Northern Indiana Public Service Co. v. Otis, No. 468A78

• Docket Nº: No. 2
• Citation: 250 N.E.2d 378, 145 Ind.App. 159, 18 Ind.Dec. 277
• Case Date: August 27, 1969
• Court: Court of Appeals of Indiana

Page 378

250 N.E.2d 378 145 Ind.App. 159 NORTHERN INDIANA PUBLIC SERVICE COMPANY and John Dehner,
Inc., Appellants,
v.
Regina OTIS, Appellee. No. 468A78. Appellate Court of Indiana, Division No. 2. Aug. 27, 1969.
Rehearing Denied Sept. 23, 1969.

[145 Ind.App. 162]

Page 382

J. A. Bruggeman, William F. McNagny, Robert L. Thompson, Jr., Fort Wayne, for Northern Indiana Public Service Co.

John H. Krueckberg, Gary A. Buelow, Parry, Krueckeberg & Lee, Fort Wayne, George Freuchtenicht, Rothberg, Gallmeyer, Freuchtenicht & Logan, Fort Wayne, Arch N. Bobbitt, Ruckelshaus, Bobbitt & O'Connor, Indianapolis, forJohn Dehner, Inc.

Gilmore S. Haynie, David B. Keller, Fort Wayne, Marvin S. Crell, Fort Wayne, for appellee; Livingston, Dildine, Haynie & Yoder, Fort Wayne, of counsel.

SHARP, Judge.

This case grew out of an explosion of a gas main at the corner of Broadway and Kinsmoor, also known as Old Mill Road, in the downtown area af Fort Wayne, Indiana, on February 3, 1966, near the residence of Plaintiff-Appellee, Regina Otis. Appellee fild her complaint on August 25, 1966 for personal injury damages as a result of said explosion, which as amended, in substance, alleges:

1. The plaintiff was a resident of the City of Fort Wayne; Appellant Northern Indiana Public Service Company, herein after called NIPSCO, was an Indiana corporation engaged in the business of transmitting, distributing and selling gas, and the Appellant John Dehner, Inc., hereinafter called Dehner, was an Indiana corporation engaged in the general contracting and construction business in and about the City of Fort Wayne.

[145 Ind.App. 163] 2. The Appellants entered into an agreement whereby NIPSCO employed Dehner to construct and install gas mains, which agreement provided that Dehner should perform such work under the supervision of NIPSCO's Engineers using materials furnished by NIPSCO and pursuant to plans and specifications furnished by NIPSCO.

3. That pursuant to the agreement Dehner constructed and installed a twelve inch gas main running under Broadway Avenue and past the residence of the plaintiff.

4. That upon completion of the gas main NIPSCO used it for the transmission and distribution of gas until February 3, 1966.

5. That Broadway Avenue is a principal motor traffic artery, carrying State Roads #1 and #3 and is heavily travelled by automobiles and trucks.

6. That plaintiff's home was immediately south of the intersection of Broadway with Kinsmoor Avenue and that at said

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intersection Broadway curves in a generally southwesterly direction as viewed from the north.

7. That at the intersection of Broadway with Kinsmoor the gas main was placed in a trench that was curved in such a manner as to correspond with the curve of Broadway Avenue, and that two sections of pipes were joined by a weld beneath the intersection.

8. On or about February 3, 1966, that weld failed, and that as a result of such failure high pressure gas escaped in large quantities and exploded, and as a result the plaintiff suffered injuries.

9. That the failure, explosion, and injuries were caused by the negligence of the defendants.

10. That NIPSCO was negligent as follows:

a. In requiring that the main be installed in such a manner, it was curved at such an angle and at such a depth that NIPSCO should have known would produce stress upon the weld capable to cause failure of the weld;

b. That NIPSCO failed to furnish Dehner with an elbow and/or permitted Dehner to join said sections of pipe without using an elbow when it should have known that the use of an elbow was reasonably necessary;

c. That the bituminous wrapping material furnished by NIPSCO to Dehner to wrap the weld was not of sufficient quantity or quality to prevent corrosion and weakening of the weld;

[145 Ind.App. 164] d. That NIPSCO allowed the weld to be wrapped in a manner ineffective to prevent corrosion of the weld;

e. That NIPSCO failed to properly test and/or inspect the weld during construction;

f. That while the gas main was in use, NIPSCO failed to properly test and/or inspect the weld;

g. That NIPSCO failed to equip the gas main with the devices which would have cut off the flow of the gas in the event of a leak which devices were resonably available in the industry and reasonably necessary to prevent the creation of hazardous conditions;

h. That, immediately prior to the explosion NIPSCO failed to cut off the flow of gas into the main even though it knew or should have known that there was a leak in the main and that high pressure gas was escaping.

11. That Dehner was negligent as alleged as to NIPSCO in sub-paragraphs a, b, c, d, and e above and also, in failing to properly test or inspect the weld.

Appellant NIPSCO filed answer in admission and denial under Rule 1--3 of the Rules of the Supreme Court of Indiana, Appellant Dehner filed an amended answer in five legal paragraphs.

The first pleading paragraph was in admission and denial under Rule 1--3 of this Court, and contained the specific allegation that the employees of the Appellant Dehner were furnish to the Appellant NIPSCO and the Appellant Dehner did not undertake nor was it given the responsibility for determining the adequacy of the procedures specified by the Appellant NIPSCO, all of which was reserved to itself by NIPSCO and its construction and engineering department.

In its second paragraph of answer, the Appellant Dehner, averred specifically that any damage suffered by the plaintiff was due solely to the negligence of NIPSCO in failing to properly design, plan, test and inspect the line.

In this third paragraph of answer, Appellant Dehner specifically alleged that the contract, referred to in the Appellee's complaint, between the Appellants provided only for the [145 Ind.App. 165] furnishing of labor and equipment to NIPSCO to be used by NIPSCO for certain work to be done under the direction, supervision and inspection and control of

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NIPSCO and in accordance with their instructions. It was further stated that the workmen furnished to NIPSCO by Dehner performed only such work as they were instructed to perform by NIPSCO, and that Dehner was furnished with no plans and did not undertake to test or determine the adequancy of the procedure specified to its workmen by NIPSCO, and that the manner, method and means of performance of the work was under the sole direction, control, supervision and inspection of NIPSCO.

In its fourth paragraph of answer the Appellant Dehner pointed out that when the line was completed and installed it was tested by NIPSCO, approved by NIPSCO and accepted by NIPSCO and has ever since been in their exclusive custody, supervision and control, and that Dehner has had no control, supervision or interest therein, knowledge thereof, access thereto or responsibility therefor since that time. Dehner further averred that when the line was tested, approved and accepted by NIPSCO, NIPSCO assumed fully all control, supervision, interest, knowledge, access and responsibility for the gas main and was alone in privity with the plaintiff.

In its fifth paragraph of answer Appellant Dehner specifically alleged that any condition permitting the escape of gas from the main was the result of matters arising after the completion of the line which were not in the control of Dehner, which arose without its fault, and which include but are not limited to any one or more of the following causes:

a. Failure on the part of NIPSCO to periodically inspect its line for defects which might have arisen from natural causes, from the increased load of traffic on Broadway or from improper utilization of the line by NIPSCO.

b. Improper use of the line by NIPSCO in using it to transmit gas at a pressure greatly in excess of that contemplated [145 Ind.App. 166] by the specifications and testing procedure originally employed by Dehner.

c. The activity of natural corrosive elements and forces and the increased stress to which said line was subject as a result of the increased traffic load on Broadway, all of which forces not being within the contemplations of the plans and specifications of NIPSCO.

This case was tried by jury which resulted in a verdict for Appellee against both NIPSCO and Dehner in the sum of $235,000.00.

On December 14, 1967, NIPSCO filed its Motion for New Trial.

On December 19, 1967, Dehner filed its Motion for New Trial.

Both Motions for New Trial were overruled, which is the sole assignment of error here.

We should emphasize that NIPSCO's counsel in oral argument admitted NIPSCO's liability to Appellee for this explosion. In a reply brief in this court NIPSCO stated:

'In view of the extensive briefs already before this Honorable Court, we will spare it the burden of another such brief.

'Appellant NIPSCO concedes that Appellee is correct in her contentions that Appellant Dehner has failed to establish any harmful error in the record and that its brief is devoted principally to complaining about rulings which Dehner invited. The other errors urged by Appellant Dehner are remarkable only for their quantity and not for their quality.

'Dehner's principal contention is that the loan agreement is, in some mysterious way, improper apparently because it changed Appellant NIPSCO from an ally to an advisary. We know of no rule of law or moral principal which requires two defendants to be allies--certainly not in a case like this which shows on the record that Dehner defrauded NIPSCO by not constructing the gas

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main in a good and workmanlike manner and then tried to unload full responsibility on NIPSCO by repudiating the written agreement under which it performed the work and by adamently refusing[145 Ind.App. 167] to accept any responsibility to the public for injury and damage caused by its negligence. On such a record, no court of justice should require NIPSCO to be Dehner's ally or to assist in avoiding its responsibilities to the innocent public including Mrs. Otis.

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