Barrickman v. Marion Oil Co.
| Citation | 32 S.E. 327,45 W.Va. 634 |
| Parties | BARRICKMAN v. MARION OIL CO. |
| Decision Date | 14 December 1898 |
| Court | West Virginia Supreme Court |
Submitted Sept.13, 1898.
Syllabus by the Court.
1. A person or corporation engaged in furnishing natural gas to stoves, heaters, pipes, etc., for purposes of domestic light heat, and fuel in a dwelling house, is bound to exercise such care, skill, and diligence in all its operations as is called for by the delicacy, difficulty, and dangerousness of the nature of the business, that injury to others may not be caused thereby; that is to say, if the delicacy, difficulty and danger are extraordinarily great, extraordinary skill and diligence is required.
2. If the defendant, so furnishing such gas, negligently and carelessly suffer and permit a greater amount of pressure of said gas to be furnished than is reasonably proper for said purpose, by reason whereof the house or building being so furnished is consumed or injured by fire, resulting from such negligence, the defendant is liable in damages for such loss.
3. If such defendant suffer and permit its regulators or other appliances to be and remain for an unreasonable time in such condition that they do not control the amount and pressure of gas so furnished, so that more than a safe and proper amount of gas is so furnished, the defendant is guilty of negligence, and liable in damages for injuries proximately caused by such negligence.
4. If such injury is the natural consequence of such negligence and such as might have been foreseen and reasonably anticipated as the result of such negligence, then such negligence must be regarded as the proximate or direct cause of the injury, in the absence of intervening negligence.
5. The mere fact that a building so furnished with gas was set on fire from the gas is not sufficient to justify the inference that an increased pressure of gas caused the fire.
6. In the trial of an action against a corporation so furnishing natural gas to a dwelling house, for damages for causing the destruction of such house by fire by negligently permitting too great a pressure of gas, it is not competent to prove by a witness the bare fact of what pressure the gauge of another gas company usually indicated.
Error to circuit court, Monongalia county; J. M. Hagans, Judge.
Action by Franklin Barrickman against the Marion Oil Company. Verdict for plaintiff, and defendant brings error. Reversed.
A. B. Fleming and U. N. Arnett, for plaintiff in error.
Cox & Baker, for defendant in error.
Franklin Barrickman brought his action of trespass on the case in the circuit court of Monongalia county against the Marion Oil Company, claiming damages for the destruction of a dwelling house, owned by him, by fire, occasioned by the negligence of the defendant in furnishing natural gas at said house for domestic purposes. On the 18th of February, 1896, defendant appeared, and demurred to the declaration, and to each count in which plaintiff joined, and of which the court took time to consider. On the 24th of the same month the court overruled the demurrer, and the defendant pleaded to the general issue. Plaintiff filed an amended declaration, when defendant again demurred to plaintiff's whole declaration, and to each count, which demurrers were overruled by the court, and defendant entered its plea of not guilty to both the declaration and the amended declaration. A jury was duly impaneled, the case tried, and on the 20th of February, 1897, the jury rendered a verdict for plaintiff, and assessed his damages at $1,000. Defendant moved the court to set aside the verdict, and grant it a new trial, because the verdict was contrary to the law and the evidence, for permitting improper evidence to go to the jury, for rejecting proper and material evidence offered by defendant, because the court gave several improper instructions on behalf of the plaintiff, and rejected and refused to give proper instructions offered by defendant, and in not giving instructions asked for by defendant in the form as prepared by defendant, and in modifying and making changes therein and additions thereto, and in giving them in such changed and modified form; which motion to set aside the verdict and grant a new trial was overruled and denied, and defendant excepted, and the court entered a judgment on said verdict against the defendant. Defendant took nine several bills of exception, which were severally signed, sealed, and made a part of the record. The defendant applied for and obtained a writ of error, assigning as error the overruling of the demurrers to the declaration, and the amended declaration, and to each count; the permitting of improper evidence on behalf of plaintiff to go to the jury, as set out in bills of exception 5, 6, 7, 8, and 9; in giving plaintiff's instructions, and each of them, and in refusing defendant's instructions 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13, and each of them; and in refusing to give defendant's instruction No. 8 in the form prepared and requested by defendant, and in amending the same by making addition thereto by the court, and in giving same to the jury in the form as shown by bill of exception No. 4. It is claimed that the demurrer to the declaration and to each count should have been sustained. There are three counts, two in the original and one in the amended declaration; and it is claimed by appellant that these counts are inconsistent (especially the one in the amended declaration) with those contained in the original declaration. In the latter (the original) it is averred that the dwelling house destroyed was the property of the plaintiff, and makes no mention of the fact that it was occupied, or in possession of a tenant or agent. In the amended declaration it is averred to be the property of and owned by plaintiff, while it is in the possession of one Milton Rinehart as the lessee thereof, and from the plaintiff. It is no less the property of plaintiff, being in the possession of plaintiff by his tenant than if the possession was held by him in person, and the third count, or amended declaration, is simply to show the manner of the possession of the owner of the property, and is an eminently proper count. It is insisted that because it is averred, in substance, in all the counts, that it was the duty of defendant to control and regulate the quantity and pressure of gas in such manner that only such quantity and pressure as was necessary for fuel and domestic heat for said dwelling house should be furnished, the demurrers should have been sustained that the degree of diligence set forth in each count is greater than is required by law. Appellant says that: "If it can be claimed that because natural gas is a very dangerous substance, etc., and that, under certain circumstances, more than ordinary care can be required of a person or company furnishing it, such a rule would not apply in this case, as it is shown the appellant only had what is known as a 'high-pressure line' for its own use, and that the appellee and a few other householders in a small village were allowed to connect therewith for their own accommodation by means of their own gas line, called a 'service line,' and which was as much a 'gas line' as was the appellant's main." This may all be well said in the course of the trial on the merits of the case, but not on demurrer. It nowhere appears in the declaration that defendant had only what is known as a "high-pressure line" for its own use, and a few householders connected with it for their own accommodation. The theory of the declaration is that defendant was in possession of certain wells producing natural gas, and was engaged in the business of furnishing gas through its pipe lines to consumers for fuel and domestic heating purposes for consideration, and it is averred that it was so furnishing such gas to the said dwelling house, the property of said plaintiff, under contract, for valuable consideration, and, being so engaged, it was the duty of defendant to properly control and regulate the quantity and pressure of the said natural gas so far as same was necessary for fuel and domestic heat, which should be so furnished by it to and for said dwelling house; and then it is averred that on the day, etc., and at the county of Monongalia, the defendant wrongfully, negligently, and unlawfully caused, suffered, and permitted the said natural gas to run, flow, and pass out of and from the said wells producing natural gas, and out of and from the said lines of pipe, machinery, and apparatus of which the defendant was possessed, in and into and through the said burners, heaters, stoves, grates, pipes, lines of pipe of plaintiff (which were averred to be in good repair, and fit for the purposes for which they were used), in so great and large quantities, and with so great a pressure, that the said burners, heaters, etc., of plaintiff were then and there forced open, broken, thrown apart, and burst, and by reason thereof the said great and large quantities of gas did escape and pass out of said pipes, burners, etc., in and into the said dwelling house, and was ignited burned, and exploded by the fires then and there lawfully kept, and being in the burners, heaters, etc., by which means the said house was burned and destroyed. "The object of the declaration is to set forth the facts which constitute the cause of action so that they may be understood by the party who is to answer them by the jury, who are to ascertain the truth of the allegations, and the court, who is to pronounce judgment." Hogg, Pl. & Prac. § 140; Berns v. Coal Co., 27 W.Va. 285; Snyder v. Electrical Co., 43 W.Va. 661, 28 S.E. 733. The declaration in the case at bar is sufficient, and the court did not err in overruling the demurr...
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