Metzger v. Schultz

• Decision Date: 22 April 1896
• Docket Number: 1,776
• Parties: METZGER v. SCHULTZ, BY NEXT FRIEND
• Court: Indiana Appellate Court

43 N.E. 886

16 Ind.App. 454

METZGER v. SCHULTZ, BY NEXT FRIEND

No. 1,776

Court of Appeals of Indiana

April 22, 1896

Rehearing denied December 16, 1896, Reported at: 16 Ind.App 454 at 463.

From the Marion Superior Court.

Reversed.

Lucius B. Swift, for appellant.

Vinson Carter and William T. Brown, for appellee.

OPINION

LOTZ, J.

This action was instituted by the appellee against the appellant and one Henry C. Pomeroy. The defendants filed separate demurrers to the amended complaint and Pomeroy's demurrer was sustained and a judgment was rendered in his favor for costs. The appellant answered by general denial, and the trial resulted in a verdict of $ 1,000.00 for the appellee for which judgment was rendered in his favor, after appellant's motion for judgment upon answers to interrogatories and her motion for a new trial had been overruled. The appellant appeals to this court and asks a reversal upon several errors assigned.

The amended complaint alleges that October 1, 1887, Alexander Metzger, the husband of the appellant, owned certain real estate in Indianapolis, upon the southwest corner of Pennsylvania and North streets, upon which was a two-story brick building with a cellar, leased and occupied by the defendant, Pomeroy, for a drug store. That immediately west of and adjoining said drug store was another brick building, with a cellar. That the two cellars were separated by a brick wall, with no communication between them. That on said day Pomeroy did some gas fitting in the drug store cellar, and did it negligently. That the pipes were old, rusty, defective, and improperly constructed. That no elbows were used, but that when a turn was to be made the pipes were bent, causing a constant, severe, and unusual strain, and the pipes were loosely fastened to joists.

That Alexander Metzger died August 4, 1892, devising said real estate to his wife, the appellant. That afterwards Pomeroy surrendered the drug store premises, including said pipes to the appellant. That the appellant with full knowledge of the defective condition of the pipes maintained the same in such condition, and on September 1, 1892, leased said drug store premises, including said fixtures, to Thomas C. Potter, and until September 21, 1893, with full knowledge of said defective condition, received rent for said premises.

That on September 21, 1893, said second building immediately west of said drug store was leased to Jones and Berry as tenants of the appellant, for a grocery, and the appellee was employed by said firm.

That by reason of said defective gas fitting, the pipes in the drug store cellar cracked and broke so that the gas escaped and diffused itself through said cellars and buildings, and especially in said drug store cellar.

That on said day, September 21, 1893, said gas, escaping as aforesaid, exploded in said drug store cellar while the appellee was engaged in his usual duties in said grocery and cellar adjoining said drug store, and hurled the appellee down, and caused large quantities of brick and mortar from said cellar wall to fall upon him, injuring him externally and internally, and burning him.

The undisputed evidence in this case shows that in 1887 one Alexander Metzger was the owner of the real estate described in the complaint. The ground floor of the building was divided into two rooms and the cellar into three rooms. Alexander Metzger demised the east room and cellar to one Henry C. Pomeroy for a drug store. While Pomeroy was in possession he voluntarily and of his own accord caused a gas pipe to be connected on the north side of the cellar with the Consumers' Gas Trust Company's main, for the purpose of lighting the drug store by natural gas. He employed a plumber and gasfitter for this purpose. A brass stop cock was put in the pipe near the wall where the connection was made. This pipe was necessarily many feet in length in order to reach from the connection to the point where it rose to conduct the gas into the drug store, and it was deflected or sprung from a straight line. Alexander Metzger died August 4, 1892, and devised the real estate to his wife, the appellant. Afterwards Pomeroy sold his drug business to one Thomas C. Potter and gave him the immediate possession of that part of the premises leased by him. Potter continued in possession and paid rent to appellant's agents for several months. On the 18th day of August, 1892, the appellant demised the drug store premises to Potter for the period of three years. On September 21, 1893, the west end of the building including the cellar thereunder, was leased to Jones and Berry for the purposes of a grocery store, and they were engaged in conducting that business therein. The appellee was in their employ as a clerk, and descended into the cellar under the grocery store, when an explosion occurred and he was badly burned. There were two explosions in rapid succession. One of the explosions partly demolished one of the partition walls of the cellar and large quantities of brick and motar were hurled in the direction of the gas pipe. After the explosion the gas pipe was found broken off at the brass stop cock. The appellant at no time before the explosion had any actual knowledge of the condition of the gas pipe.

Appellant's contention is, that as she came into the possession of the property, with all the existing conditions, and that as she had no actual knowledge of any defect in the pipe, she is not chargeable with negligence in keeping the premises in a reasonably safe condition, and, therefore, not responsible for the injuries to the appellee.

This presents one of the principal questions involved in this controversy.

The general rule is that every person must so use his own property as not to injure others. Anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights is an actionable nuisance. Cooley Torts section 565. A nuisance may result from the negligent acts of commission or omission. It is also the general rule that the occupier of lands is prima facie responsible for any nuisance maintained thereon and not the owner. But to this rule there are several well defined exceptions. The owner is responsible if he creates a nuisance and maintains it. He is responsible if he creates a nuisance and then demises the premises with the nuisance thereon, although he is out of possession. He is liable if a nuisance was erected on the land by a prior owner or by a stranger, and he knowingly maintains or continues it. He is liable if he demised the premises and covenanted to keep them in repair, and omits to repair, thereby creating a nuisance. He is liable if he demise the premises to be used as a nuisance, or to be used in any way so that a nuisance will necessarily be created. But a grantee or devisee of lands upon which there is a nuisance at the time the title passes is not responsible for the nuisance until he has notice of its existence; and in a certain class of cases, until he has been requested to abate the same. Penruddock's Case, 3 Coke, Part 5, p. 101, is one of the earliest cases bearing on these questions. It was there decided that an action will lie against one who erects a nuisance without any request to abate it; but not against the feoffee, unless he does not remove the nuisance after request. This case has...