Warfield Natural Gas Co. v. Clark's Adm'x

• Citation: 257 Ky. 724,79 S.W.2d 21
• Parties: WARFIELD NATURAL GAS CO. v. CLARK'S ADM'X.
• Decision Date: 18 December 1934
• Court: Court of Appeals of Kentucky

79 S.W.2d 21

257 Ky. 724

WARFIELD NATURAL GAS CO. v. CLARK'S ADM'X.

Court of Appeals of Kentucky

December 18, 1934

Rehearing Denied March 12, 1935.

Appeal from Circuit Court, Boyd County.

Action by Nancy Clark, as administratrix of the estate of Harry Arthur Clark, deceased, against the Warfield Natural Gas Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Dysard & Tinsley, of Ashland, for appellant.

Martin & Smith, of Catlettsburg, and P. H. Vincent, of Ashland, for appellee.

CREAL Commissioner.

Nancy Clark, mother of Harry A. Clark, deceased, as administratrix of his estate, recovered judgment against the Warfield Natural Gas Company, a corporation, hereinafter referred to as the gas company or appellant, for $11,500 damages for his death alleged to have been caused by the wrongful, willful and negligent act of the gas company in cutting off and discontinuing the supply of natural gas at the home of the administratrix, and the gas company is appealing.

Appellant traversed the allegations of appellee's petition, and in a second paragraph set out at length Mrs. Clark's application to it for gas to be furnished to her residence which was accepted by it. Under a provision in the application, it and the printed rules and regulations on the reverse side thereof constituted the contract between the parties. It further alleged that, because of Mrs. Clark's delinquency and nonpayment of bills rendered for gas furnished, after proper notice and demand had been made, it shut off the gas and discontinued service to her, as it was authorized to do by the provisions of the contract.

By reply, appellee denied the affirmative allegations of the answer, and alleged that appellant rendered a bill in excess of the amount actually due for gas furnished under the contract, and, because of nonpayment of the excessive bill wrongfully cut off the gas as alleged in the petition.

In an amended answer, appellant pleaded that appellee's intestate was guilty of contributory negligence in remaining in his mother's home knowing that the supply of gas had been cut off, and that his sickness and death resulted as a direct and proximate result of such negligence upon his part and but for which it would not have occurred. By an agreed order, it was stipulated that the amended answer and the affirmative matter in the reply stand controverted of record.

The application made by Mrs. Clark and accepted by the company reads:

"Clark, Nancy

"Application for Gas for Domestic Purposes

To Warfield Natural Gas Co.

"I hereby apply for natural gas by meter at 106 31st St., Ash. Ky. occupied as Res. which gas I agree to use at my own risk, and to pay for the same at the rate published from time to time for the district in which said premises are situated, until you shall have written notice from me to discontinue the supply.

"This application when accepted by you, shall, together with your present rules and regulations, printed on the reverse side hereof, and such other reasonable rules and regulations as may hereafter be adopted by you, constitute a contract between you and the undersigned applicant. Accepted:

"C. G. Fizer [Signature] Nancy Clark

"Meter Order No. 27682 Amount of Deposit. ___

"Guarantee No. 36467 Deposit No.

"Mrs. A. C. Dennis--108--31st St."

So much of the printed rules and regulations on the reverse side of the application as is pertinent reads:

"3. The amount payable for the gas furnished during each month shall be due on the first day of the following month and unless paid on or before the 15th of such month the gas will be shut off without further notice. In the event service is discontinued during any month, the amount payable shall be due immediately upon such discontinuance.

"4. When the published rates in any district provide for a discount for payment of bills on or before the 10th day of the month, and such 10th day falls upon a Sunday or Legal Holiday, then bill paid on the following day will be subject to such discount."

"7. The Company reserves the right to shut off the gas at any time and remove its property from the premises for any of the following reasons: (a) for repairs; (b) for nonpayment of bills when due."

The grounds argued and relied upon for reversal call for a review of the evidence. The undisputed facts show that within four or five days after January 11, 1933, the company rendered Mrs. Clark a bill for gas furnished by it between December 9, 1932, and January 10, 1933. The gross amount due as set out in the bill presented was $7.68 and the net amount $7.44. There was also included a balance for $3 which increased the net and gross amounts of the bill accordingly. Near the upper corner on each side of the bill, printed in prominent type, are the words, "Last day to pay net amount January 26, 1933." Some time after February 1, one of appellant's employees went to the home of Mrs. Clark with another bill of like character but smaller in size than the first. Failing to find Mrs. Clark at home, he left it with Miss Flora Kaysee, who roomed there, and she later delivered it to Mrs. Clark. Miss Kaysee testified that to the best of her recollection this bill was delivered in the latter part of January, but the company's representative does not fix the time more definitely than to say it was about the 1st of February. A representative of the company testified that he went to the home of Mrs. Clark after the second bill was rendered, and, again failing to find her at home, asked some children playing in the yard to tell her that the gas would be cut off if she did not pay her bill. Mrs. Clark testified that she did not receive the message, and there is no evidence that she did. About 1 p. m. on February 6, 1933, an employee of appellant went to Mrs. Clark's home, and Miss Kaysee, who was the only person there at the time, testified that, when she went to answer the knock at the door, the man told her he was there to see about the bill, and, upon being informed that Mrs. Clark was not at home, said he would have to turn the gas off, and proceeded to do so.

Mrs. Clark, a widow with five children, of whom deceased, age 14, was the oldest, was working for the relief committee in Ashland, and was paid in script, which it appears in evidence had been received by appellant in payment of gas bills. She testified that, when she returned from her work on the afternoon of February 6 and found the gas turned off, she waited the return of her children from school. Upon their arrival she sent her two youngest, who are girls, and later one of the boys, to the home of her mother nearby, but, on account of the illness of her mother and visitors in the home, there was not room to accommodate more of her family. Decedent was a newsboy, and it was his custom to sell papers after school. Following his usual custom, he went down town, and, after selling his papers, returned home about 6 p. m. He and his mother set up a coal stove and made a fire in it, and, because there was no flue in the house, ran the stovepipe out the window. This set the house on fire, and they were forced to put out the fire in the stove. According to the evidence, February 6 was a cold day with possibly rain or snow. At least, while the boy was out selling papers, the weather was very inclement.

The evidence shows that on the day the gas was cut off and on the previous day deceased had been complaining of some neuritic condition in his arm and shoulder which caused great pain and discomfort. Mrs. Clark testified that, because of pain in the boy's arm, he could not lie down, so she wrapped him in blankets and he sat in a chair the remainder of the night; that toward morning he began "chilling." She took him to work with her the following morning, and called on Dr. Debord, but for some reason this doctor could not attend the child, so she took him to Dr. Swope's home. Dr. Swope was not at home, but, when Mrs. Swope saw the child, she sent him to the home of Mrs. Charlie Clark, his aunt, and had the doctor see him there in the afternoon; that Dr. Swope said he thought the boy was going into pneumonia. This diagnosis proved to be correct, and he died on February 12 of that disease.

Mrs. Clark testified that she never received any notice that the gas would be cut off. There is evidence that she procured some brick preparatory to having a flue built, and had also procured a stove and some coal. Her explanation of making these preparations for heating with coal was that she had received information that the gas company would no longer receive script in payment of bills. She was asked if on Sunday before the gas was cut off, at the home of Green Dennis and in the presence of him, Allie Moore, Annie Dennis, and Eliza Tackett, she stated that she had a coal stove and that the company would be there in a day or two to turn the gas off and she did not give a damn if they did. She denied making such statement. Mr. Dennis and others mentioned as present testified that she did make such statement.

Mrs Fannie Clark, an aunt of deceased, testified that, as was their usual custom while attending school, deceased and his sister took lunch with her on Monday, February 6; that he expressed doubt as to whether he would sell papers that afternoon on account of a pain in his shoulder; that on the following day he came to her home in a taxicab, saying that Mrs. Swope had sent him there with instructions that he be put to bed and his shoulder bathed; that Mrs. Swope had taken his temperature and found it to be 102; that he ran a high temperature from that time until his death. She stated that she put him to bed on a divan in the living room and carried out the instructions sent by Mrs. Swope. When asked on cross-examination if it...