Citizens Gas & Oil Mining Co. v. Whipple
| Decision Date | 13 January 1904 |
| Docket Number | 4,522 |
| Court | Indiana Appellate Court |
| Parties | CITIZENS GAS & OIL MINING COMPANY v. WHIPPLE ET AL |
From Adams Circuit Court; Abram Simmons, Special Judge.
Action by Stephen A. D. Whipple and another against the Citizens Gas & Oil Mining Company. From a judgment for plaintiffs defendant appeals.
Affirmed.
D. T Taylor, W. F. MacGinnitie, T. J. Taylor, D. B. Erwin, Shaffer Peterson and J. J. M. LaFollette, for appellant.
Appellees recovered a judgment for the burning of certain property, caused by appellant's alleged negligence. The sufficiency of the complaint, which is in three paragraphs, is first questioned.
The first paragraph avers that appellant was engaged in supplying citizens with natural gas for domestic and manufacturing purposes; that appellees were patrons of appellant, and were using gas, under a contract, in a stove in their factory; that the natural pressure of the gas is so great that it is necessary at all times to maintain regulators, which regulators were maintained by appellant, to control the flow of gas, and make the use of the same safe for consumers, and that it is necessary that the pipelines and regulators should be under the control and management of a skilled person, to oversee and control the same, that gas might be furnished to consumers at a low, safe, and uniform pressure; that on a certain date such regulators did not properly control the pressure and flow of gas so as to furnish appellees' stove with gas at a safe, low, even, and uniform pressure; that appellant carelessly and negligently failed to regulate and maintain such regulators on such date, and negligently and carelessly failed and neglected to watch and oversee the mains, regulators, and appliances, and negligently and carelessly left such regulators and appliances without the oversight or supervision of any person, and because of such carelessness and negligence the gas flowed in and through the pipes and regulators with great force and high pressure, thereby forcing through the service pipe and into the stove, when the gas was burning therein, a large quantity and volume of gas, largely in excess of the amount theretofore supplied by appellant for heating purposes, and by reason thereof the stove was, by the gas burning therein, so intensely heated that it set fire to the building, all without appellees' fault. The three paragraphs of complaint are quite voluminous, and the material averments in each paragraph are substantially the same.
The action is in tort, and not for damages for breach of a contract. It is true, the complaint alleges that appellees were receiving gas under a contract, but the cause of action is based upon negligence. Indianapolis, etc., Gas Co. v. Anthony, 26 Ind.App. 307, 58 N.E. 868; Coy v. Indianapolis Gas Co., 146 Ind. 655, 36 L. R. A. 535, 46 N.E. 17. Each paragraph of the complaint shows that appellant was furnishing natural gas to appellees; that it negligently failed to regulate the flow of gas into the pipes leading to appellees' stove, by reason of which the pressure and quantity of gas were increased beyond that theretofore supplied, to such an extent that the stove was overheated, setting fire to the property, without appellees' fault. Under the authorities the complaint states a cause of action. Alexandria Mining, etc., Co. v. Painter, 1 Ind.App. 587, 28 N.E. 113; Indiana, etc., Gas Co. v. New Hampshire Ins. Co., 23 Ind.App. 298, 53 N.E. 485; Ibach v. Huntington Light, etc., Co., 23 Ind.App. 281, 55 N.E. 249.
Appellant's answer was in three paragraphs, the first of which was the general denial. As the material facts pleaded in the second and third paragraphs of answer were provable under the general denial, sustaining the demurrer to these paragraphs was not harmful error. Any fact or facts showing or tending to show that appellant's gas system at the time of the fire was properly managed, that it was not negligent in any of the particulars charged in the complaint, and that appellees were not without fault, could be shown under the general denial. Wabash, etc., R. Co. v. Johnson, 96 Ind. 44; Crow v. Carver, 133 Ind. 260, 32 N.E. 569.
Appellant's counsel have discussed, at some length, the evidence upon the questions of negligence and contributory negligence. No good purpose would be subserved by a discussion of the evidence at this time. It is sufficient to say that an examination of the record discloses evidence to authorize the jury's conclusion upon both these questions.
An objection to evidence that it is not competent nor material presents no question for review. Mortgage Trust Co. v. Moore, 150 Ind. 465, 50 N.E. 72; Western Assur. Co. v. McAlpin, 23 Ind.App. 220, 77 Am. St. 423, 55 N.E. 119.
Many objections to the admission of evidence are argued in appellant's brief where no reference is made to the bill of exceptions by which the evidence and the ruling questioned may be found. It has long been the rule that the court will not search the record for such evidence and rulings. Ewbank's Manual, § 180; McCaslin v. Advance Mfg. Co., 155 Ind. 298, 58 N.E. 67; Rule 22, subdivision 5.
Appellant's counsel have not shown that the error, if any, was harmful, in permitting the introduction in evidence of a certified copy of a certain deed to the land on which the buildings burned were situated. Its introduction in evidence would in no way harm appellant.
Appellee Whipple was recalled as a witness by appellant, and asked whether after the fire he did not circulate a paper among the citizens and get from five to six hundred dollars in cash and material for the purpose of reimbursing him for the loss by the fire. Upon objection being sustained, an offer was made to show that by such subscriptions he had received a greater sum than the loss by the fire, "and for the further purpose of showing that at the time of the fire the plaintiffs were not claiming that the fire occurred by reason of any act or omission on the part of the defendant gas company." This evidence might have been admitted, with an instruction properly limiting its purpose, as going to the credibility of the witness who was a party to the action, but its exclusion is not reversible error. It was not proper evidence as affecting the amount of damages. The subscriptions were not made by appellant or by its procurement, and were not made to satisfy, in whole or in part, appellant's liability for the alleged wrongful act. Cunningham v. Evansville, etc., R. Co., 102 Ind. 478, 52 Am. Rep. 683, 1 N.E. 800; Sherlock v. Alling, 44 Ind. 184; Ohio, etc., R. Co. v. Dickerson, 59 Ind. 317.
At the request of appellees the court gave, among others, the following instructions: ...
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