Wielms v. St. Louis County Gas Co.

• Decision Date: 07 April 1931
• Docket Number: No. 21491.,21491.
• Citation: 37 S.W.2d 454
• Parties: WIELMS v. ST. LOUIS COUNTY GAS CO.
• Court: Missouri Court of Appeals

37 S.W.2d 454

WIELMS v. ST. LOUIS COUNTY GAS CO.

No. 21491.

St. Louis Court of Appeals. Missouri.

April 7, 1931.

Appeal from St. Louis Circuit Court; Arthur V. Lashly, Judge.

"Not to be officially published."

Action by Henry J. Wielms against the St. Louis County Gas Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

A. E. L. Gardner, of Clayton, for appellant.

Fred Berthold and Emery W. Chase, both of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff as the result of the inhalation of illuminating gas, which escaped from defendant's mains in the immediate vicinity of his residence at 4900 Jennings road, in St. Louis county. The verdict of the jury was in favor of plaintiff, and against defendant, in the sum of $7,000; and, from the judgment rendered, defendant has duly appealed.

The petition was founded upon the negligence of defendant in the maintenance of its mains so that gas was permitted to escape therefrom, and to enter plaintiff's premises, from May 17, 1929, up to and including August 8, 1929.

The answer filed by defendant was a general denial.

Plaintiff occupied a two-story building at the given address, with a grocery and meat market on the first floor, and the living quarters of the family on the second floor. The premises also included a basement, in which a part of the cooking was done. From the basement, a service pipe led to defendant's main, which was laid alongside the roadway, seemingly some fourteen or fifteen feet in front of plaintiff's building.

Even prior to May 17, 1929, the first date counted upon in the petition, plaintiff, as well as numerous other people living in the vicinity and patronizing plaintiff's store, had smelled gas, and plaintiff had made complaint to defendant about the odor of gas in his premises, which had resulted in an investigation on the part of the defendant's employees, and the installation of a new service pipe leading to plaintiff's basement. However, the leak continued, and on May 17th plaintiff was first overcome by the gas. Further complaints were made from time to time, and further investigations followed on the part of the defendant. On August 7th, plaintiff and his son were both overcome by the gas, whereupon defendant uncovered its main, and, at a point directly in front of plaintiff's premises, a hole as large as a silver dollar was found in the pipe, with a number of smaller holes around it.

The evidence for plaintiff showed that the odor of gas in his premises was continuous from a time three weeks prior to May 17th, up to the date in the following August when the leak was discovered and repaired, and that on at least one occasion the gas was so densely concentrated in the basement of his home that, when a match was lit, the gas burned upon the concrete floor near cracks through which it entered from the soil underneath.

The day following his first attack, plaintiff called his family physician, Dr. Doan, and he was still under the latter's care at the time of the trial one year later. In passing, it may be said that there was no serious controversy about plaintiff's physical condition, the evidence showing that prior to May 17, 1929, he had never been sick, and at that time weighed 235 pounds; that in the space of one year he lost 65 pounds in weight; that he suffered from headaches, nausea, and dizziness; that his lungs, arms, and ankles pained him; that he had to support himself as he went from one portion of his store to another; and, in short, that he was afflicted with what the doctors diagnosed as pernicious anemia, an incurable disease described as one in which the red corpuscles of the blood are destroyed at a faster rate than they can be produced by the bloodbuilding organs of the body.

Plaintiff's theory of the case was, of course, that his physical condition was directly attributable to the constant inhalation of gas over the period of time mentioned in the evidence, while defendant countered with the idea that pernicious anemia, though its cause was not known to the medical profession, could not result from inhaling gas in any quantity.

In other words, defendant's theory was, and its experts testified, that pernicious anemia manifests itself whenever the blooddestroying elements of the body have run wild, and are destroying the blood beyond any capacity of the blood-making organs to rebuild it; that it is a disease in which the processes of creation and destruction of blood are not equalized; that one of the elements in the blood is the hemoglobin, which is the coloring matter in the red corpuscles; that the hemoglobin has one definite function to perform, which is that in the lungs it combines in a chemical union with the oxygen in the air, and then carries the same to all parts of the body; and that in a case of pernicious anemia, due to a diminution in the number of blood cells and their inefficiency to function as nature intended, the capacity of the blood to carry oxygen is materially reduced, with a consequent decline in the physical condition of the sufferer.

As to the effect of illuminating gas upon the human system, defendant's evidence was that the most important constituent of the same was carbon monoxide; that carbon monoxide has the ability to combine with the hemoglobin of the red corpuscles to an extent three hundred times that of oxygen; that, when gas containing carbon monoxide is breathed into the lungs, the capacity of the blood to carry oxygen is reduced in proportion to the concentration of carbon monoxide in the inhaled air; that, if the concentration of carbon monoxide is so great as to leave no capacity to carry oxygen, the person dies; but that, if the person is removed from the gas-infested atmosphere in a living condition, and is promptly put in pure air, the carbon monoxide theretofore taken into a union with the blood is eliminated by respiration, and the blood is eventually left as it was before, inasmuch as carbon monoxide has no property of destroying the red cells of the blood, or of impairing their vitality in any manner.

Conceding the sufficiency of the proof of its negligence, and admitting, in oral argument at least, that plaintiff was entitled to some...