Boyles v. Oklahoma Natural Gas Co.

Boyles v. Oklahoma Natural Gas Co.
1980 OK 163
619 P.2d 613
Case Number: 52220, 52249
Decided: 11/04/1980
Supreme Court of Oklahoma

KENNETH DAVID BOYLES AND DEBRA L. BOYLES, HUSBAND AND WIFE, PLAINTIFFS-APPELLEES,
v.
OKLAHOMA NATURAL GAS COMPANY, A FOREIGN CORPORATION; ACCURATE FIRE EQUIPMENT COMPANY, AN OKLAHOMA CORPORATION; JAY LEASING COMPANY, AN OKLAHOMA CORPORATION AND GEORGE CARDER, D/B/A GEORGE CARDER PLUMBING COMPANY, DEFENDANTS-APPELLEES,

CANTEEN CORPORATION OF
OKLAHOMA, AN OKLAHOMA CORPORATION, DEFENDANT-APPELLANT.

KENNETH DAVID BOYLES AND DEBRA L. BOYLES, HUSBAND AND WIFE, PLAINTIFFS-APPELLEES,
v.
OKLAHOMA NATURAL GAS COMPANY, A FOREIGN CORPORATION; ACCURATE FIRE EQUIPMENT COMPANY, AN OKLAHOMA CORPORATION; JAY LEASING COMPANY, AN OKLAHOMA CORPORATION AND CANTEEN CORPORATION OF OKLAHOMA, AN OKLAHOMA CORPORATION, DEFENDANTS-APPELLEES,

GEORGE CARDER D/B/A GEORGE CARDER PLUMBING COMPANY, DEFENDANT-APPELLANT.

Appeal from District Court, Tulsa County; Wm. M. Means, Judge.

¶0 Action in negligent tort against four defendants to recover damages for injuries caused by a gas explosion. The trial court sustained one defendant's demurrer to plaintiff's evidence and there was a jury verdict against the remaining three defendants, two of whom bring separate appeals. Appeals consolidated and judgment

AFFIRMED.

Whitten, McDaniel, Osmond, Goree & Davies by Dale F. McDaniel, Tulsa, for appellant Canteen Corp.

Gibbon, Gladd, Clark, Taylor & Smith by Richard D. Gibbon and Brad Smith, Tulsa, for appellant George Carder, d/b/a George Carder Plumbing Co.

Parks & Beard by Michael J. Beard, Tulsa, for appellees Kenneth David Boyles and Debra L. Boyles.

Pierce, Couch, Hendrickson, Johnston & Baysinger by D.C. Johnston, Jr. and Calvin W. Hendrickson, Oklahoma City, for appellee Oklahoma Natural Gas Co.

OPALA, Justice:

[619 P.2d 615]

¶1 The 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?

¶2 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 free 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 the jury could find both codefendants - owner and plumber - negligent by reason of separate acts.

¶3 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.

¶4 Owner engaged Accurate Fire Equipment Company [Accurate], another codefendant, to install three identical 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 codefendant, 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

I.

ERROR IN SUSTAINING ONG'S DEMURRER TO PLAINTIFF'S EVIDENCE

¶5 Carder and Owner contend that ONG's demurrer to the plaintiff's evidence was improperly sustained.

[619 P.2d 616]

¶6 A demurrer is sustainable when there is an entire absence of proof to show any right to recovery.

II.

ERROR IN JURY'S FAILURE TO ASSESS PERCENTAGE OF NEGLIGENCE

ATTRIBUTABLE TO EACH DEFENDANT

¶7 The Owner and Carder assert error in trial court's refusal to instruct the jury separately to assess against each of the defendants the percentage of negligence found attributable to each. Both the Owner and Carder argue that Laubach v. Morgan

¶8 Laubach was a comparative negligence case, within the meaning of 23 O.S.Supp. 1978 § 11 ,

¶9 The common law 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 and foot, to the narrow parameters of a blameworthy plaintiff's claim.

¶10 Several liability, fashioned in Laubach, was held applicable in a comparative negligence context where the plaintiff was found to be one of several negligent co-actors. There is absolutely nothing in Laubach 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.

¶12 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

¶13 Carder asserts error in instructing the jury on Tulsa's mechanical code ordinance [619 P.2d 618] with respect to "shutting off" and "turning on" gas.

¶14 The violation of an ordinance is to be deemed negligence per se

IV.

REFUSAL TO INSTRUCT AGAINST FINDING NEGLIGENCE BY PLACING ONE

INFERENCE UPON ANOTHER

¶16 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 contains a correct statement of law,

V.

CLAIM TO ERROR IN ADMITTING TESTIMONY OF THE PLUMBER'S MODUS OPERANDI

¶17 Carder next asserts there was error in admitting testimony by a 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.

¶18 The authorities relied upon by Carder require that custom be pleaded where reliance is placed on its breach as a ground of [619 P.2d 619] negligence.

¶19 The injured party in the case at bar initially sought to predicate recovery against the defendants on res ipsa loquitur. Subsequently, as the 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.

VI.

ALLEGED INCONSISTENCY OF THE VERDICT

¶20 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.

¶21 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-a-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 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 The judgment is free from error.

¶24 AFFIRMED.

¶25 LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, BARNES, SIMMS, DOOLIN and HARGRAVE, JJ., concur.

Footnotes:

1 Both the injured passerby and his wife sought damages.

2 Both defendants filed a motion for new trial but only one of these defendants [Carder] included 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).

3 Martin v. Stratton, Okl., 515 P.2d 1366, 1368 [1973]; Tidewater Associated Oil Co. v. Slusser, Okl., 307 P.2d 827, 828 [1957].

4 Chaplinski v. Gregory, Okl., 559 P.2d 1244, 1248 [1977]; Steiger v. Commerce Acceptance of Oklahoma City, Inc., Okl., 455 P.2d 81, 86 [1969]; Lawson v. Lee Eller Ford, Inc., Okl., 375 P.2d 913, 916 [1962]; Evans v. St. Louis San Francisco Railway Co., Okl., 258 P.2d 933, 935-936 [1953].

5 Okl., 588 P.2d 1071 [1978].

6 Repealed by Okla.Sess.L. 1979, c. 38 § 4 and replaced by 23 O.S.Supp. 1979 § 13 .

7 McNichols, Judicial Elimination of Joint and Several Liability Because of Comparative Negligence A Puzzling Choice, 32 Okla.L.Rev. 1, 11 and 12 [1979].

8 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.

9 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 Negligence - A Puzzling Choice, supra note 7 at 27.

10 Arkansas has retained the concept of joint and several liability. Walton v. Tull, 356 S.W.2d 20, 26 [Ark. 1962]; Wheeling Pipe Line, Inc. v. Edrington, 535 S.W.2d 225, 226 [Ark. 1976]. California also retained joint and several liability rule, finding, along with the great majority of jurisdictions, that it does not conflict with comparative negligence theory. See American Motorcycle Ass'n. v. Superior Court, 578 P.2d 899, 901 [Cal. 1978]. Texas' comparative negligence statute provides that each defendant is jointly and severally liable for the entire amount, except that a defendant whose negligence is less than that of the plaintiff is liable only for that portion of the judgment which is attributable to him. Wisconsin provides for "comparative contribution" among joint tortfeasors in proportion to the party's negligence. See Bielski v. Schulze, 114 N.W.2d 105, 108 [Wis. 1962].

11 National Trailer Convoy, Inc. v. Oklahoma Turnpike Authority, Okl., 434 P.2d 238, 240 [1967]; Okla. Ry. Co. v. Ivery, 201 Okl. 245, 204 P.2d 978, 982 [1949]; Selby Oil and Gas Co. v. Rogers, 94 Okl. 269, 221 P. 1012, 1013 [1924]; Northup v. Eakes, 72 Okl. 66, 178 P. 266, 268 [1919].

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.

12 Note Multiple Party Litigation Under Comparative Negligence in Oklahoma - Laubach v. Morgan, 13 Tulsa L.J. 266, 269 and 280 [1977].

13 Green v. Sellers, Okl., 413 P.2d 522, 528 [1966]; W.L. Hulett Lumber Co. v. Bartlett-Collins Co., 206 Okl. 93, 241 P.2d 378, 383 [1952]; Oklahoma Ry. Co. v. Ivery, supra note 11.

14 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].

15 Harbour-Longmire Bldg. Co. v. Carson, 201 Okl. 580, 208 P.2d 173, 175 [1949].

16 Foster v. Harding, Okl., 426 P.2d 355, 358 [1967]; Elam v. Loyd, 201 Okl. 222, 204 P.2d 280, 282 [1949].

17 12 O.S. 1971 § 78 ; Coker v. Southwestern Bell Telephone Co., Okl., 580 P.2d 151, 154 [1978]; Barger v. Mizel, Okl., 424 P.2d 41, 47 [1967]; Lawson v. Anderson and Kerr Drilling Co., 184 Okl. 107, 84 P.2d 1104, 1105 [1938].

18 W.L. Hulett Lumber Co. v. Bartlett-Collins Co., supra note 13; Elam v. Loyd, supra note 16.

19 Fellers v. St. Louis-San Francisco Ry. Co., Okl., 572 P.2d 972 [1978]; Harper v. Levine's, Inc., Okl., 435 P.2d 127 [1967]; Sanders v. C.P. Carter Construction Co., 206 Okl. 484, 244 P.2d 822 [1952].

20 Fellers v. St. Louis-San Francisco Ry. Co., supra note 19, at 975; Davis v. Whitsett, Okl., 435 P.2d 592, 597 [1967].

21 Raimer v. Donelson, 200 Okl. 695, 199 P.2d 1018, 1019 [1948]; Phillips Petroleum Co. v. Stephenson, 191 Okl. 294, 129 P.2d 575 [1942].

22 Davis v. Whitsett, supra note 20, at 595; Porter v. Norton Stuart Pontiac-Cadillac of Enid, Okl., 405 P.2d 109, 113-114 [1965]; Safeway Stores v. Duvall, 208 Okl. 21, 252 P.2d 1022, 1025 [1953].

23 Green v. Sellers, supra note 13; Oklahoma Gas and Electric Co. v. Butler, 190 Okl. 393, 124 P.2d 397 [1942].

24 Green v. Sellers, supra note 13; Oklahoma Gas and Electric Co. v. Butler, supra note 23.