The Coffeyville Mining and Gas Company v. Carter
| Decision Date | 08 November 1902 |
| Docket Number | 11,986 |
| Citation | 65 Kan. 565,70 P. 635 |
| Parties | THE COFFEYVILLE MINING AND GAS COMPANY v. LULU CARTER, as Administratrix, etc |
| Court | Kansas Supreme Court |
Decided July, 1902.
Error from Montgomery district court; A. H. SKIDMORE, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. PRACTICE, DISTRICT COURT -- Judgment on Opening Statement. It is not error to deny a motion for judgment based upon the opening statement of plaintiff's case to the court and jury, unless such statement admits the existence of facts which absolutely precludes a recovery by plaintiff.
2. ACTION FOR DEATH -- Measure of Damages. In an action for damages for death by wrongful act, it is proper to receive evidence of whatever facts made the life of the deceased of pecuniary value to the survivors entitled to sue and recover damages for the death, including the ability of deceased to earn money or accumulate property; his disposition to contribute support; his condition of health the probable duration of his life; and also the number, age, sex, health or condition in life of his surviving children dependent on him for care, support, education, and maintenance.
3. ACTION FOR DEATH -- Findings Construed. Findings of jury examined, and held to authorize neither a judgment in favor of defendant as against the general verdict, nor the granting of a new trial.
H. C. Dooley, V. W. Moore, and A. M. Etchen, for plaintiff in error.
A. B. Clark, and J. D. Brown, for defendant in error.
OPINION
This action was brought by Lulu Carter, daughter, and administratrix of the estate, of David Carter, a widower, deceased, against the Coffeyville Mining and Gas Company, to recover damages for the death of deceased by wrongful act. The facts necessary to a determination of this controversy are, in substance, as follows: Defendant put down and was the owner of a natural-gas well on lot 14, block 62, in the city of Coffeyville. East of this gas-well about fifty feet there was erected a two-story brick building. Immediately south of this building, and adjacent thereto, stood a small frame building used as a blacksmith shop. David Carter was a blacksmith, and, on the 21st day of May, 1896, was working at his trade in this shop. By reason of defects in the materials used, or the manner of construction of the gas-well, gas escaped therefrom through crevices in the earth to a cellar or basement underneath the brick building. This accumulated gas, from some cause unknown, was exploded, which explosion demolished the brick building and threw the south wall thereof upon the frame blacksmith shop, instantly killing Carter.
There is much testimony in the record tending to show that, at the time the brick building was constructed, and thereafter, gas from the well escaped through crevices in the earth into the bottom of the cellar; that the water in drinking-wells in the vicinity of this gas-well, free from gas before the boring of the well, afterward became contaminated by gas and unfit for use. The cellar, or basement, under the brick building was rented by one Irwin, and had been closed for about ten days prior to the death. Matches had been lighted therein the day preceding the accident without harm. At the time of the explosion, Irwin had gone to the cellar with some colored help, to carry out water therefrom. The explosion followed upon opening the cellar door.
At the trial there were verdict and judgment for plaintiff. The jury, upon request of defendant, also made special findings of fact. Defendant brings error.
Many assignments of error are urged upon our attention. We shall examine separately only such as we deem of sufficient importance to merit special attention. It is first contended that there was error in denying the motion of defendant for judgment on the statement of the case to the court and jury, made by counsel for plaintiff. This court has held that, where the opening statement of counsel for plaintiff, made to the court and jury, contains an admission of facts which absolutely precludes a recovery by plaintiff, the court is warranted in acting upon such admission and entering judgment against plaintiff. (Lindley v. A. T. & S. F. Rld. Co., 47 Kan. 432, 28 P. 201.) Is the rule applicable to this case?
The contention of counsel for plaintiff in error is based upon two grounds: (1) Counsel for plaintiff, in his opening statement, admitted that the manner in which the gas in the cellar of the brick building became ignited was unknown to plaintiff; (2) the acts of negligence relied upon for recovery are set forth in an amended petition, filed more than two years after the death of Carter, and it is claimed that the cause of action for such negligence was barred by the statute of limitations. As to the second ground, little need be said. Defendant did not raise the question of the statute of limitations either by demurrer or answer to the amended petition. The cause of action set forth in the amended petition is merely an enlargement on that stated in the original petition. It is the same cause of action, and was not barred by the two-year limitation found in section 422 of the code (Gen. Stat. 1901, § 4871). ( Railway Co. v. Ludlum, 63 Kan. 719, 66 P. 1045.)
As to the first ground, it is argued by counsel for plaintiff in error that the proximate cause of the death of Carter was the ignition of the accumulated gas in the cellar, and not in permitting the gas to escape from the well and accumulate in the cellar, and, in consequence, that the admission made by counsel for plaintiff in the opening statement of her case to the court and jury is an admission of want of knowledge and lack of proof upon a vital issue of fact, fatal to a recovery, and warranted the court in entering judgment thereon. To this contention we do not agree. Defendant was employing for its profit a subtle and highly explosive agency. The rule at common law is that, where an agent so introduced is controllable by care, attention, or science, he who receives the benefit must assume the responsibility. There was not pleaded, nor was an attempt made to show, contributory negligence on the part of deceased. In this condition of the record, it was wholly immaterial how the gas became ignited. In Koelsch v. The Philadelphia Co., 152 Pa. 355, 25 A. 522, 34 Am. St. Rep. 653, 18 L. R. A. 759, it was held:
"The fact that an explosion of gas which has accumulated in a cellar by negligence of a gas company was caused by the act of a third person in lighting a match will not relieve the gas company from liability." (See, also, Kansas City v. Gilbert, ante, page 469, 70 P. 350.)
The motion for judgment was properly overruled.
The next claim of error arises upon the reception of testimony and especially that of plaintiff, a witness in her own behalf, wherein she was permitted to state that she was, and for years had been, in bad health, and that her father was kind and affectionate toward her and his other...
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