Coy v. The Indianapolis Gas Company
| Decision Date | 29 January 1897 |
| Docket Number | 17,993 |
| Citation | 46 N.E. 17,146 Ind. 655 |
| Parties | Coy v. The Indianapolis Gas Company |
| Court | Indiana Supreme Court |
From the Marion Superior Court.
Reversed.
Samuel Ashby, for appellant.
Miller Winter & Elam, for appellee.
The sole error assigned on this appeal is that the court sustained a demurrer to appellant's complaint and to each of its two paragraphs.
It is alleged in the first paragraph of the complaint that the appellee is a corporation possessed of certain powers immunities and franchises, among which are the right to lay pipes for the supply of natural gas in the streets and alleys of the town of Haughville, and the exclusive right to adjust, supply and handle all such pipes, together with mixers, repairs, connections and appliances necessary in supplying natural gas to consumers, and the exclusive right to manage, furnish, control and measure the supply of natural gas flowing through such pipes and other appliances to its various consumers in said town. That said consumers have no right in any way to interfere with or molest any of said pipes, connections, machinery or other appliances, or in any way to regulate, manage or control the flow of natural gas through any of said pipes, mixers or connections; that by reason of its said exclusive rights and franchises the appellee owed and owes a corresponding duty to appellant, with whom it entered into contract relations to supply him with gas for fuel promptly and without reserve; and, by reason of such contract and exclusive rights of appellee to supply such gas, the appellee was in duty bound to supply the same to appellant, and its failure so to do, as hereinafter stated, was and is wrongful and unlawful and in violation of express duty due to appellant and to his family; that by reason of such contract relations a duty was and is created and is imposed by law upon appellee to supply such gas to appellant upon the performance by him of the conditions of said contract on his part to be performed; that at the time of entering upon said contract appellee knew that said gas was a necessity and essential to the life of appellant and his family, and knew that appellant could not obtain gas or fuel elsewhere, but depended entirely upon appellee to supply the same; that at the time of entering into the agreement to furnish gas as aforesaid appellee was the owner of and operating a natural gas plant in said town of Haughville, under the laws of the State, and engaged in the business of supplying natural gas for light and fuel to appellant, to divers other persons, and to the public of said town; that in December, 1892, appellee entered into a written contract with appellant to furnish his residence in said town with gas, at an agreed price, and on the terms and conditions stated in said contract, in sufficient quantity for fuel to heat said residence, appellant paying for said gas in advance and agreeing to notify appellee of any defect in such service and supply of gas; that in December, 1892, appellant's family consisted of himself, his wife and their two children, all living in his said house in said town, one of said children, Lou Ethel Coy, being then of the age of five years; that in violation of said contract, and in violation of its duty to appellant, appellee wholly failed, refused and neglected to supply said gas, and wholly failed, neglected and refused to perform the conditions of said contract on its part to be performed, and wrongfully and unlawfully failed, neglected and refused to discharge its said duty of supplying gas to appellant, and, in violation of said duty imposed by law and by said contract, wrongfully and unlawfully left appellant without fuel with which to heat said dwelling, all of which wrongful acts were done while said contract was in full force and while said duty rested upon appellee towards appellant to supply said natural gas. That appellant, relying upon appellee to comply with its said contract, and believing that appellee would discharge its said duty to appellant, failed to procure wood, coal, gas or other fuel; that during the severe weather in the latter part of December, while said contract was in full force, while said duty existed, and while appellant relied upon appellee to perform said contract and discharge said duty, and while appellant was unable to procure any other fuel to heat his dwelling, his said child, Lou Ethel Coy, being sick in said house, and after appellant had given to appellee due notice of its failure to supply gas to appellant, and of his inability to procure fuel elsewhere, and of the sickness of said child, and demanded such supply of gas from appellee, and after appellant had made every effort to procure fuel elsewhere, and while he was unable to obtain the same after diligent search, the dwelling of appellant became so cold and thoroughly chilled by the want of heat, that said Lou Ethel Coy, without her fault or that of appellant, and by reason of the failure of appellee to furnish gas, and by reason of the wrongful and unlawful refusal and failure of appellee to discharge its said duty to appellant, and by reason of the chilled condition of said house and the low temperature therein, took a relapse in her sickness for want of heat and warmth, and became very ill and lingered in severe sickness in consequence thereof until the 31st day of December, 1892, when she died; the extreme sickness and death of said child being the immediate, direct and proximate result of the failure of appellee to supply said gas and of its refusal to discharge its said duty to appellant.
The second paragraph of the complaint is similar to the first, except that it counts on damages for the death, in like manner, of the other child of appellant.
Counsel differ as to whether the action disclosed in the complaint is one on contract or in tort. It is true, as a general rule, that no one is compelled to do business with any but those with whom he chooses. There are, however, well recognized exceptions to this rule. It has always been held that common carriers cannot, on tender of the usual compensation, refuse to accept for transportation proper articles offered at proper times and places. So, also, innkeepers having accommodations must receive as guests all who, in a peaceable and proper manner, make application therefor. In like manner it has been held that telegraph, telephone, water, gas and other like companies, that have received from public authority franchises which also provide for the accommodation of the general public. owe a duty to serve all persons who make proper application for such service, and who comply with such reasonable rules as may be fixed, and make such rea sonable compensation as may be required. Persons or corporations enjoying such public franchises, and engaged in such public employment, are held, in return, to owe a duty to the public, as well as to all individuals of that public who, in compliance with established customs or rules, make demand for the beneficial use of the privileges and advantages due to the public by reason of the aid so given by public authority. Cent. U. Tel. Co. v. Fehring, ante, 189; Portland Nat. Gas & Oil Co. v. State, ex rel., 135 Ind. 54, 34 N.E. 818; City of Rushville v. Rushville Nat. Gas Co., 132 Ind. 575, 28 N.E. 853, and note to this case in 15 L. R. A. 321. And that the public grant to appellee imposed also a public duty in return. See further the recent case of Westfield Gas and Milling Co. v. Mendenhall, 142 Ind. 538, 41 N.E. 1033, and cases there cited.
In Portland Nat. Gas Co. v. State, supra, it was said: "That a natural gas company, occupying the streets of a town or city with its mains, owes it as a duty to furnish those who own or occupy the houses abutting on such street, where such owners or occupiers make the necessary arrangements to receive it and comply with the reasonable regulations of such company, such gas as they may require, and that, where it refuses or neglects to perform such duty, it may be compelled to do so by writ of mandamus."
So it was said in Williams v. Mutual Gas Co., 52 Mich. 499, 50 Am. Rep. 266, 18 N.W. 236, that, "When the defendant company made the connection of its service pipes and mains with the pipes and fixtures of the Biddle House, it imposed upon itself the duty to supply the house and premises, upon reasonable terms and conditions, with such amount of gas as the owner or proprietor might require for its use, and pay for, so long as the company should exist and do business."
And the Supreme Court of the United States, in New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 29 L.Ed. 516, 6 S.Ct. 252, said: "It is to be presumed that the legislature of Louisiana, when granting the exclusive privileges in question, deemed it unwise to burden the public with the cost of erecting and maintaining gas works sufficient to meet the necessities of the municipal government and the people of New Orleans, and that the public would be best protected, as well as best served, through a single corporation invested with the power, and charged with the duty, of supplying gas of the requisite quality, and in such quantity as the public needs demanded."
The same high court, in Gibbs v. Consolidated Gas Co., 130 U.S. 396, 32 L.Ed. 979, 9 S.Ct. 553, said: "These gas companies entered the streets of Baltimore, under their charters, in the exercise of the equivalent of the power of eminent domain, and are to be held as having assumed an obligation to fulfill the public purposes to subserve which they were incorporated."
In 2 Beach. Priv. Corp., section 835 (d), the author says ...
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