Samnee v. Home Service Propane Gas Co.

617 S.W.2d 463, 1981 Mo. App. LEXIS 2852
CourtMissouri Court of Appeals
DecidedApril 14, 1981
DocketNo. 42035
StatusPublished
Cited by2 cases

This text of 617 S.W.2d 463 (Samnee v. Home Service Propane Gas Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Samnee v. Home Service Propane Gas Co., 617 S.W.2d 463, 1981 Mo. App. LEXIS 2852 (Mo. Ct. App. 1981).

Opinion

GUNN, Judge.

The husband of plaintiff-respondent was killed as a result of smoke inhalation from an explosion and fire in his home. Suit was brought against defendant-appellant who serviced and supplied propane gas and appliances to the home. Plaintiff presented evidence; defendant presented none, choosing to risk all on its motion for directed verdict which was overruled. The jury returned a $300,000 verdict in favor of plaintiff.

Defendant’s lone point preserved for review alleges that plaintiff failed to make a submissible case and thus the trial court [464]*464erred in overruling defendant’s motions for directed verdict and judgment N.O.V. Defendant also has raised four points dealing with alleged instructional error. By disdaining to set forth the language of the challenged instructions anywhere in its brief, defendant is in gross violation of Rule 84.04(e) and has preserved nothing for review relating to instructional error. Sewell v. M.F.A. Mutual Insurance Co., 597 S.W.2d 284, 290 (Mo.App.1980); East v. Landmark Central Bank & Trust Co., 585 S.W.2d 222, 225 (Mo.App.1979). However, serendipity graces defendant in that its point that a directed verdict should have been given is viable and meritorious. We are therefore constrained to reverse the judgment.

In viewing the evidence in the light most favorable to plaintiff, we find that she and her husband, the decedent, lived in a rented duplex in Barnhart. Heat for the premises was provided by two used propane gas space heaters which had been purchased by the decedent and installed by the defendant on September 12, 1975. On the same date, defendant, a propane gas supplier, also connected the two space heaters to a 500 gallon storage tank, which it had delivered the previous month, containing 275 gallons of propane. After connecting the heaters to the supply lines, defendant’s employees applied a liquid leak finder to the fittings to determine whether there were any leaks at connection points of the heaters to the propane supply lines. Pilot lights for the two heaters were lighted and adjusted. Before leaving, defendant’s employees suggested to plaintiff that one of the space heaters was equipped to accommodate a thermostat, and she indicated that she would like to have one installed. On October 8, 1975, defendant’s employees returned to install a thermostat. There was no manipulation of the propane distribution system at that time. From its initial connection to the propane supply on September 12, 1975, to October 27, 1975, the kitchen heater was turned on twice for brief periods. The other heater was not used.

On October 27, 1975, at about 4:00 a. m., while plaintiff was away visiting her daughter, an enormous fulmination shook her home absolutely destroying it from the floor up. The decedent was in the house at the time and his body was later found there. According to plaintiff’s medical expert, death was caused by smoke inhalation from a fire rather than the explosion. The autopsy revealed a blood alcohol level of 200 mg. percent, with the medical examiner’s conclusion that decedent was under the influence of alcohol at the time of death. A gas flame was observed to be shooting six to eight feet skyward from the connection where the kitchen stove had formerly been. A state propane gas inspector who investigated the incident and testified for plaintiff was unable to determine the cause of the explosion or fire.1 The propane was tested for odorization and was found to comply with state standards. State fire officials’ investigation disclosed “no violation of the safety standards or any violation of the materials involved in the installation”. Supply lines from the propane tank for the heaters lay under the floor of the house within a three foot crawl space beneath the floor and were readily visible for inspection. The floor of plaintiff’s house had been left completely intact after the explosion. It was the only part of the house which had not been disturbed. The day after the explosion, the state propane gas inspector went beneath the floor of the house into the crawl space and inspected the complete length of supply line, finding no defects. On March 22, 1976, nearly six months after the fire and explosion, a photographer for plaintiff’s lawyer observed two splits in the copper supply lines under the floor just beneath the kitchen area.

Plaintiff based her cause of action on the specific acts of negligence that defendant had permitted propane gas to leak from the system, failed to properly inspect the sys[465]*465tem, warn of the leaks and accumulation of the gas, and failed to odorize the propane gas. (The record absolutely fails to sustain this latter point.) The primary basis for plaintiff’s claim of negligence is defendant’s employees’ failure to utilize a pressure reading device known as a manometer to determine if there were leaks in the system after installing the heaters; that as 75 gallons of propane were gone from the supply tank either — as put by plaintiff — through use, leak or explosion, there must have been a leak in the system.

With regard to the use or non-use of the manometer, defendant’s manager, called as a witness by plaintiff, testified that its use was standard procedure as a backup to liquid leak finder in testing for leaks; that it was standard equipment for its employees in testing a system such as plaintiff’s. The only evidence that a manometer was not utilized came from plaintiff who testified that she did not see one applied on either of the stoves as defendant’s employees made the installation. But that bit of testimony does not signify it was not used elsewhere. We do not find that such testimony establishes anything — whether or not a manometer was used to test the system for leaks. The evidence is quite positive, though, that defendant considered its use important. But that is not defendant’s burden in this case.

To make a submissible case, plaintiff must present evidence that the alleged negligence proximately caused the injury. The keystone to plaintiff’s case as stated in her brief is that defendant “alone had the opportunity (and obligation) to discover the source of leakage which ultimately claimed the decedent’s life”. But that presumes a leak was somewhat permitted to exist by defendant’s fault, whereas the evidence does not disclose the cause of the explosion or that any of defendant’s actions had any causal connection with it.

There is an abundance of law on the issue presented, and to her misfortune, it is all deleterious to plaintiff’s case. For example, Fields v. Missouri Power & Light Co., 374 S.W.2d 17, 22-23 (Mo.1963), an exhaustively researched opinion, sets forth the law regarding a natural gas supplier’s liability for injuries resulting from leaks:

A supplier or distributor of natural gas, such as Mo.P.

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Related

Kilmer v. Browning
806 S.W.2d 75 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
617 S.W.2d 463, 1981 Mo. App. LEXIS 2852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samnee-v-home-service-propane-gas-co-moctapp-1981.