Greenfield Gas Company v. Trees

• Decision Date: 28 June 1905
• Docket Number: 20,620
• Citation: 75 N.E. 2,165 Ind. 209
• Parties: Greenfield Gas Company v. Trees
• Court: Indiana Supreme Court

75 N.E. 2

165 Ind. 209

Greenfield Gas Company v. Trees

No. 20,620

Supreme Court of Indiana

June 28, 1905

From Hancock Circuit Court; Edward W. Felt, Judge.

Action by James R. Trees against the Greenfield Gas Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.

Reversed.

Marsh & Cook and Downing & Hough, for appellant.

OPINION

Monks, C. J.

Appellee brought this action against appellant to recover damages for the alleged turning off by appellant of natural gas from the pipes which supplied appellee's residence with said natural gas. A trial of said cause resulted in a verdict and, over a motion for a new trial, a judgment in favor of appellee.

Appellant's demurrer to the complaint for want of facts was overruled and this ruling of the court is assigned for error.

It appears from the complaint that appellant was and is a natural gas company occupying the streets of the city of Greenfield, Indiana, with its gas-mains, and that appellee owned a dwelling-house abutting on a street so occupied by appellant, and had his house connected with appellant's gasmain in said street for the purpose of using said natural gas for fuel and lights; that on February 12, 1902, appellant turned off the gas from the pipes which supplied appellee's residence therewith; that, after the gas was so turned off, appellee brought an action against appellant in the name of the State, on relation of appellee, to compel appellant to furnish him gas at his said residence; that appellant appeared to said action and filed an answer, and that final judgment was rendered in said action against appellant that it furnish gas to appellee.

It is settled in this State "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 streets, when such owners or occupants make the necessary arrangements to receive it and comply with the reasonable regulations of such company, such gas as they may require, and that, when it refuses or neglects to perform such duty, it may be compelled to do so by writ of mandamus." Portland, etc., Oil Co. v. State, ex rel. (1893), 135 Ind. 54, 21 L. R. A. 639, 34 N.E. 818, and authorities cited; Coy v. Indianapolis Gas Co. (1897), 146 Ind. 655, 36 L. R. A. 535, 46 N.E. 17, and authorities cited; State, ex rel., v. Portland Nat. Gas Co. (1899), 153 Ind. 483, 488, 53 L. R. A. 413, 74 Am. St. 314, 53 N.E. 1089, and cases cited.

There is no direct averment in the complaint that appellee had complied with, or offered to comply with, the reasonable regulations of appellant before or at the time he alleges appellant shut off the gas from his residence. It is true that it is alleged "that, after being tendered its charges therefor by this plaintiff, defendant wrongfully and unlawfully turned off the gas from the residence of this plaintiff," etc. It avails nothing, as against a demurrer, to aver conclusions or plead facts, as the tender of charges, by way of recital, as in this case. Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 98, 99, 69 N.E. 669, and authorities cited; Malott v. Sample (1905), 164 Ind. 645, 74 N.E. 245.

There is an attempt in said complaint to show that the question whether said turning off of the gas by appellant was wrongful was adjudicated in the mandamus case in favor of appellee. If a former adjudication of said question in favor of appellee is shown by the complaint, the same was sufficient...