Peru Heating Co. v. Lenhart

• Decision Date: 30 June 1911
• Docket Number: No. 6,967.,6,967.
• Citation: 48 Ind.App. 319,95 N.E. 680
• Parties: PERU HEATING CO. v. LENHART et al.
• Court: Indiana Appellate Court

48 Ind.App. 319

95 N.E. 680

PERU HEATING CO.

v.LENHART et al.

No. 6,967.

Appellate Court of Indiana, Division No. 1.

June 30, 1911.

Appeal from Circuit Court, Miami County; J. N. Tillett, Judge.

Action by William F. Lenhart and another against the Peru Heating Company and Charles H. Brownell. From a judgment for plaintiffs against defendant the Peru Heating Company, it appeals, and from a judgment for defendant Charles H. Brownell, plaintiffs appeal. Affirmed.Antrim & McClintic and Robert J. Loveland, for appellants. Cox & Andrews, Shively & Switzer, and Cole & Cole, for appellees.

HOTTEL, J.

This is an action begun in the Miami circuit court by the appellees Lenhart and Simpson against the appellant and appellee Charles H. Brownell to recover damages for injuries to a stock of undertaking goods, alleged to have been caused by the negligence of said appellant and Brownell.

The amended complaint was in one paragraph, to which a demurrer filed by each defendant was overruled and exception taken. The cause was put at issue by a general denial filed by each defendant, and was tried by a jury, which returned a general verdict in favor of the defendant Brownell and against the Peru Heating Company, assessing damages in favor of Lenhart and Simpson in the sum of $1,094.40, with answers to interrogatories. The appellant heating company moved for judgment on the answers to interrogatories and then for new trial, each of which motions were overruled and exceptions saved. Appellees Lenhart and Simpson also filed their separate motion for judgment in their favor on the answers to interrogatories, as against defendant Brownell, and motion for judgment on the general verdict against the defendant heating company, and then filed a motion for new trial against the defendant Brownell, who also filed a motion for judgment in his favor on the general verdict. The motions of Lenhart and Simpson for judgment on the answers to interrogatories and for new trial, as against Brownell, were by the court overruled, with exceptions in their favor, and the court then sustained the motions of Lenhart and Simpson and of Brownell for judgment on the general verdict, and rendered judgment for appellees Lenhart and Simpson in the sum of $1,094.40 against the appellant heating company, and in favor of the appellee Brownell, from which judgment appellant heating company and appellees Lenhart and Simpson each prayed an appeal.

The errors relied upon in this court by appellant heating company are: (1) “The overruling of its demurrer to the amended complaint. (2) The overruling of its motion for judgment in its favor on the answers to interrogatories. *** (3) The overruling of the motion for a new trial.”

That part of the complaint necessary to a full understanding of the case and the questions presented for decision is substantiallyas follows: The appellee Brownell was the owner of a three-story brick building in Peru, Ind. Plaintiffs, on and prior to February 8, 1905, were partners in the retail furniture and undertaking business in Peru, and occupied ground floor rooms in said three-story brick building which they held “under a lease from said Brownell,” the owner. The defendant heating company owned and operated a central hot water heating plant in the city of Peru, and furnished “heat to consumers in said city by its system of pipes extending from its said central plant to the various business houses and dwellings.” One of the rooms so occupied by the plaintiffs was at the time filled with undertaking goods. Immediately above this room was a suite of office rooms not at any time occupied, leased, used, or controlled by plaintiffs. In 1903, the defendant heating company, under a contract with Brownell, and for him, installed in all of his said building, “except in the rooms so used *** by plaintiffs,” a system of pipes and radiators by which the various rooms, except those of plaintiffs, were heated. The current was brought into the basement by an inflowing pipe, and the return circuit was by an outflowing main, also in basement. The radiators in said office rooms, above the room of plaintiffs, were connected with the pipes and mains in the basement; the manner of the connection being particularly set out. During the fall of 1903, “the defendants caused the hot water to be turned into the building, including said office rooms so located immediately above plaintiffs' said undertaking establishment, and excepting the rooms so occupied by plaintiffs. And thereafter the said heating company furnished to the various tenants of said business block such heat for hire.” “A short time prior to” February 8, 1905, “the defendants” were notified by the new occupants of said office rooms “to turn the heat out of the same.” And at or about the time of such change, “and some time prior to the 8th day of February, 1905, in pursuance of such notice, the defendants undertook to cut off the hot water from said office rooms and remove the heat therefrom.”

“Plaintiffs further aver that in so attempting to shut off the heat from said office rooms and the flow of water through the pipes and radiators therein the defendants carelessly and negligently shut off the entire circulation of water in said rooms through said pipe, and negligently and carelessly neglected to drain the water from said pipes in said rooms, thereby creating a ‘dead end’ in said pipe, at which water collected, stood, and could not circulate or pass out, and the water which so collected and stood in said pipe aforesaid was negligently and carelessly left by said defendants so to remain at the time and season of the year when, as the defendants well knew, the water therein was liable to freeze and burst the said pipes, and without providing other means to prevent the freezing and bursting thereof. That about the 8th day of February, 1905, the water so standing in said pipe froze, and bursted and separated the same at or near the valve where same was so negligently and carelessly cut off, as aforesaid; and by reason of freezing and bursting of said pipe large quantities of hot water were forced therefrom *** and precipitated into the room so used by plaintiffs for their undertaking business, as aforesaid. ***”

[1][2] The defendants are sued as joint tort-feasors, and the law applicable thereto is stated in Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481 at page 492, 25 N. E. 799 at page 801 (10 L. R. A. 696), 23 Am. St. Rep. 688 at page 692, in the following language: “And so if several persons are jointly bound to perform a duty they are jointly and severally liable for omitting to perform, or for performing it negligently. All persons who co-operate in an act directly causing injury are jointly liable for its consequences, if they acted in concert, or united in causing a single injury, even though acting independently of each other.” See, also, Chicago, etc., R. R. Co. v. Marshall, 38 Ind. App. 217, 75 N. E. 973;Baltes et al. v. Bass Foundry & Machine Works, 129 Ind. 185, 188, 28 N. E. 319;Ashcraft v. Knoblock, 146 Ind. 169, 45 N. E. 69;Doherty v. Holliday, 137 Ind. 282, 32 N. E. 315, 36 N. E. 907; Hilliard on Remedies for Torts, 178; Deering on Negligence, § 395; Wharton on Negligence, § 788.

Appellant bases its objection to the complaint practically upon the same grounds which it urges in support of its motion for judgment on the answers to interrogatories, and against the sufficiency of the evidence, and we will therefore, in this connection, consider these objections more in detail than we otherwise would. The objection to the complaint is that it “does not disclose such a relation between the appellees Lenhart and Simpson and appellant that the latter will be answerable in damages to the former for the injuries complained of.” As reasons for this contention, appellant urges that the complaint shows that appellee Brownell owned the building in which the goods of Lenhart and Simpson were injured, and the water pipes and fixtures therein; that appellant's service pipes extended to said building and there stopped; that Brownell had exclusive ownership and control of the water pipes in the building; that the service of appellant never extended to the rooms occupied by appellees Lenhart and Simpson; that no contractual relation existed between them and appellant; that the appellant's “relations to the tenants of Brownell never went beyond those of the merest licensee, extending only to such portions of the building and pipes therein as were at the time of the injury complained of being used by the renters of such building for heating purposes; that appellant's license and right to use or have anything to do with said pipes in the rooms where the bursting complained of occurred terminated some time prior to the 8th day of February, 1905, when such bursting occurred, viz., such right terminated when “the defendants shut off the entire circulation of water in said rooms through said pipe,” and that, therefore, appellant, at the time of the injury to appellees' property, owed them no duty in connection therewith for the violation of which it could be held accountable for damages for injury resulting therefrom.

[3] Appellant's contention as to the facts disclosed by the complaint is practically correct, as far as it undertakes to state such facts; but it is in error in the conclusion deduced therefrom that appellant, at the time of the injury, owed appellee no duty for the violation of which it could be held accountable in damages. It is not necessary that a contractual relation exist between the wrongdoer and the party injured by the wrong, in order that such party may have redress for the injury and damage resulting from the wrong done. In other words, an action for tort is not necessarily dependent upon the existence of a contractual relation between the person guilty of the tort and the person suffering injury therefrom. Stock v. City of Boston, 149 Mass. 410, 21 N. E....