Wall v. Kansas City Gas Co

• Decision Date: 05 December 1921
• Docket Number: No. 14135.,14135.
• Citation: 235 S.W. 161
• Parties: WALL v. KANSAS CITY GAS CO.
• Court: Missouri Court of Appeals

235 S.W. 161

WALL v. KANSAS CITY GAS CO.

No. 14135.

Kansas City Court of Appeals. Missouri.

December 5, 1921.

Appeal from Circuit Court, Clay County; Ralph Hughes, Judge.

"Not to be officially published."

Action by Anna Wall against the Kansas City Gas Company. From a judgment for plaintiff, defendant appeals. Reversed.

Martin E. Lawson and Simrall & Simrall, all of Liberty, and Charles M. Miller, of Kansas City, for appellant.

Claude Wilkerson, of Sedalia, and Bruce Barnett, of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $7,500 for the alleged negligent killing of her husband and personal injuries to herself. Defendant has appealed.

The facts show that on or about October 1, 1917, plaintiff, her husband, and their baby moved into a one-story, five-room frame cottage, located at 5215 Scarritt avenue, Kansas City, Mo. These premises were piped and equipped for the use of gas. The defendant is a corporation distributing natural gas in Kansas City, Mo., owning pipes and equipment in the streets of the city, and delivering gas to house supply pipes on private premises from their street mains by the opening of a stopcock at the curb in the street. Shortly after moving into the premises plaintiff's husband contracted with the defendant for the use of gas on the premises and the same was turned on. The pressure became so poor that plaintiff's husband desired to have the gas discontinued, and at the request of her husband plaintiff, a few days prior to January 2, 1918, called the gas company over the phone and ordered the gas discontinued. On the day mentioned she saw two of defendant's employés with a long rod working at the stop box where the stopcock was situated in the street. Shortly these workmen came to her door and notified her that the gas had been turned off. About 5 a. m. of January 5, 1918, plaintiff's husband arose from his bed, where his wife and child were lying, and struck a match. Immediately there was an explosion, resulting in the death of plaintiff's husband and their child and injury to plaintiff's person. The room into which one entered through the front door of the house was the living room; to the right of this was the bed room, in which the explosion occurred; to the rear of the living room was the dining room, and to the right of the latter room was the kitchen. The living and bed room and the former and dining room were joined by large double openings that had no doors.

After the explosion there was found in the corner of the living room, near the opening into the bed room, a riser, consisting of a gas pipe extending through the floor to a point a few inches above it. Across the top of this pipe was another one, forming a T or ell. One end of this T was closed; the other was open and had a bushing in the end. A brown rag was hanging in the open end of the T, indicating that this end had been stopped up with the rag. The premises showed evidences of the force of the explosion occurring at this T. Neither plaintiff nor her husband had installed this T or ell, nor had they removed any cap or done any work, or tampered with or molested the gas pipes and appliances in any way. They had no knowledge of the condition of the ell. They were using electricity for lighting purposes at the time of the explosion, but had used the gas jets before. There was evidence that, if the stopcock was not entirely turned off, gas would flow through.

Plaintiff's theory as to what caused the accident was that the employés of the gas company failed to turn the stopcock far enough to completely shut off the gas, and that the gas seeped into the service pipes of the house. To use plaintiff's words:

* * * That before Mr. and Mrs. Wall moved into this cottage this T had been stopped up with a brown rag so tightly that it prevented the flow or escape of gas at all times when gas was being used in the house that is, before it was ordered disconnected. That obviously during the particular night preceding this explosion there was an increased pressure sufficient to enable the gas to seep its way through this bushing, and the brown rag was found hanging partly out of the open T; and the jury has concluded, as the plaintiff contended, that the force of the explosion blew out this rag."

The petition was in three counts. The first one was for $10,000 for the death of plaintiff's husband; the second, for $10,000 for the death of the child; and the third, for $75,000 for injuries to the person of plaintiff. There was a verdict and judgment in the sum of $4,000 on the first count, $3,500 on the third count, and plaintiff took an involuntary nonsuit on the second. The negligence alleged in all of the three counts is the same, and is that plaintiff had notified the gas company to disconnect the gas main from the house pipes; that defendant's servants undertook to cut off and disconnect the gas from the house by closing and turning the stopcock, but carelessly and negligently failed to turn the stopcock to the "extent or distance necessary to close or shut the same, and in such manner carelessly and negligently left said cock or turn valve in such position as to permit the flow and escape of gas from said pipe into said house"; that it was the custom of the defendant to notify persons in the house when the gas was shut off, and that defendant's agents did so notify plaintiff and her husband; and that plaintiff and her husband believed and relied upon this information and "were deceived thereby."

Defendant requests that this case be transferred to the Supreme Court on the ground that the amount involved exceeds our jurisdiction. The contention is that the amount involved is the $7,500 recovered, plus the $10,000 claimed in the second count, as to which an involuntary nonsuit was taken over defendant's objection. Defendant urges in its brief that the court erred in permitting the taking of this nonsuit. It is defendant's contention that plaintiff sued for all of her damages in one suit, and that her action for damages is one and indivisible; that plaintiff could not split up...