Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo, 23445.

CourtUnited States State Supreme Court of Ohio
Citation184 N.E. 512,126 Ohio St. 140
Docket NumberNo. 23445.,23445.
Decision Date01 February 1933

126 Ohio St. 140
184 N.E. 512


No. 23445.

Supreme Court of Ohio.

Feb. 1, 1933.

Error to Court of Appeals, Lucas County.

Action by the First Congregational Church of Toledo and others against the Northwestern Ohio Natural Gas Company. Judgment for plaintiffs was affirmed by the Court of Appeals and defendant brings error.-[By Editorial Staff.]


This is a proceeding in error, seeking to reverse the Court of Appeals of Lucas county. The case was commenced in the common pleas court of that county. In the petition and amended petition filed in that court is appears that the First Congregational Church of Toledo, Ohio, joined with twenty-six insurance companies to recover damages claimed to have been sustained by reason of an explosion of natural gas, and the fire resulting therefrom, in the smaller of two church buildings owned and occupied by the First Congregational Church and located on the west side of Collingwood avenue, between Virginia street and Acklin avenue, in the city of Toledo, Ohio, on February 5, 1927. There were two church buildings on the church property, which were connected by a closed passageway. About 7 o'clock, a. m., on said date, there was an explosion followed by a fire in the smaller of the two church buildings. It appears that the smaller building was practically destroyed by the explosion and fire, and some damage was done to the larger building by the force of the explosion.

The amended petition states that the twenty-six insurance companies carried fire insurance on the property of the church, in various amounts set forth in the petition, and that these companies contributed to the total payment of $124,948.71 made by them collectively to the church on the loss occasioned by the explosion and fire.

The substance of the cause of action set forth in the petition is that the gas company ‘negligently failed to keep and maintain said service pipes and meters,’ used to furnish natural gas to the church, ‘in proper repair and in serviceable condition and permitted said service pipes and meters to leak and discharge large quantities of gas into the basement of the church building * * * when it knew, or in the exercise of reasonable care should have known, that gas was leaking into the basement of said church building.’ It is averred that the gas so accumulated in the basement of the church building was ignited and exploded by some unkown cause. The testimony tended to indicate, however, that a janitress on the date in question went into the meter room and was using a candle for the purpose of illumination. Further facts will be given in the opinion.

The answer filed by the gas company admitted certain allegations of the petition in respect to the corporate organizations and business of the church and gas company, and concluded with a general denial of all other allegations in the petition.

In the trial of the case, at the conclusion of the testimony offered on behalf of the plaintiffs, the gas company moved for a directed verdict in its favor. When this motion was overruled by the trial court, the gas company elected not to offer any testimony in support of the allegations of its answer, and the case was submitted to a jury, which returned a verdict against the gas company in the amount of $205,540.80, upon which verdict judgment was entered.

Error was prosecuted to the Court of Appeals, and this judgment was affirmed, and the case was admitted to this court upon allowance of the motion to certify the record.

Syllabus by the Court.

[Ohio St. 140]1. Where an insurer has paid part of the loss sustained by an insured for injury and damage to the latter's property due to the negligence of a third party, the fact that the insurer and insured are joined as parties plaintiff in an action to recover for such loss, and judgment upon the verdict rendered is entered jointly in favor of such joint plaintiffs, such fact in not prejudicial to the wrongdoer; the object of such action being in a single suit to recover the value of the property from the party ultimately liable and to apportion the proceeds of the judgment recovered, if any, among the injured parties, according to their interest in the amount recovered.

2. Where the instructions given on the measure of damages fairly and reasonably present for the consideration of the jury the issues joined by the pleadings and presented by the evidence and the law applicable thereto, and are correct so far as given, if a party desires the jury to be further informed thereon he should request the court so to charge; and, unless such instructions so requested are proper and are refused, no prejudicial error will arise, provided the jury is not misled by the charge as given.

3. In an action for damages for the destruction of a building by explosion and fire, claimed to have been negligently caused by escaping gas, in arriving at the fair and reasonable value of the property destroyed, where an expert witness has expressed his opinion touching such reasonable value before and after the explosion and fire, the fact that such expert has made no deduction for obsolescence, being of opinion that there was none, such fact does not thereby render his testimony incompetent, but the question is one of weight to be given such testimony, which is for the determination of the jury.

4. By reason of the highly dangerous character of gas and its tendency to escape, a gas company must use a degree of [Ohio St. 141]care, to prevent the escape of gas from its pipes, commensurate with the danger, and, if it fails to exercise this degree of care and injury results therefrom, the company is liable, provided the person suffering the injury either in person or in property is free from contributory negligence; and whether, under all the circumstances of a case, a defendant gas company has used such degree of care is a question to be submitted to the jury, under proper instructions, if there be evidence in the record tending to show every essential element necessary to create a liability or evidence of facts from which a reasonable inference might be drawn to support such elements necessary to create such liability.

5. In an action for damages against a natural gas company on account of destruction of plaintiff's property by an explosion of gas which is claimed to have percolated into the basement of plaintiff's property after escaping from leaking pipes, and where plaintiff's suit is predicated upon the claim that the gas company had notice that there was gas leaking into the basement of plaintiff's building prior to the explosion, which notice the company denies, such issue as to notice should be submitted to the jury, if the record contain evidence tending to show actual knowledge or knowledge of facts from which notice might reasonably be inferred.

[Ohio St. 143]

[184 N.E. 514]

John B. McMahon and Tyler, Wilson & Rhinefort, all of Toledo (Newton D. Baker, of Cleveland, and Zielonka & Kuertz, of Cincinnati, of counsel), for plaintiff in error.

Mooney, Bibbee & Edmonds, of Columbus, and Williams, Eversman & Morgan, Brady, Yager & Bebout and Doyle & Lewis, all of Toledo, for defendants in error.


This case was argued and submitted at the last term of this court, but, several briefs having been filed amici curiae, the case was set down for rehearing and was reargued at the present term.

The plaintiff in error is the Northwestern Ohio Natural Gas Company, a corporation, which, for a number of years prior to February 5, 1927, was engaged in the business of furnishing natural gas for fuel and illuminating purposes to individuals, firms, and corporations in the city of Toledo, Ohio. Plaintiff in error will be hereinafter referred to as the ‘gas company.’ Among the customers of the gas company on said date was defendant in error, the First Congregational Church of Toledo, Ohio, hereinafter referred to as the ‘church.’ Joined as defendants in error with the church are twenty-six insurance companies[Ohio St. 144]whose interests in the case, with the exception of amount, are identical, and who will be referred to in this opinion collectively as the ‘insurance companies.’

The first question for determination relates to the matter of whether the judgment rendered in favor of the church and the insurance companies was proper.

The insurance companies joined with the church as parties plaintiff in the case, claiming to have carried certain fire insurance policies on the church property, and asserting the payment of $124,948.71 on the loss sustained by the church.

The insurance policies were not introduced in evidence. The only evidence given by a witness of payment consisted in the statement by a Mr. Charles A. Langdon that the insurance companies had paid a large amount to the church. No exact figure was specified. Instead, the following stipulation was made by and between counsel for the church and for the insurance companies:

‘It is stipulated between the plaintiff, First Congregational Church, and the plaintiff, Insurance companies in this case, that on February 5th, 1927, the plaintiff Insurance Companies carried insurance policies on the First Congregational Church buildings, and personal property therein in the amount and coverage as set forth in the petition, and that after the explosion and fire referred to in the amended petition, and before the commencement of this action, said insurance companies made payments to the First Congregational Church in the amount and on account of the damage by fire to the said First Congregational Church buildings, and personal property therein set forth in the amended petition.’

[184 N.E. 515]

The gas company now contends that, since it did not admit the truth of the allegations of the petition in respect to insurance coverage and payments by the [Ohio St. 145]insurance companies, and since it did not join in the foregoing stipulation, it was necessary that...

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