Alexandria Mining & Exploring Co. v. Painter

• Decision Date: 10 June 1891
• Citation: 28 N.E. 113,1 Ind.App. 587
• Parties: Alexandria Mining & Exploring Co. et al. v. Painter et ux.
• Court: Indiana Appellate Court

1 Ind.App. 587

28 N.E. 113

Alexandria Mining & Exploring Co. et al.

v.Painter et ux.

Appellate Court of Indiana.

June 10, 1891.

Appeal from circuit court, Madison county; M. A. Chipman, Judge.

M. S. Robinson, J. W. Lovett, and S. M. Keltner, for appellant. Chas. L. Henry, for appellees.

REINHARD, J.

The complaint in this action is as follows: “The plaintiffs, Alfred M. Painter and Samantha Painter, complain of the defendants, Alexandria Mining and Exploring Company, Samuel E. Young, Joseph J. Pickard, Arthur E. Harlan, and Edward B. Chamness, and say that on the 19th day of November, 1887, the plaintiffs were the owners in fee of the following real estate in Madison county, in the state of Indiana, to-wit: Lot number six (6) in the town of Alexandria, on which was situated a dwelling-house of the value of $1,200. That on said day, and for a long time prior thereto, the defendants, under the firm name and style of J. J. Pickard & Co., were running and operating a natural gas well and a natural gas plant in said town, for the purpose of furnishing the residents of said town with natural gas for heating and illuminating purposes; and for that purpose had their pipes, regulators, and other apparatus laid and placed in and along the streets of said town. That at said date, and for many months prior thereto, the plaintiffs occupied as a residence the dwelling-house situated on said lot; and on said day were living therein, together with other members of their family; and on said day, and prior thereto, these plaintiffs were customers of the defendants, and under contract with the defendants under the name of J. J. Pickard and Co., had their stoves in said residence connected with said natural gas mains, and were using natural gas in said residence from said mains and pipes for heating two stoves; and on said date the defendants, by themselves, their agents and employes, had the pressure of gas in their said mains and pipes in said town as high or higher than the same should and ought to have been kept, and at the pressure where it had been maintained for several weeks, and to which pressure these plaintiffs and other consumers had been accustomed. That on said day the defendants, by themselves, their agents and employes, without any notice to these plaintiffs, and without any knowledge or information on their part, negligently, recklessly, carelessly, and unskillfully, and without due regard to the safety of the property and lives of these plaintiffs and other citizens of said town, increased the pressure of the gas on said gas mains and pipes to double that at which it had been kept and maintained; and by reason of said careless and negligent conduct of the defendants, their agents and employes, the fire that was burning in one of plaintiffs' stoves in said residence, with natural gas from the said mains and pipes of the defendants, was so increased and intensified, all without notice to or knowledge on the part of plaintiffs, that the stove was heated to a red-hot condition, and the blaze and flames therefrom passed up through the stove-pipe and into the chimney above, heating the same to such an extent that the timbers and other material of said building, and other articles of property near to said stove, stove-pipe, and chimney, were, by reason and on account thereof, set on fire; and the said residence, and all the personal property aforesaid situated therein, were thereby and by reason thereof burned and destroyed by fire, to the damage of plaintiffs in the sum of $2,000; all without any fault or negligence on the part of plaintiffs. Wherefore plaintiffs pray judgment against the defendants for the sum of $2,000, and for all other necessary and proper relief.”

The appellant demurred to the complaint, and for cause alleged that the same did not constitute facts sufficient to constitute a cause of action against the appellant. The demurrer was overruled, and an exception saved. The overruling of the demurrer is the first error assigned. The specific objection which the appellant urges to the complaint is that it does not show with sufficient certainty that the appellees were free from contributory negligence. We think the complaint sufficiently shows that the injury was caused by the negligence of the defendants, and the general averment that it all occurred without any fault or negligence of the plaintiffs is sufficient to overcome the objection urged. City of Elkhart v. Witman, 122 Ind. 538, 23 N. E. Rep. 796; City of Columbus v. Strassner, 124 Ind. 482, 25 N. E. Rep. 65. The demurrer was properly overruled. The defendants answered the general denial, and upon issues thus joined the cause was submitted for trial to a jury, who returned the following verdict: “We, the jury, find for the plaintiffs as against the defendants the Alexandria Mining and Exploring Company, and assess the damages at $500.” There was a motion by all the defendants for a venire de novo. The court sustained the motion as to all the defendants but the appellant, and overruled the motion as to it. This ruling constitutes the second alleged error. It is insisted by the appellant that the verdict “is so uncertain and ambiguous that the court could not render judgment upon it.” This ambiguity, the appellant claims, consists in the use of the word “defendants” in place of “defendant.” There can be no uncertainty or ambiguity in the meaning of the verdict. It is quite clear that the jury found only against the one defendant, and the use of the plural noun instead of the singular was evidently a mere clerical error. The omission to find in favor of or against the other defendants is not a ground for a venire de novo. Such a motion will not be...