City of Indianapolis By and Through Bd. of Directors for Utilities of Dept. of Public Utilities v. Bates, 19850

• Decision Date: 12 April 1965
• Docket Number: No. 1,No. 19850,19850,1
• Citation: 137 Ind.App. 227,205 N.E.2d 839
• Parties: CITY OF INDIANAPOLIS, By and Through its BOARD OF DIRECTORS FOR UTILITIES OF its DEPARTMENT OF PUBLIC UTILITIES, Doing Business as Citizens Gas and Cike Utility, a Municipal Corporation , v. Donald R. BATES, Jeanne Bates, Sears, Roebuck & Co., a Foreign Corporation, Appellees
• Court: Indiana Appellate Court

Page 839

205 N.E.2d 839

137 Ind.App. 227

CITY OF INDIANAPOLIS, By and Through its BOARD OF DIRECTORS FOR UTILITIES OF its DEPARTMENT OF PUBLIC UTILITIES, Doing Business as Citizens Gas and Cike Utility, a Municipal Corporation , v. Donald R. BATES, Jeanne Bates, Sears, Roebuck & Co., a Foreign Corporation, Appellees.

No. 19850.

Appellate Court of Indiana, Division No. 1.

April 12, 1965.

Rehearing Denied May 26, 1965.

[137 INDAPP 229]

Patrick, J. Smith, James R. McClarnon, Indianapolis, Emerson J. Brunner, Shelbyville, Thompson O'Neal & Smith, Indianapolis, Brunner, Brown & Brunner, Shelbyville, of counsel, for appellant.

Robert Sheaffer, Shelbyville, Patrick, J. Barton,[137 INDAPP 230] Wilma Turner Leach, Indianapolis, for appellees, Donald R. Bates and Jeanne Bates.

MARTIN, Judge.

This is a civil action brought by appellees Donald R. Bates and Jeanne Bates, asking damages growing out of an explosion and fire of their house and personal property. Trial was by jury, which resulted in a verdict for appellees Donald R. Bates and Jeanne Bates, assessing damages at $8000. Judgment was duly entered on the verdict.

The appellee Sears, Roebuck & Co. was dismissed from this appeal.

The appellant has assigned as errors as follows:

'The appellant avers that there is manifest error in the judgment and proceedings in this case, which is prejudicial to appellant in this:

'1. The court erred in overruling appellant's demurrer to appellees' complaint.

'2. The court erred in overruling appellant's motion for judgment on the jury's answers to interrogatories notwithstanding the verdict.

[137 INDAPP 231] '3. The court erred in overruling appellant's motion for a new trial.'

The appellant's motion for a new trial was based on the following grounds:

'1. The court erred as a matter of law occurring before the trial in overruling defendant's demurrer to plaintiffs' complaint, which demurrer was on the ground that several causes of action had been improperly joined.

'2. The court erred in overruling defendant's motion made at the close of plaintiffs' evidence to instruct the jury to return a verdict for the defendant on legal paragraph 1 of plaintiffs' complaint.

'3. The court erred in overruling defendant's motion at the close of all the evidence to instruct the jury to return a verdict of the defendant on legal paragraph 1 of plaintiffs' complaint.

'4. The verdict of the jury is not sustained by sufficient evidence.

'5. The verdict of the jury is contrary to law.

'6. There was error in assessing the amount of recovery, it being too large.

'7. The court erred in overruling defendant's motion made before judgment to enter judgment against the plaintiffs on the answers to interrogatories returned by the jury herein and notwithstanding the general verdict, which motion was on the ground that said answers are in irreconcilable conflict with the general verdict.'

The trial court overruled the motion for a new trial.

The first ground under the motion for a new trial assigned by the appellant was the overruling of defendant's (appellant) demurrer to plaintiffs' complaint for the following reason:

'That several causes of action have been improperly joined.'

Appellant's demurrer was overruled.

The appellant's first ground for new trial is not a ground for reversal. In the case of Gary-Hobart Sav. & Loan Assn. v. Strong (1934) 99 Ind.App. 422, 426, 190 N.E. 373, 374, the court said:

'And even if there was a misjoinder of causes of action herein, and we are not admitting such to be the fact, such error is harmless * * * [Indiana Statutes Ann.Burns Sec. 2-1009] * * * 'No judgment shall ever be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action."

Morgan v. Henry Brick Co. (1931), 92 Ind.App. 478, 176 N.E. 237; Coan v. Grimes (1878), 63 Ind. 21.

[137 INDAPP 232] In the case of Kahle v. Crown Oil Co. (1913), 180 Ind. 131, 138, 100 N.E. 681, 685, the Supreme Court said:

"No judgment shall be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action.' [Indiana Statutes Ann.Burns Sec. 2-1009 * * *]. The above section expressly prohibits a review of a judgment expressly overruling a demurrer for misjoinder of causes of action.'

Pittsburgh, etc., R. Co. v. Brown (1912), 178 Ind. 11, 97 N.E. 145, 98 N.E. 625; Boonville Nat. Bank v. Blakey (1906), 166 Ind. 427, 76 N.E. 529; Brown v. Bernhamer (1902), 159 Ind. 538, 65 N.E. 580; Carger v. Fee et al. (1895), 140 Ind. 572, 39 N.E. 93; Coan v. Grimes, supra; City of Huntington v. Stemen (1906), 37 Ind.App. 553, 77 N.E. 407.

Under our statutes (Burns Sec. 2-1009 1946 Replacement) a reversal of judgment for overruling a demurrer for misjoinder of causes of action is expressly prohibited. Pittsburgh, etc., R. Co. v. Brown, supra; Boonville Nat. Bank v. Blakey, supra; Brown v. Bernhamer, supra; Murphy v. Branaman, Adm. (1901), 156 Ind. 77, 59 N.E. 274; Armstrong et al. v. Dunn et al. (1896), 143 Ind. 433, 41 N.E. 540.

We hold that there was no reversible error committed by the trial court in overruling the defendant's (appellant) demurrer.

The 7th ground, under the motion for a new trial, reads as follows:

'7. The court erred in overruling defendant's motion made before judgment to enter judgment against the plaintiffs on the answers to interrogatories returned by the jury herein and notwithstanding the general verdict, which motion was on the ground that said answers are in irreconcilable conflict with the general verdict.'

Under the argument portion of appellant's brief [137 INDAPP 233] 'B', interrogatories 14, 15, 16 and 17, and the jury's answers were as follows:

'14. Did the plaintiffs ever notice any gas smell in their home after December 20, 1956, down to and including June 30, 1958?

'Answer: No.

'15. Did plaintiffs ever notify defendant Citizens Gas of any gas leaks in plaintiffs' home after December 20, 1956, up to and including June 30, 1958?

'Answer: No.

'16. Was the gas range in plaintiffs' home at 3721 Pleasant Run Parkway, South Drive, Indianapolis, Indiana, connected to the gas line with a copper tube or tubing?

'Answer: No.

'17. Was the gas range in plaintiffs' home at 3721 Pleasant Run Parkway, South Drive, Indianapolis, Indiana, connected to the gas line with a flexible brass tube or tubing?

'Answer: Yes.'

The specific acts of negligence complained of in appellees' paragraph I of complaint are herein set out in rhetorical paragraph 13.

'13. Acting by and through its agents and employees, Defendant Citizens Gas was careless and negligent in the following particulars:

'(a) It carelessly and negligently failed to warn Plaintiffs that flexible brass hose was prohibited as unsafe for use in connecting domestic gas ranges with house piping, and was unsafe for use in connecting the gas range in Plaintiffs' house with the pipe running to the gas mater.

'(b) It carelessly and negligently failed to test the flexible brass hose and its fittings and connections, through which gas was supplied to the range, in order to determine whether or not said hose, fittings, and connections were gas-tight, although it had been notified by Plaintiffs that gas was leaking at the range.

[137 INDAPP 234] '(c) It carelessly and negligently failed to inspect the fittings and connections between the flexible brass hose and the house pipe leading to the meter to determine whether or not said hose was properly connected to carry gas safely from the meter to the range, although it had been notified that gas was leaking at the range.

'(d) It carelessly and negligently failed to discover that the flexible brass hose and its fittings and connections, through which gas was supplied to the range, were defective and unsafe and unlikely [likely] to permit the escape of gas and cause damage to Plaintiffs and their property, when it knew or in the exercise of reasonable care should have known that said hose, fittings, and connections were defective and unsafe.

'(e) It carelessly and negligently failed to repair or replace the flexible brass hose and its fittings and connections, through which gas was supplied to the range, although it knew or in the exercise of reasonable care should have known that said hose, fittings, and connections were defective and unsafe and likely to permit the escape of gas and cause damage to Plaintiffs and their property.

'(f) It carelessly and negligently failed to shut off the supply of gas to Plaintiffs' premises after it knew or in the exercise of reasonable care should have known that the flexible brass hose and its fittings and connections, through which gas was supplied to the range, were defective and unsafe and likely to permit the escape of gas and cause damage to Plaintiffs and their property.'

In Tribune-Star Publ. Co. v. Fortwendle (1953), 124 Ind.App. 618, 622, 115 N.E.2d 215, 216, (transfer denied), the court said:

'However, it is also true that, in determining whether there is a conflict between the general verdict and the answers to interrogatories, every reasonable presumption and inference must be indulged in favor of the general verdict, and nothing will be presumed or inferred in favor of the answers to interrogatories as against the general verdict.'

Gary Railways v. Dillon (1950), 228 Ind. [137 INDAPP 235] 558, 92 N.E.2d 720; Neuwelt v. Roush (1949), 119 Ind.App. 481, 85 N.E.2d 506, (transfer denied); Tucker Freight Lines, Inc. v. Gross (1941), 109 Ind.App. 454, 33 N.E.2d 353, (transfer denied).

On appeal, the reviewing court will consider only the pleadings, general verdict and interrogatories and answers, in determining whether a judgment should have been entered on answer to interrogatories. Denham et al. v. Degymas et al. (1958), 237 Ind. 666, 147 N.E.2d 214; Inter State Motor Freight System v. Henry (1942), 111 Ind.App. 179, 38 N.E.2d 909, (transfer denied); Fostoria Oil Co. v. Gardner (1919), 72 Ind.App. 509, 124 N.E. 467.

It is only where the...