218 N.E.2d 556 (Ind.App. 1966), 20420, Roberts v. Indiana Gas & Water Co.

Docket Nº:20420.
Citation:218 N.E.2d 556, 140 Ind.App. 409
Party Name:John D. ROBERTS, Appellant, v. INDIANA GAS AND WATER CO., Inc., Appellee.
Case Date:July 28, 1966
Court:Court of Appeals of Indiana

Page 556

218 N.E.2d 556 (Ind.App. 1966)

140 Ind.App. 409

John D. ROBERTS, Appellant,

v.

INDIANA GAS AND WATER CO., Inc., Appellee.

No. 20420.

Appellate Court of Indiana, In Banc.

July 28, 1966

[140 Ind.App. 410]

Page 557

James D. Lopp and John D. Clouse, Evansville, for appellant.

Hugh E. Reynolds, Locke, Reynolds, Boyd & Weisell, Indianapolis, and J. Lloyd Fitzpatrick, Indianapolis, Hastings & Allen, Washington, of counsel, for appellee.

[140 Ind.App. 411] HUNTER, Judge.

This is an appeal from the lower court's action in sustaining the demurrer of the defendant-appellee. The plaintiff-appellant refused to plead over. The appeal was brought on the alleged error of the trial court's ruling that the second paragraph of the fourth amended complaint (hereinafter referred to as complaint) failed to state facts sufficient to constitute a cause of action. The appellee also filed a motion to make the said second paragraph of complaint more specific which said motion was overruled by the lower court. Consequently, on this appeal in construing the sufficiency of the complaint, we are limited to a consideration of the facts well pleaded without any factual conclusions whatsoever in support of the appellant's cause of action. Terre Haute, etc., Traction Co. v. Phillips (1921), 191 Ind. 374, 132 N.E. 740.

On the demurrer in this case, the facts well pleaded and which shall be taken as true are as follows:

(1) The appellant was on the exterior of a building to which the gas company supplied gas.

(2) Two workmen of a plumbing contractor were connecting the gas lines to some appliances in the process of which they had to bleed the gas lines within the building.

(3) In bleeding the gas lines, the two workmen used their sense of smell to assure that gas was not escaping.

(4) The appellee knew of this common procedure and reliance.

(5) In order for this practice to be effective, the gas must be odorized.

(6) It was the long established custom of the appellee to odorize the gas.

(7) While the two workmen were bleeding the lines, gas was escaping into the building, which subsequently exploded causing injury to the appellant.

(8) The appellant asserts that the proximate cause of said explosion was the negligence of the appellee in failing to odorize the gas.

[140 Ind.App. 412] The appellee in its memorandum stated two (2) points which are argued here on appeal by the appellant. We shall discuss them in the order presented.

First, the appellee in its brief and memorandum to the demurrer states that the appellant's complaint 'fails to allege any facts sufficient in law to show that this defendant breached and violated a duty owing to the defendant'. The appellee continues by stating that the complaint fails to state facts sufficient to show that the appellee was under a legal duty to odorize the gas. It is rather difficult to understand whether

Page 558

(1) the appellee is stating that appellant did not properly plead enough facts according to and consistent with the rules of pleading, or (2) whether under the circumstances such facts could ever be pleaded as a matter of law. Therefore, we shall address ourselves to both problems.

In the instant case, it is our opinion that the question of whether the appellee should have odorized the gas is not necessarily a question of legal duty per se. In negligence it is axiomatic that there must be a duty owed by a defendant to a plaintiff, and that there was a breach of said duty proximately resulting in the injury or damage claimed by the plaintiff. In the facts at bar, it is alleged that the appellee is under a duty to produce and distribute its gas in a reasonably safe and prudent manner. This is a legal duty and in the facts at bar, which as pleaded may well be construed to be a duty owed to the general public. The question of whether the appellee (corporation) should have odorized its gas is part of the question of the standard of reasonable care to be used in judging the conduct of the appellee in the exercise of its duty, i.e., was the conduct of the appellee in failing to odorize said gas reasonable and prudent in the exercise of the duty of due care in the production and distribution of natural gas? If the appellee is contending that the conduct of odorizing gas is not the conduct of a reasonable and prudent man (corporation), this we cannot completely answer for such is a question of fact for the jury.

[140 Ind.App. 413] However, the issue presented in the case at bar may be a question of law to the extent that a party engaged in the production and distribution of natural gas is bound to odorize such gas in the exercise of reasonable care. In the case at bar, the appellant alleges that the standard of reasonable care requires that the appellee should have odorized the gas due to the following:

(1) 'it is both in keeping with due care in the sale of the defendant's gas products', and such practice

(2) 'was and is the custom of the defendant, well established by its long practice and community wide usage * * *.'

We do not deem it necessary to pass on the question of whether or not the law recognizes that a reasonable and prudent distributor of...

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