker, for appellant.

D. R. Young, of Baker, and Murphy & Whitlock, of Missoula, for respondent.

FORD, J.

This action was brought by plaintiff against defendant to recover damages for personal injuries alleged to have been sustained by her from burns resulting from an explosion of natural gas.

The complaint alleges that defendant is a public utility engaged in furnishing natural gas for use in the city of Baker; that plaintiff owned and resided in a residence located in Baker, equipped for the use of natural gas furnished by defendant through mains owned by it; that gas was conveyed from defendant's mains into the cellar underneath her residence through service pipes belonging to her; that the meter used for measuring the gas consumed was located in plaintiff's cellar and belonged to defendant. It is alleged that on the 27th day of October, 1928, a large amount of natural gas from the supply furnished by defendant had escaped into plaintiff's cellar, and on that day one Livingston, a servant and employee of defendant, came to plaintiff's house for the purpose of reading the meter; that, while there, plaintiff reported to him that the cellar was full of gas, and pursuant to the information he went to the cellar to discover the cause for the presence of gas and shortly thereafter was followed by plaintiff, both carrying flashlights; that it was the custom and practice of defendant, when escaping gas was reported, to investigate the source thereof and, if it escaped from the meter or other equipment of defendant, to repair the same; that when plaintiff reached the cellar she found Livingston standing in front of the meter examining the same; and that he thereupon negligently and carelessly lighted a match, causing the gas, which was inflammable, to ignite and explode, and as result plaintiff suffered the injuries described in detail.

Defendant denies that it was its duty or custom to investigate the source of escaping gas, and alleges that gas was furnished to plaintiff in accordance with its printed regulations approved by the Public Service Commission of the state and made a part of plaintiff's contract; denies that any gas had escaped into plaintiff's cellar; and denies that Livingston had any authority to make any investigation as to escaping gas, if any had escaped, or to make any inspection of the service pipe of plaintiff; and alleges that the sole duty of Livingston at the time was to read meters, and that if he went into plaintiff's cellar he did so at the request of plaintiff and was not at that time in the employ of defendant; his general employment by defendant is admitted. The allegations of the complaint as to the nature and extent of the injuries are denied.

Defendant sets up two affirmative defenses. In one it is alleged that before natural gas is furnished, an agreement or application is made by the consumer whereby the terms and conditions under which gas shall be sold, and the duty and liability of defendant in connection with the distribution and sale of gas, are set forth, and that plaintiff executed such an application which was in force and effect at the time of the accident; that if there was any gas in plaintiff's cellar it had resulted from her fault in failing to discharge the obligation imposed under the application or contract to keep the service pipes in a proper state of repair; and that its presence in the cellar did not result from any negligence upon the part of defendant. In the second affirmative defense it is alleged that if Livingston went into the cellar for the purpose of detecting a leak, he did so at the request of plaintiff and at the time of the explosion was employed by her and was not in the employ of defendant.

Issue was joined by reply, and trial was had by jury, which resulted in verdict and judgment for plaintiff in the sum of $15,700.40; defendant's motion for a new trial was denied, and it appeals from the judgment.

It is contended by defendant: (1) That there is not any evidence showing, or tending to show, that Livingston was at the time of the explosion acting within the scope of his employment; (2) that under the evidence it appears that the gas escaped into plaintiff's cellar from her service pipes, which defendant owed no duty to inspect or repair, and that plaintiff's failure to keep the service pipes in repair was negligence upon her part and caused or contributed to the damage; (3) that plaintiff was guilty of contributory negligence in going into the cellar immediately before the explosion; (4) that the verdict is excessive; and (5) that the court erred in its instructions to the jury.

1. We undertake a consideration of the question of the insufficiency of the evidence having in mind the well-established rules that upon a motion for a nonsuit or directed verdict, the evidence must be viewed from the standpoint most favorable to plaintiff, and that every fact must be deemed to be proven which the evidence tends to prove (Rau v. Northern Pacific Ry. Co. [Mont.] 289 P. 580, decided June 12, 1930; Chowning v. Madison Irr. Co., 84 Mont. 494, 276 P. 946;Robinson v. F. W. Woolworth Co., 80 Mont. 431, 261 P. 253), and that “no cause should ever be withdrawn from the jury unless the conclusion from the facts necessarily follows as a matter of law that no recovery can be had upon any view which reasonably can be drawn from the facts which the evidence tends to establish” (Pyles v. Melvin Armstrong, 84 Mont. 338, 275 P. 753, 755;Boyd v. Great Northern Ry. Co., 84 Mont. 84, 274 P. 293;Puutio v. Roman, 76 Mont. 105, 245 P. 523); and although the evidence may have been insufficient at the close of plaintiff's case, if defendant has supplied the deficiency, no error was committed. “By failing to stand upon its motion for nonsuit, defendant assumed the risk that its own evidence might aid plaintiffs' case.” Pure Oil Co. v. Chicago, M. & St. P. Ry. Co., 56 Mont. 266, 185 P. 150, 151;Slack v. Brown, 61 Mont. 99, 201 P. 565;Burden v. Elling State Bank, 76 Mont. 24, 245 P. 958, 46 A. L. R. 906;Liston v. Reynolds, 69 Mont. 480, 223 P. 507. If there is substantial evidence to support the judgment, it will not be set aside upon the ground of insufficiency, even though the evidence is conflicting. Chowning v. Madison Irr. Co., supra; Robinson v. F. W. Woolworth Co., supra; Independent Milk & C. Co. v. Ætna Life Ins. Co., 68 Mont. 152, 216 P. 1109.

The evidence shows that two or three days prior to the 27th day of October, 1928, plaintiff detected an odor in the cellar and kitchen, and, as it became more pronounced, she concluded it was caused by escaping gas. During the morning of that day Livingston, an employee of defendant, came to her residence to read the meter and went to the cellar where it was located. After reading the meter he returned to the kitchen and was told by plaintiff that there was a leak of gas; “that the...