Kolster v. American Gas Co.

Citations

• 106 Kan. 84
• 186 P. 738

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — A Discretionary Writ. Mandamus is a discretionary writ, and it should not issue to compel the performance of an act which would be fraught with danger to life and property.</p> <p>2. Same — Gas Service Shut Off by Gas Company — Leaking Gas Pipes in Residence — Writ Denied. The plaintiffs were tenants of a residence equipped for gas service. They asked the defendant gas company to serve them with gas from its mains in the adjacent street. The defendant complied, but made the discovery that the gas pipes in the plaintiffs’ residence were leaking and promptly shut off the gas. The plaintiffs applied for a writ of mandamus. Defendant pleaded the defective condition of the residence gas pipes and the danger to life and property and the consequent liability which defendant might incur by compliance. The evidence of both parties was in substantial accord as to the condition of the gas pipes in the residence, and the fact of the defects and danger was established; but it was shown by plaintiffs’ evidence that an entirely different and insufficient reason was given by the gas company before the action was begun for withholding the service demanded. Held, notwithstanding the insufficient excuse given by defendant for withholding the service before the plaintiffs applied for mandamus, the facts pleaded and proved disclose that the larger interest of the public in the safety of life and property required that the gas should not be turned into the leaking pipes, and the writ of mandamus should be denied.</p>