Hamden Lodge v. Gas Co.

• Decision Date: 07 February 1934
• Docket Number: 24385
• Citation: 189 N.E. 246,127 Ohio St. 469
• Parties: Hamden Lodge No. 517, Independent Order Of Odd Fellows, Et Al. v. The Ohio Fuel Gas Co.
• Court: Ohio Supreme Court

189 N.E. 246

127 Ohio St. 469

Hamden Lodge No. 517, Independent Order Of Odd Fellows, Et Al. v. The Ohio Fuel Gas Co.

No. 24385

Supreme Court of Ohio

February 7, 1934

Evidence - Term scintilla confusing and misleading - Scintilla rule no longer obtains - Court to direct verdict, when - Question of fact for jury, when - Negligence - Damages to building by natural gas explosion - Insufficient evidence of duty of gas company to inspect or repair pipe.

1. The term "scintilla," when used to designate a rule of trial procedure, is confusing and misleading and should be abandoned.

2. The so-called "scintilla rule," requiring a trial judge to submit a case to the jury if there is any evidence however slight, tending to support each material issue, no longer obtains in Ohio. (Second and third paragraphs of the syllabus in Ellis & Morton v. Ohio Life Insurance & Trust Co., 4 Ohio St. 628, and the case of Clark v. McFarland, 99 Ohio St. 100, overruled.)

3. Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and that conclusion is adverse to such party, the judge should direct a verdict against him.

4. Where from the evidence, reasonable minds may reach different conclusion upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.

5. It was not error for the Court of Appeals to reverse a judgment rendered upon a verdict for the plaintiff and to enter final judgment for the defendant, where, in an action for damages for the destruction of a building caused by the explosion of natural gas which escaped from a defective service pipe connecting defendant's street main with the fixtures in the building, the only evidence from which a duty on the part of the defendant to inspect or repair the pipe could be inferred was that the pipe was used only to convey gas from defendant's main into the building and that the defendant owned and controlled the meters, attached them to the service pipe and read them.

On October 26, 1931, a building owned jointly by Hamden Lodge No. 517, Independent Order of Odd Fellows and Carnation Lodge No. 554, Ladies of Rebekah, situated in the village of Hamden, was destroyed by an explosion. Prior to that time the upper floor of the building was used by the two lodges as a meeting place. The lower floor was leased to a tenant, who used the front part of it as a grocery and the rear as a feed store. On that day, the tenant and his son who was employed with him in the business, took a lighted candle to the back part of the feed store to nail a piece of tin over a rat hole, when a streak of flame was seen to run along the floor and both men were blown into the air. The building was wrecked by the explosion, and the present suit is for the recovery of damages occasioned by its injury.

It is practically conceded that the explosion was caused by the ignition of natural gas which had escaped from the service pipe connecting the defendant's street main to the stoves and fixtures. A part of this pipe near the place where the explosion occurred was shown at the trial to have been rusted and corroded so as to permit the escape of gas, and no other plausible explanation was offered.

The plaintiffs based their claim upon the failure of the defendant company to inspect the pipe and to discover and repair the leak. The defendant denied any duty to inspect or repair, asserting that the pipe was the property of the plaintiffs, under their exclusive control, and that no notice of any defect had been given it. No proof of notice was produced, and the case, upon trial resolved itself largely into a question as to who owned the pipe.

After a motion to direct a verdict for the defendant had been overruled at the conclusion of the plaintiff's evidence and again at the conclusion of all the evi- dence, the case was submitted to the jury under instructions to find for the defendant unless the service pipe was found to be under said defendant's sole and exclusive charge and control. A verdict was rendered for the plaintiffs, and judgment there on was taken to the Court of Appeals on error.

In its opinion the Court of Appeals said:

"The only serious question in the case is whether the pipe in question was the property of or under the control of the defendant. * * * A majority of the court, Middleton, J., and Mauck, J., * * * finds that the trial court should have directed a verdict for the defendant on the ground that there was not sufficient evidence adduced by the plaintiff on this question to carry the case to the jury. There was some evidence or rather some facts from which a slight inference of the necessary ownership or control might be drawn and if the so-called scintilla rule prevailed now in Ohio the trial court was right in submitting the question to the jury. That rule, however, does not now obtain in this state. It has been definitely abandoned and Ohio has been brought into harmony with the vast majority of states in requiring some substantial evidence to make a case for the jury.

"A majority of the court holds that under this rule the defendant was entitled to a directed verdict and orders that the judgment be reversed, and proceeding to render the judgment that the trial court should have rendered now enters judgment for the defendant."

Because that portion of the opinion concerning the scintilla rule was deemed to be in conflict with the decisions of several other Courts of Appeals, and particularly with the decision of the Court of Appeals of Franklin County in the case of Coleman v Columbus Gas & Fuel Co., 40 Ohio App. 534, 179 N. E., 749, the case was certified into this court.

Messrs. Jones & Henderson and Mr. Charles O. Chapman, for plaintiffs in error.

Mr. Otto E. Vollenweider and Messrs. Eagleson & Laylin, for defendant in error.

BEVIS J.

Two of the judges of the Court of Appeals were of the opinion that there was sufficient evidence of the defendant's ownership or control of the service pipe to carry the case to the jury if "the so-called scintilla rule" still prevails in Ohio, but not sufficient to carry it to the jury if this rule does not prevail. The third member of the court held that there was more than a "mere scintilla" of evidence upon this point, and he dissented from the entering of final judgment for the defendant.

He stated that he based his dissent upon "evidence that the gas company installed the service line, made extensions of the same and installed its meters for the purpose of delivering gas to its consumers for profits, that at least one of these extensions was made and a meter installed for the use of a tenant of the plaintiff below without the consent of the plaintiff."

The record discloses that the service pipe in question came from the curb cock, through the front foundation wall of the building, and ran along under the floor, partly on the surface of the ground, and partly beneath the surface, to the rear wall, where risers went up to the meters. There was no cellar under the building, and access to the service pipe could be had only through a small trapdoor inside the store.

The record further shows that the lodge building was constructed in the year 1907. Gas had only shortly theretofore been introduced into the village of Hamden, and to encourage and facilitate its installation and use the gas company had, in some cases, attended to putting in the service lines as well as the street mains. It was asserted by the plaintiff, and an attempt was made to prove at the trial, that the gas company, at its own expense, installed the service pipe in the building. We can find no evidence in the record, however, to support this claim. On the contrary, there is positive testimony that the piping in the building was done by a plumbing company from Wellston, and the records of the lodge show a lump payment for the work. Nor can we find evidence in the record that the defendant made either extensions or repairs.

It did own and install the meters. For a time there were two meters attached to the service pipe; one for the lodges above and one for the tenants below; but, when the explosion occurred, and for a considerable time previous thereto, only one meter was used, the lodges paying the gas bills for the tenants. There is no positive evidence that the meters were either installed or removed without the consent of the plaintiffs, and, in our opinion, the reasonable inference from all of the facts is to the contrary. Section 9329, General Code.

There was testimony, furthermore, that a few years before the explosion some part, or all, of the service pipe was renewed at the direction of a member of the Odd Fellows' Lodge, who paid for the work with a check. Whether that person was still a member of the building committee, and whether the check was a "lodge" check, the evidence fails definitely to establish. In this state of the record, the individual view of the dissenting judge seems founded on misapprehension.

The record containing no evidence that the gas company installed, extended, or repaired the service line, there remain substantially only the facts that the line was used exclusively for the conveyance of gas from the defendant's mains into the plaintiffs' premises, and that the defendant owned, connected, and, at proper intervals, read the meters. Was this sufficient to carry the case to the jury?

In the absence of evidence to the contrary, the pre- sumption is that the service lines located upon the land of the abutting owner...