Rock Oil Co. v. Brumbaugh
| Citation | 59 Ind.App. 640,108 N.E. 260 |
| Decision Date | 26 March 1915 |
| Docket Number | No. 8510.,8510. |
| Parties | ROCK OIL CO. et al. v. BRUMBAUGH. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Delaware County; Robert M. Vanatta, Judge.
Action by Jacob J. Brumbaugh against the Rock Oil Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.Thompson & Sprague, of Muncie, for appellants. Koons & Koons, of Muncie, for appellee.
This suit was brought by appellee against appellants, the Rock Oil Company, Alva L. Kitselman, David M. Kitselman, Edwin Fay Kitselman, Carl M. Kitselman, and John W. Smith, to recover damages for the burning of a dredge alleged to have been caused by the negligence of appellants. From a verdict and judgment in appellee's favor, this appeal was prayed.
The errors assigned and relied on for reversal are that the court erred in: (1) Overruling appellants' joint and several motion to make the complaint more specific; (2) in overruling appellants' joint and several demurrer to the complaint; (3) in overruling appellants' joint and several motion for judgment on the answers of the jury to the interrogatories notwithstanding the general verdict; (4) in overruling the motion for a new trial.
The substance of the averments of the complaint, omitting averments about which there is no controversy, is as follows: The Rock Oil Company is a corporation, and the other defendants are partners doing business under the firm name of Kitselman-Smith Oil Company, and were engaged in operating a large number of oil wells and storing the oil in tanks. On July 8, 1910, appellants had collected and stored large quantities of crude oil in tanks constructed by them, which tanks were insecurely and improperly hooped, and liable to burst and let the oil escape therefrom. The oil so stored was highly inflammable, dangerous, and liable to do mischief if it should escape from appellants' premises, on which it was stored, all of which was well known to appellants, who took no precautions to prevent the same from so escaping, if any of the tanks should burst. Appellants did not place or maintain any walls, inclosures, or barricades around said tanks to prevent the escape of the oil from their premises, well knowing the same was liable to escape and damage and destroy appellee's property.
Appellants maintained a ditch from their oil field and premises on which their oil tanks were situated, which ditch connected with a certain tributary ditch which ran into and connected with a certain public ditch duly established in pursuance of law which appellee was then and there engaged in constructing, by means of a dredging machine, in the neighborhood of, and about three-fourths of a mile from and below, said oil tanks. By means of said drains appellants conveyed salt water and refuse or dead oil substance into the public ditch which appellee was so constructing. The dead or B. S. oil so conveyed was not highly inflammable or dangerous, and floated on the surface of the water in said main ditch, and was not distinguishable in appearance from live and highly inflammable oil, which appellants suffered to escape from their premises as herein alleged. Appellee's servants and agents in charge of and operating said dredging machine had no knowledge or notice, and appellee had no knowledge or notice, that the oil appellants allowed to escape into said ditch was live oil and highly inflammable, and did not then and there realize or appreciate the danger thereof, and did not discover or know that the same was live oil, or other than an accumulation of said dead or B. S. oil which had been previously flowing into said ditch.
On July 8, 1910, appellee was the owner of said dredge and was engaged in operating the same, in pursuance of a contract regularly entered into by him and the duly authorized drainage commissioner, all of which appellants then and there well knew. The dredge was operated by steam produced by the use of coal as fuel, and on said day, while said machine was carefully and properly operated in dredging said ditch, appellants carelessly and negligently suffered and permitted one of said tanks containing live oil, which was so insecurely hooped and maintained as aforesaid, to burst by reason of not being securely hooped, and negligently and carelessly suffered and permitted large quantities of live, gaseous, and highly inflammable oil to escape from their premises, and to flow through said ditches into the public ditch where appellee was using said dredge, and to accumulate on the surface of the water around said dredge, well knowing the same would endanger appellee's dredge and property, and was liable to be ignited and burn and destroy said property, all without giving appellee or his agents or employés in charge of said dredge any notice of the inflammable character of the oil. Said oil became ignited from a spark, or hot cinders or coals of fire, or hot substance of some kind, accidentally falling upon or into the oil from the furnace used in operating the dredge, which was then and there necessarily fired and operated in a careful and proper manner at the usual and proper time in the necessary operation of the dredge. The dredge was thereby burned and destroyed, without any fault or negligence on the part of appellee or any of his employés or servants in charge of and operating the same, to appellee's damage in the sum of $6,000. All of which loss and damage was directly and proximately caused by the negligent failure of appellants to keep their tanks aforesaid containing live oil properly hooped so as to prevent their bursting, and to prevent the escape of live oil from appellants' premises through said ditches into the public ditch where appellee was operating said dredge, and by the negligent failure of appellants to surround said tanks with walls or barricades to prevent the escape of live oil from their premises and thereby flow into the public ditch aforesaid.
The appellants moved the court to require appellee to make his complaint more specific in numerous matters of description and detail; viz., to set out more particularly the alleged negligence in permitting the oil to escape; in what respect they were negligent in the construction and maintenance of their oil tanks; to more particularly describe the nature and character of the dead or B. S. oil and the live oil mentioned in the complaint; to more particularly describe where and how the oil floating on the water around the dredge took fire.
[1] Most of the details called for were particularly within the knowledge of appellants, who were in no way deprived of any right by the overruling of the motion. On the facts of this case the motion presented a question within the discretion of the trial court, and no reversible error was committed by the ruling thereon. Terre Haute Brewing Co. v. Ward, 102 N. E. 395-397;Cleveland, etc., Ry. Co. v. Bowen, 179 Ind. 142, 100 N. E. 465;Kinmore v. Cresse, 53 Ind. App. 693-696, 102 N. E. 403, 404;Knickerbocker Ice Co. v. Gray, 171 Ind. 395-401, 84 N. E. 341.
[2][3] Appellants assert the insufficiency of the complaint on the ground that the allegations as to the defective hoops on the tanks are not statements of facts, but mere conclusions of the pleader; that the complaint shows no duty on the part of appellants to surround their oil tanks with walls or barriers to prevent the escape of the oil, and there is no averment that it was practicable so to do; that the complaint fails to show that the alleged negligence was the proximate cause of the injury complained of; that the complaint shows that the fire which destroyed the dredge was caused by a responsible intervening agent for which appellants were in no way responsible. The complaint charges, in substance, that the tanks containing the live oil were constructed by appellants and were insecurely and improperly hooped.
These are statements of ultimate facts susceptible of proof, and are not mere conclusions of the pleader. Cleveland, etc., Ry. Co. v. Clark, 51 Ind. App. 392-404, 97 N. E. 822;Morgantown Mfg. Co. v. Hicks, 46 Ind. App. 623-627, 92 N. E. 199;Dieckman v. Louisville, etc., Trac. Co., 46 Ind. App. 11-19, 89 N. E. 909, 91 N. E. 179;Indianapolis St. Ry. Co. v. Marschke, 166 Ind. 490-496, 77 N. E. 945.
The complaint attempts to state in one paragraph two independent acts or omissions of appellants which caused the destruction of appellee's dredge; one the negligent failure to confine the live oil on appellants' premises and to erect walls or barriers around the tanks to confine the oil in case one should burst; and the other the use of improper and insufficient hoops in the construction and maintenance of the tanks in which the live oil was stored. Such independent acts or omissions may be so alleged, and, if the averments show any one of them to have been the proximate cause of the alleged injury, the pleading will withstand a demurrer for insufficiency of facts to state a cause of action. Mercia v. Ft. Wayne, etc., Trac. Co., 49 Ind. App. 288-293, 97 N. E. 192.
[4] The complaint does not allege that appellants owed appellee the duty of keeping the live oil securely confined in receptacles on their premises. But the existence of a duty depends upon the facts alleged, and the law will imply the existence of a duty where the facts pleaded warrant such inference. Chicago, etc., Ry. Co. v. Lain, 170 Ind. 84-89, 83 N. E. 632. In this state we have a statute (section 9062, Burns 1914) which requires oil and gas produced from wells to be safely and securely confined in wells, pipes, or other safe and proper receptacles.
The complaint shows the relative location of the oil tanks, the ditches, and the dredge, and it is alleged that appellants negligently took no precautions to confine the live oil on their premises, and negligently failed to erect and maintain any walls or barriers around the tanks so insecurely hooped, well knowing they were liable to burst, and that...
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