Wilson v. Home Gas Co., 38565

Decision Date03 January 1964
Docket NumberNo. 38565,38565
Citation125 N.W.2d 725,267 Minn. 162
PartiesChester T. WILSON and Marie A. Wilson, Appellants, v. HOME GAS COMPANY, Inc., Respondent.
CourtMinnesota Supreme Court

Syllabus by the Court

1. Errors in admission of evidence relating only to the issue of damages would be without prejudice where a new trial is sought only on the issue of liability. Ordinarily it is not permissible to show payment of a loss by an insurer in order to reduce or defeat recovery, but where the existence of insurance becomes material to an issue in the case it may be shown.

2. Where an explosion may have resulted from one of many unknown causes, some of which are not chargeable to the negligence of a defendant, the doctrine of res ipsa loquitur is inapplicable.

3. The trial court's instruction relative to the care required of one who sells or distributes gas when read as a whole was adequate. Ordinary care equated with the dangers involved in a particular situation properly states the applicable rule.

4. The duty of one who sells or distributes gas, as to appliances which it does not own or control, is limited to the exercise of reasonable care to shut off its gas supply or remedy defects only after notice of the existence of danger from escaping gas.

5. The evidence in this case supports the verdict of the jury that plaintiffs have failed to sustain their burden of proving that the gas causing the explosion escaped from a pipe or installation for which defendant was chargeable with responsibility and that there was no breach of a duty to repair appliances not owned or controlled by it in the absence of notice of the existence of a dangerous condition due to escaping gas.

6. Where plaintiffs neither requested an instruction on inferences that may be drawn from circumstantial evidence or presented it in a motion for a new trial, failure to give such instruction may not be assigned as error for the first time on appeal.

Earl L. Johnson, Rice & Efron, Minneapolis, for appellants.

Sullivan, McMillan, Hanft & Hastings and William P. O'Brien, Duluth, for respondent.

KNUTSON, Chief Justice.

This is an appeal from an order of the trial court denying plaintiffs' motion for a new trial on the issue of liability only.

The case arises out of a propane gas explosion, which, with the ensuing fire caused by the explosion, substantially wrecked plaintiffs' home and caused plaintiff Chester T. Wilson to suffer personal injury.

In 1950, defendant, Home Gas Company, Inc., made an installation of a propane gas system in the home of plaintiffs. The pipes and fittings for the system were furnished and sold by defendant. The installation consisted of an outdoor 500-gallon bulk tank located above ground; an underground supply pipe into the house; and pipes running along the south wall to the furnace and branching off to certain appliances.

Plaintiffs' home was a one-story house with a full basement. In the southeast corner of the basement was a utility room, and in it, among other things, was a gas hot-water heater; in the southwest corner of the basement was a propane gas furnace; and in the kitchen on the ground floor were an old Servel refrigerator and a gas stove. None of these appliances were purchased from or owned by defendant. Defendant did hook up the supply line to these appliances and the furnace.

Over the years, defendant had been called on occasions when plaintiffs had a problem about gas. The last time that gas odor had been detected was early in March 1959. Defendant's employees went to plaintiffs' home and apparently repaired the defect, although the record does not show what they did. Thereafter, neither Mrs. Wilson nor anyone else smelled the odor of gas until the evening of May 29, 1959. During that evening Mr. Wilson was at home alone, sleeping on a couch, when he was awakened by the ringing of the telephone. When he arose to answer the telephone he felt groggy, and thinking the grogginess might be caused by gas he went down to the basement to investigate. He testified that it was 'so thick you couldn't breathe.' When Wilson opened a basement door in order to go out to shut off the gas tanks, an explosion occurred, causing his injuries and the destruction of the house.

The case was submitted to the jury on a special verdict. The jury found that defendant was not guilty of negligence; that plaintiffs were guilty of negligence; but that their negligence was not a proximate cause of the injury. The jury also found Chester Wilson's damages for personal injuries to be the sum of $18,000. To that amount was to be added property damages suffered by reason of the destruction of the home and its contents, covered and paid for by insurance.

The determinative evidence consisted largely of the testimony of two expert witnesses, one called by plaintiffs and the other by defendant. Neither expert could determine with any degree of certainty what caused the accumulation of gas in such quantities as to permit an explosion of this proportion. Examinations were made of all the appliances after the explosion, but it was conceded that the heat of the fire or the force of the explosion might have changed the controls and other pipes and connections that could conceivably have permitted the escape of gas. Neither of the experts would rule out any of the appliances as a possible source of escaping gas.

Professor Adolph O. Lee was questioned about a report given to plaintiffs prior to the trial which stated, 'Both failures of safety shutoffs and leakage of pipes are approximately the greatest physical conditions existing and are not sufficient to allow me to determine the true cause of the gas leak which came into the basement atmosphere.' He said in answer to the accuracy of the statement, 'That's true.' He was then asked:

'These pictures I think we have all seen. And, now, Page 15 and in the same sentence, and this was written before you made your microscopic examination of the pipe, 'Means by which propane and bottle gas escaped in the basement atmosphere could not be determined, but two likely existed. One, a leak in the gas piping; and two, failure of controls particularly on the hot water heater."

His answer was: 'That's correct.'

Professor Frank B. Rowley, who appeared for defendant, gave substantially the same testimony. He stated that the escaping gas could have come from a leaking pipe or from a failure of the controls on any one of the appliances and that there was no way of determining where it came from after the explosion and resulting fire.

While plaintiffs raise a number of issues now, they involve mainly the admissibility of evidence and the court's instructions relating to the degree of care required of a supplier of gas. The issues will be discussed separately.

1. Plaintiffs called Dr. Willis L. Herbert, who testified, among other things, that Mr. Wilson had developed a traumatic mental depression. On cross-examination he stated:

'* * * I would ask him why he was depressed and he would tell me that he was depressed on account of the loss he suffered in that explosion. And I would ask him to qualify that and he would qualify that by stating that he was not entirely covered by insurance.'

He was then interrogated as follows:

'Q. You didn't know that his house was fully covered with insurance up to the amount of $17,500.00 including all his living expenses while he was finding a house?'

At this point plaintiffs' counsel objected to the question as being irrelevant and immaterial, but the witness was permitted to answer.

'A. No, he did not advise me of that.

'Q. You did not know that he had over $10,500.00 worth of insurance on the contents of that house, did you?

'A. No, I did not.

'Q. You did know that he had coverage with several disability companies, did you not, because you had to send in reports in order--send in disability reports in order for them to pay the medical bills?

'A. Yes.'

Later court and counsel retired to the court's chambers and a discussion followed. The court indicated its opinion that 'defense counsel now may cross-examine the plaintiff as to his reimbursement for his property losses with relation to his claim of mental depression due to such worry over his losses due to this fire and destruction of his property.'

After some further discussion, it was stipulated between the parties that plaintiffs had been compensated for all of their property damage by insurance companies except the sum of $225. As a result of this stipulation, the court instructed the jury:

'The parties have agreed and stipulated that the total of said damage was in the sum of $28,700.00. The parties have further agreed and stipulated that the loss in said amount, except the sum of $200.00 has been paid to the plaintiffs by certain insurance companies which carried the insurance on the property. You need not pay any further attention to this question of damages as the relationship and rights between the plaintiffs and the insurance carriers will be disposed of by the Court in determining the final result of this litigation.'

Plaintiffs now claim that it was reversible error to overrule their objection to questions showing payment of property damage by insurers.

This claim is untenable for two reasons: Plaintiffs' appeal here is from the denial of a motion for a new trial on the issue of liability only. They seek no retrial of the issue of damages. Even if the court's ruling was erroneous, it would not affect the issue of liability, so clearly it would be error without prejudice.

Secondly, it was not error on the part of the court to admit evidence showing the existence of insurance on the state of the record in this case. Dr. Herbert, testifying to Mr. Wilson's personal injuries, based his opinion that Wilson had developed a traumatic mental depression on statements attributed to Wilson that he was worried because his loss was not covered by insurance. Thus it became...

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