Roberts v. Indiana Gas & Water Co.

• Decision Date: 28 July 1966
• Docket Number: No. 20420,20420
• Citation: 218 N.E.2d 556,140 Ind.App. 409
• Parties: John D. ROBERTS, Appellant, v. INDIANA GAS AND WATER CO., Inc., Appellee.
• Court: Indiana Appellate Court

Page 556

218 N.E.2d 556

140 Ind.App. 409

John D. ROBERTS, Appellant, v. INDIANA GAS AND WATER CO., Inc., Appellee.

No. 20420.

Appellate Court of Indiana, In Banc.

July 28, 1966.

[140 INDAPP 410]

James D. Lopp and John D. Clouse, Evansville, for appellant.

Hugh E. Reynolds, Locke, Reynolds, Boyd & Weisell, Indianapolis, and J. Lloyd Fitzpatrick, Indianapolis, Hastings & Allen, Washington, of counsel, for appellee.

HUNTER, Judge.

This is an appeal from the lower court's action in sustaining the demurrer of the defendant-appellee. The plaintiff-appellant refused to plead over. The appeal was brought on the alleged error of the trial court's ruling that the second paragraph of the fourth amended complaint (hereinafter referred to as complaint) failed to state facts sufficient to constitute a cause of action. The appellee also filed a motion to make the said second paragraph of complaint more specific which said motion was overruled by the lower court. Consequently, on this appeal in construing the sufficiency of the complaint, we are limited to a consideration of the facts well pleaded without any factual conclusions whatsoever in support of the appellant's cause of action. Terre Haute, etc., Traction Co. v. Phillips (1921), 191 Ind. 374, 132 N.E. 740.

On the demurrer in this case, the facts well pleaded and which shall be taken as true are as follows:

(1) The appellant was on the exterior of a building to which the gas company supplied gas.

(2) Two workmen of a plumbing contractor were connecting the gas lines to some appliances in the process of which they had to bleed the gas lines within the building.

(3) In bleeding the gas lines, the two workmen used their sense of smell to assure that gas was not escaping.

(4) The appellee knew of this common procedure and reliance.

(5) In order for this practice to be effective, the gas must be odorized.

(6) It was the long established custom of the appellee to odorize the gas.

(7) While the two workmen were bleeding the lines, gas was escaping into the building, which subsequently exploded causing injury to the appellant.

(8) The appellant asserts that the proximate cause of said explosion was the negligence of the appellee in failing to odorize the gas.

[140 INDAPP 412] The appellee in its memorandum stated two (2) points which are argued here on appeal by the appellant. We shall discuss them in the order presented.

First, the appellee in its brief and memorandum to the demurrer states that the appellant's complaint 'fails to allege any facts sufficient in law to show that this defendant breached and violated a duty owing to the defendant'. The appellee continues by stating that the complaint fails to state facts sufficient to show that the appellee was under a legal duty to odorize the gas. It is rather difficult to understand whether (1) the appellee is stating that appellant did not properly plead enough facts according to and consistent with the rules of pleading, or (2) whether under the circumstances such facts could ever be pleaded as a matter of law. Therefore, we shall address ourselves to both problems.

In the instant case, it is our opinion that the question of whether the appellee should have odorized the gas is not necessarily a question of legal duty per se. In negligence it is axiomatic that there must be a duty owed by a defendant to a plaintiff, and that there was a breach of said duty proximately resulting in the injury or damage claimed by the plaintiff. In the facts at bar, it is alleged that the appellee is under a duty to produce and distribute its gas in a reasonably safe and prudent manner. This is a legal duty and in the facts at bar, which as pleaded may well be construed to be a duty owed to the general public. The question of whether the appellee (corporation) should have odorized its gas is part of the question of the standard of reasonable care to be used in judging the conduct of the appellee in the exercise of its duty, i.e., was the conduct of the appellee in failing to odorize said gas reasonable and prudent in the exercise of the duty of due care in the production and distribution of natural gas? If the appellee is contending that the conduct of odorizing gas is not the conduct of a reasonable and prudent man (corporation), this we cannot completely answer for such is a question of fact for the jury.

[140 INDAPP 413] However, the issue presented in the case at bar may be a question of law to the extent that a party engaged in the production and distribution of natural gas is bound to odorize such gas in the exercise of reasonable care. In the case at bar, the appellant alleges that the standard of reasonable care requires that the appellee should have odorized the gas due to the following:

(1) 'it is both in keeping with due care in the sale of the defendant's gas products', and such practice

(2) 'was and is the custom of the defendant, well established by its long practice and community wide usage * * *.'

We do not deem it necessary to pass on the question of whether or not the law recognizes that a reasonable and prudent distributor of gas should odorize the natural gas it distributes in the exercise of due care regardless of past or present conduct. If a complaint is valid on any theory it must stand in the face of a general demurrer. McKenna, etc. et al. v. Standard Oil Co., etc. (1957), 236 Ind. 370, 140 N.E.2d 512.

It is our opinion that the complaint is sufficient as a matter of law in that the appellant alleged that it was the long established custom and usage of the appellee to odorize its natural gas which produced reliance on the part of those who worked with the product distributed. It has been held in Indiana that custom and usage are relevant in defining due care. The appellant points to William Laurie Co. v. McCullough (1910), 174 Ind. 477, 90 N.E. 1014, 92 N.E. 337 as authority for this proposition. The appellee criticizes this case in that it involves the question of negligence in the waxing of floors not gas and its odorization. In said case the defendant attempted to show that other concerns used the same manner of waxing the floors and additionally introduced evidence showing the accident free experience of such use. The court said, 'custom and usage * * * are competent evidence [140 INDAPP 414] on the question of care and diligence required in proper conduct * * *'. The degree of widespread usage of such a custom went only to the weight of the evidence not the admissability.

The applicability of the above case can only be questioned insofar as it is the opposite of the application of custom and usage from the case at bar. In said case the defendant developed custom and usage to show a non-negligent action on his own part. However, in the facts at bar the appellant is attempting to use custom and usage to establish that the appellee did not exercise reasonable care. If custom and usage are applicable in said case, the converse is equally applicable to the facts at bar. Since Indiana adheres to the principle of law that custom and usage are competent evidence to show non-negligent conduct, we must hold upon the same basis that the omission of a precaution as established through custom and usage may be the equivalent of the lack of due care, especially where there is reliance on said custom or precaution. One noted authority states in this regard:

'Upon the same basis, the omission of a customary precaution may, in a particular case, be negligence in itself, especially where it is known that others may rely on it. '71 Prosser, William L., The Law of Torts, 3rd Ed., 1964, p. 171.

In 65 C.J.S. Negligence § 16, p. 408, it is stated:

'Departure from customary methods does not necessarily show negligence, although it may be a proper matter for consideration in determining whether due care was exercised.'

In the facts at bar, the appellant alleged that the precaution of odorizing gas was the long established custom of the appellee, that the people who worked with the product relied on the custom, and that in this particular instance the failure of the appellee to odorize the gas was the proximate cause of the injury to the appellant. This is sufficient as a matter [140 INDAPP 415] of law. The remaining part of this question is one of fact for a jury.

The question then arises: was the matter properly pleaded? The appellee contends that it was not properly pleaded citing Southern Indiana Express Company v. United Exp. Co. et al., 88 F. 659, (CCA 7th, Ind.1898), and 25 C.J.S. Customs and Usages § 32, p. 125. We do not believe that these citations are in any way controlling authority. Southern Indiana, supra, deals with a proceeding for injunctive relief seeking to enjoin an express company from demanding prepayment of charges. This case is not authority for the question of sufficiency of pleading in alleging custom and usage in a negligence suit. In regard to the citation of 25 C.J.S., supra, it is sufficient to note that as to the pleading requirements set forth therein, no Indiana authority is cited. In addition, this section is addressed solely to custom and usage as they affect contracts.

It is difficult to comprehend what other facts the appellant might have pleaded to more properly allege an application of the principles of custom and usage. It seems that the appellee would have the appellant plead his evidence. This he is not required to do. The appellee claims that the appellant pleaded only conclusions and not facts. However, we believe that the appellant pleaded a fact, i.e., that it was the custom and practice of the appellee to odorize its gas. As previously discussed, if such fact is proven, a jury could find that the exception to the custom and usage in the face of the reliance by the workers was a breach of the duty of due care, and therefore negligence.

It should be noted that § 2--1004, Burns' 1946 Replacement provides in substance that a complaint shall state facts constituting the...