Thе issues presented by these appeals are: [1] Did the trial court err in sustaining Oklahoma Natural Gas Company’s [ONG] demurrer to plaintiff’s evidence? [2] Did the trial court err in refusing to instruct the jury that it apportion liability among the defendants in proportion to the percentage of causal negligence it finds attributable to each? [3] Was it error to instruct the jury on defendant’s violation of a local municipal ordinance? [4] Did refusal of a requested jury instruction that liability cannot be supported by one inference placed upon another constitute reversible error? [5] Did the trial court err in allowing testimony of a city mechanical inspector as to certain custom and usage in the trade? [6] Is the jury’s verdict tainted by an inconsistency in finding both the building owner and its contractor-plumber negligent?
We hold that: [1] ONG’s demurrer was properly sustained; [2] there was no error in refusing to instruct the jury to apportion the several defendants’ liability; [3] the jury instruction with respect to the ordinance was frеe from error; [4] the refusal to submit the requested instruction was not prejudicial and reversible error; [5] specific allegation of custom was not a necessary predicate for the admitted testimony as to certain trade practice; and [6] the jury verdict is not inconsistent since there was evidentiary basis upon which thе jury could find both codefendants-owner and plumber-negligent by reason of separate acts.
A passerby [Plaintiff] was injured in an explosion which leveled a building owned by Canteen Corporation [Owner], one of four codefendants. The building had been occupied as a restaurant. It was equipped with a “fire suppression system”. The device, attached to the structure’s gas pipes directly above the cooking equipment, functioned in conjunction with a gas valve that, in the event of a fire, would automatically shut off the gas.
Owner engaged Accurate Fire Equipment Company [Accurate], another codefendant, to install three identicаl fire suppression systems at a different location. The system that was in place in the vacant restaurant was to be dismantled and used as one of the three to be installed. An employee of Accurate, who had removed the fire suppression system, did not take out the automatic gas valve which was a part of it. Later, when other employees of Accurate were waiting to begin installation of the system at the new location, they were instructed to “pick up” the missing gas valve from the vacant building. They then removed the valve. In the process they left uncapped the gas pipe they had cut for this purpose. Several months later, during the winter, water froze in the vacant building and its pipes burst. The Owner engaged Carder Plumbing Company [Carder], a third code-fendant, to restore heat and prevent refreezing. One of Carder’s plumbers turned on the gas into the building and within an hour an explosion occurred in which plaintiff was injured. Plaintiff 1 brought suit against the Owner, ONG, Carder and Accurate to recover damages for injuries sustained in the gas explosion alleged to have been caused by defendants’ negligence. The trial court sustained ONG’s demurrer to plaintiff’s evidence and a jury verdict found against the remaining three defendants. Accurate did not appeal. Owner and Carder brought separate appeals which stand consolidated for decision.
I.
ERROR IN SUSTAINING ONG’S DEMURRER TO PLAINTIFF’S EVIDENCE
Carder and Owner contend that ONG’s demurrer to the plaintiff’s evidence was improperly sustained. 2 We disagree.
II.
ERROR IN JURY’S FAILURE TO ASSESS PERCENTAGE OF NEGLIGENCE ATTRIBUTABLE TO EACH DEFENDANT
The Owner and Carder assert error in trial court’s refusal to instruct the jury separately to assess against each of the defendants the percеntage of negligence found attributable to each. Both the Owner and Carder argue that Laubach v. Mor gan 5 should have been applied here to the multiple tortfeasors in a negligence action. If apposite, Laubach would require that the negligence of each party be separately assessed.
Laubach was a comparativе negligence case, within the meaning of 23 O.S.Supp. 1978 § 11, 6 in which the plaintiff was found partially at fault in producing his injury. Here, we are concerned not with comparative negligence, but rather with an admittedly blame • free plaintiff seeking recovery from multiple tortfeasors whose negligence is said to have “concurred, commingled and combined” to produce the harm.
The common Jaw negligence liability concept may be described as “all or nothing” to the plaintiff. If he be blame-free “all” is due him; if he be at fault, however slightly, “nothing” is his due. The statutory comparative negligence approach allows the victim at fault to secure some, but not all, of his damages. The raison d’ etre and rationale of comparative negligence are tied, hand аnd foot, to the narrow parameters of a blameworthy plaintiff’s claim. 7 We hold that neither the rationale nor the holding of Laubach applies to that class of negligence litigation in which the plaintiff is not one among several negligent co-actors.
Several liability, fashioned in
Lau-bach,
was held applicable in a comparative negligence context where the plaintiff was found to be one оf several negligent co-actors. There is absolutely
nothing
in
Lau-bach
to negate the continued force of the common law rule of joint and several liability in those negligent torts which fall completely outside the purview of our comparative negligence legislation.
8
Although some of the language in
Laubach
appears sweep
In the instant case there was but a single injury. Implicit in the jury’s verdict is its finding that the separate and independent acts of negligеnce on the part of the codefendants concurred and combined to produce the harmful result for which damages were sought. 13 Even though concert among the tortfeasors was lacking and the act of one codefendant alone may not have brought about the result, each is at common law responsible for the entire damage. There is no statutory warrant for a conclusion that the common law rule was to be scuttled in order to alter the legal obligation owed by negligent co ■ actors to a fault-free tort claimant.
We hold Laubach does not apply to tort litigation in which the injured party is not a negligent co actor.
III.
APPLICABILITY OF THE CITY ORDINANCE
Carder аsserts error in instructing the jury on Tulsa’s mechanical code ordinance
The violation of an ordinance is to be deemed negligence per se 15 if the injury complained of (a) was caused by the ordinance’s violation, (b) was оf the type intended to be prevented by the ordinance and (c) the injured party was one of the class meant to be protected by the ordinance. 16
The question raised is: Does the turning on of gas into a building which has been unheated and vacant several months come within the purview of an ordinance that requires a check of the fittings, ends and valves to make sure they are closed before gas is turned on into a “system of gas piping”? We have no hesitancy in giving a positive answer. The code section at issue contains no definitions of pertinent terms. If the words of the ordinance are taken in their ordinary and usual meaning, the rule appears amply broad to fit the situation at bar. The ordinance was obviously adopted to reduce the chance of allowing gas to escape and thus bring about an explosion-the very cause of the injury here. It was clearly intended to protect the public from injuries occasioned by gas explosions. Plaintiff was hence within the class meant to be protected by the ordinance.
IV.
REFUSAL TO INSTRUCT AGAINST FINDING NEGLIGENCE BY PLACING ONE INFERENCE UPON ANOTHER
Carder next complains of trial court’s refusal to give a requested instruction to the effect that a finding of negligence cannot be rested on one inference placed upon another. Although the proffered charge contаins a correct statement of law, 17 its rejection was not error. The instructions as a whole fairly embody the law applicable to the issues involved. 18 Even if the trial court had erred in refusing the requested instruction, the error could not be deemed prejudicial or reversible.
V.
CLAIM TO ERROR IN ADMITTING TESTIMONY OF THE PLUMBER’S MODUS OPERANDI
Carder next asserts there was error in admitting testimony by а municipal mechanical inspector on a certain practice in the plumbing trade. This error is sought to be predicated on the plaintiff’s failure to plead custom in his petition. The inspector testified that as an experienced, licensed gas fitter he always followed the practice of checking the meter immediately after turning on the gas. The purpose of this procedure was to search for indication of leaks or for open lines. Carder’s employee testified he had not looked at the meter after turning on the gas at the ill-fated premises.
The authorities relied upon by Carder require that custom be pleaded where reliance is placed on its breach as a ground of
The injured party in the case at bar initially sought to predicate recovery against the defendants on res ipsa loquitur. Subsequently, as thе pre-trial order indicates, the plaintiff changed his theory of recovery against Carder to one in negligence. It was alleged that “. . . his [Carder’s] agent .. . failed to check the gas meter after turning on the gas at the fire stop to the building ...” The evidence admitted over Carder’s objection went to the negligence of Carder’s employee. Negligence is the failure to use due care. 21 Since the plaintiff had pleaded negligence, he was properly allowed to submit proof of its elements. The testimony Carder deems objectionable merely went to show lack of due care. It revealed how others in the same or similar cirсumstances would proceed. The evidence of the practice followed by a person in Carder’s occupation, in the same or similar circumstances, was hence admissible, though the practice was not specifically pleaded.
VI.
ALLEGED INCONSISTENCY OF THE VERDICT
Lastly, Carder asserts the verdict is tainted by an inconsistency. The argument advanced is predicated on Carder’s view that a verdict against the Owner ipso facto exonerates Carder. The verdict is said to impute to the Owner knowledge of the dangerous condition on its premises at the time Carder’s employee was instructed to turn on the gas. We cannot accede to this view.
A verdict for both the Owner and Carder could be rested on independent acts of negligence, different theories of recovery and diverse sources of liability. Vis-á-vis the plaintiff, who was a passerby,'the Owner had an independent nondelegable duty to prevent danger from its premises to persons on the sidewalk. As a plumber, Carder owed the duty of exercising due care in the performance of the task for which the Owner had hired him. Carder’s status as an independent contractor provides no legal shield to the Owner. 22 Nor can any Owner’s negligence insulate Carder from liability for its own lack of due care.
Where several causes combine to produce an injury, a defendant is not relieved from liability merely because he can show another is also responsible or because he is responsible for only some of the causes. 23 Where there is concurrent negligence and each of the multiple causes is deemed efficient in the sense that without each the harm would not have occurrеd, the injury may be attributed to any or all of the forces in action. 24
The judgment is free from error.
AFFIRMED.
Notes
. Both the injured passerby and his wife sought damages.
. Both defendants filed a motion for new trial but only one of these defendants [Carder] in-eluded in it the alleged error in sustaining ONG’s demurrer to plaintiff’s evidence. The error is hence available only to Carder. 12 O.S.1971 § 991(b).
.
Martin v. Stratton,
Okl.,
.
Chaplinski v. Gregory,
Okl.,
. Okl.,
. Repealed by Okla.Sess.L.1979, c. 38 § 4 and replаced by 23 O.S.Supp.1979 § 13.
. McNichols, Judicial Elimination of Joint and Several Liability Because of Comparative Negligence A Puzzling Choice, 32 Okla.L.Rev. 1, 11 and 12 [1979],
. 23 O.S.Supp.1979 § 13. Our new comparative negligence provision remains yet to be interpreted. Laubach dealt with its antecedent version. See note 7.
. The pertinent language in Laubach, supra note 5 at 1074, provides: “2. Do away with the ‘entire liability rule’ and provide multiple tortfeasors are severally liable only, * * * This in effect drastically changes the theory of joint-tortfeasors.” At page 1075 the opinion states: “Joint and several liability then will only exist where, for some reason, damages cannot be apportioned by the jury.” See also McNichols, Judicial Elimination of Joint and Several Liability Because of Comparative Negligеnce-A Puzzling Choice, supra note 7 at 27.
. Arkansas has retained the concept of joint and several liability.
Walton v. Tull,
.
National Trailer Convoy, Inc. v. Oklahoma Turnpike Authority,
Okl.,
Our newly enacted statute on contribution among tortfeasors, Okla.Sess.L.1978, c. 78 § 1, 12 O.S.Supp.1978 § 832, became effective October 1, 1978, which date is subsequent to both the occurrence of the harm and the rendition of the judgment in this case.
. Note Multiple Party Litigation Under Comparative Negligence in Oklahoma-Laubach v. Morgan, 13 Tulsa L.J. 266, 269 and 280 [1977],
.
Green v. Sellers,
Okl.,
. The terms of the pertinent Tulsa code provision, § 624.20.5 of the City of Tulsa BOCA Mechanical Code, provide: “Open Fittings-valves: Before gas is turned on into a system of gas piping, or after being shut off, the entire system shall be checked to make certain that fittings or ends are not open and that all valves at outlets are closed.” [Emphasis supplied].
.
Harbour-Longmire Bldg. Co.
v.
Carson,
.
Foster
r.
Harding,
Okl.,
. 12 O.S.1971 § 78;
Coker v. Southwestern Bell Telephone Co.,
Okl.,
. W. L. Hulett Lumber Co. v. Bartlett-Collins Co., supra note 13; Elam v. Loyd, supra note 16.
.
Fellers v. St. Louis-San Francisco Ry. Co.,
Okl.,
.
Fellers v. St. Louis-San Francisco Ry. Co.,
supra note 19, at 975;
Davis v. Whitsett,
Okl.,
.
Raimer v. Donelson,
.
Davis
v.
Whitsett,
supra note 20, at 595;
Porter
v.
Norton Stuart Pontiac-Cadillac of Enid,
Okl.,
.
Green v. Sellers,
supra note 13;
Oklahoma Gas and Electric Co. v. Butler,
. Green v. Sellers, supra note 13; Oklahoma Gas and Electric Co. v. Butler, supra note 23.
