232 P. 428 | Okla. | 1924
C.W. Kelly and Margaret Z. Kelly, his wife, on December 20, 1919, were residing in the home of L.G. Agard in the city of Okmulgee, as the tenants of the latter. About 7 o'clock, in the morning of December 20th, an explosion from gas occurred in the part of the house occupied by and under control of Agard, which wrecked and destroyed the house. Mrs. Kelly received injuries from which it is alleged she died on February 12, 1920. The deceased left surviving, her husband and a brother and two sisters, adults, as her next of kin. These parties, as the next of kin, commenced their action against the Okmulgee Gas Company, for the wrongful death of Mrs. Kelly. The petition does not allege that the brother and sisters were dependent upon the deceased for support. In the trial of the cause judgment went for the plaintiffs, and the defendant has appealed the cause to this court. Among the several proceedings had in the trial court and assigned as error here for reversal are: (1) Improper parties plaintiff; (2) error of the court in failing to sustain defendant's demurrer to the evidence of the plaintiffs; (3) the verdict of the jury is contrary to the evidence; (4) the verdict is contrary to law; and (5) error in giving certain instructions to the jury.
The Kellys occupied two front rooms, one of which was used as a bedroom and the other as a kitchen. There was a gas stove in the bedroom, and a gas range in the kitchen. The bedroom occupied by Agard was separated from the kitchen room by a board wall. There was a gas range in Agard's bedroom, and situated about four or five feet from the gas range in the kitchen of the Kellys. For cause of action, the plaintiffs alleged that at the time of and prior to the accident, Agard had in use a rubber hose connection to his gas stove, but it is not alleged that the defendant had notice of the use of the hose. It is alleged that the defendant caused an excessive and fluctuating pressure in the gas line serving the residence, which caused the rubber hose to loosen from its connections and permit gas to escape and fill Agard's room. On the morning in question, and without knowledge of the presence of gas, Agard arose and in attempting to light his gas range, ignited the gas in the room, which resulted in an explosion, wrecking the house and injuring Mrs. Kelly.
The evidence shows that the gas company received the gas from the fields into the city through a six inch steel pipe, at a pressure of 75 pounds. The gas passed from the main through low pressure reducers into a two-inch service iron pipe, at a pressure of 12 ounces. The service lines were laid in the streets along by the residences for connection with the buildings by one-inch iron pipe. The gas company laid the one-inch iron pipe from the service line to a point just inside the curbing, to the property line of the consumer. The consumer made a connection by one-inch iron pipe with the gas company's line at the curbing, and extended the line into his residence, and there made the connection for use of the gas. The following ordinance was and had been in effect in the city of Okmulgee for some time prior to the accident: *191
"Rubber hose prohibited. It shall be unlawful for any person, firm or corporation, or gas fitter to connect any gas stove or heater for any purpose, with a rubber hose, or any other flexible connection. All connections must be iron pipe."
As relating to the accident, Kelly testified that he got up about 6 o'clock a. m. and first lighted the gas range in the bedroom. He went back to bed and soon heard the noise of the gas burning. The blaze of the stove was then burning several inches in height. He turned the burner down and continued to regulate the stove for some few minutes. He then passed through a door into the kitchen, where he lighted the gas range used for cooking. He had a similar experience with the range. Mrs. Kelly soon came into the kitchen and commenced the preparation of breakfast. Kelly gave his principal attention to the regulation of the burning of the fire in the kitchen range. Several of the neighbors living in that vicinity testified to similar experience with their stoves on the morning of the accident. Mrs. Blalock, whose residence was situated about 20 feet from the Agard home, testified that the gas range had burned in the living room of her home all night. That shortly after six o'clock the noise of the burning range attracted her attention and she went into the room and lowered the burner. She returned to bed and was probably asleep at the time of the accident so she testified. It was the purpose of the plaintiffs by this testimony to show that the defendant was using excessive pressure in supplying gas through its service lines. The plaintiff did not offer any testimony to show what effect, if any, the pressure had on the rubber hose connection, or other gas connections in the room occupied by Agard. From the evidence, apparently, iron pipe connections were used to connect the gas stoves in the homes testified about. No explosion from gas occurred in the vicinity of the Agard home, or in any other part of the city on the morning in question.
Plaintiff, Kelly, testified that just before the explosion he heard a roaring noise, which he took to be the gas range burning in Agard's room. Agard testified for the plaintiff, by deposition, that he had equipped his gas range with a rubber hose, and that the hose was in use at the time of the accident. He testified that on the morning of the accident he got up, and while standing about four feet from the gas range, he struck a match to light the stove, which resulted in the explosion. No testimony was offered by Agard or by any other person for the plaintiffs, to show the condition of the rubber hose or other connections at the time the explosion occurred. There was no testimony offered to show that the gas pressure was sufficient to, or did impair the connections or fittings to gas stoves in any of the homes in the vicinity of the Agard home.
The defendant offered evidence to show that it was customary to set the low pressure reducers at 12 ounces at five o'clock, in the winter time, and that the reducers had been set at that hour accordingly, on the morning of the explosion.
We have rather tediously detailed the evidence in order to show clearly the duties owing by the defendant to the plaintiffs, and the breach of such duties, if any, and the relationship between and among the parties.
Where the landlord retains control of a portion of the premises occupied by the tenant, the responsibility rests with the landlord to maintain such portion of the premises occupied by him in a reasonably safe condition, so that injury will not result to the tenant. Hinthorn v. Benfer,
The gas company owes the duty to see that the pipe lines and fittings, when first laid in the ground, with reasonable care and skill, will not permit the escape of gas, and a system of inspection is required as will result in reasonable promptness in the discovery of leaks, which may occur from deterioration of the material or from other causes within contemplation by the company. Pine Bluff Water Co. v. Schneider,
If the landlord fails to properly maintain the gas connections in the property which he occupies, which results in injury to the tenant, he would be liable. Chiles v. Ft. Smith Commission Co. (Ark.) 216 S.W. 11, 8 A. L. R. 493. The defendant had the right to rely on the belief that Agard would discharge his duty in properly maintaining the gas fittings and connections in the property he occupied, unless the company had actual notice of the existing defects. Judson v. Giant Powder Co.,
The plaintiffs were content to prove the happening of the explosion and the consequential injury. They failed to show that Agard had discharged his duty in maintaining the connections and fittings where the explosion occurred. The plaintiffs proved that the gas stove burned in a fluctuating manner in Kelly's room and in the homes of persons residing in the vicinity just prior to the time of the accident. It was intended to show by this evidence that a greater gas pressure was being used than ordinarily. But no other gas explosion occurred from any cause in any of the several homes during the morning of the accident. The plaintiffs undertake to maintain that from the conditions testified about, as to the fluctuating flames of the stoves in the several homes in the vicinity, the presumption is that the same condition existed in Agard's room which caused the explosion. From common experience, if the doing of a certain act, under certain given conditions, ordinarily results in certain consequences, where these results are present under the given conditions, the law presumes the results occurred by doing the acts, which ordinarily give the same effect. Judson v. Giant Powder Co., supra. Instead of the proof supporting the presumption contended for by the plaintiffs, by the rule the presumption is to the contrary. As the pressure resulting in the fluctuating flames did not produce any known explosion in any other place in the vicinity, by the rule the presumption is that the condition testified about did not produce the explosion in Agard's home. As the legal presumption is that the condition testified about did not cause the explosion, the burden was on the plaintiffs to show by competent proof a causal connection between the alleged negligence, if any, as charged, and the explosion. St. L. S. F. Ry. Co. v. Fick,
The plaintiffs have invoked the rule of res ipsa loquitur to support their judgment against the defendant. The rule asserts that whenever a thing which produced the injury is shown to have been under the managment and control of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been used, the fact of the happening of the accident creates the presumption that the accident and injury resulted from the *193
negligence of the defendant. Judson v. Giant Powder Co., supra; Hart v. Washington Park Club,
As the plaintiff failed to make out a cause of action, there is no occasion for considering the legal effect of the ordinance pleaded by the defendant as defensive matter. The defendant questions the right of the adult brother and sister of the decedent to join in the action as plaintiffs. The deceased did not leave any children or issue of deceased children, or father or mother. This made the husband and brother and sisters the next of kin. By the provisions of section 822, Comp. Stat. 1921, an action for injury to the person does not abate by the death of the injured party. The action survives and may be maintained by the personal representative for the benefit of the estate. The proceeds of the judgment should be distributed to the next of kin as other property of the estate. Whether the next of kin has suffered pecuniary loss is immaterial. St. L. S. F. Ry. Co. v. Goode, Admin.,
It is recommended that the cause be reversed and remanded for further proceedings in accordance with the views herein expressed.
By the Court: It is so ordered.