Southern Indiana Gas Co. v. Tyner

• Decision Date: 21 February 1912
• Docket Number: No. 7,442.,7,442.
• Citation: 49 Ind.App. 475,97 N.E. 580
• Parties: SOUTHERN INDIANA GAS CO. et al. v. TYNER.
• Court: Indiana Appellate Court

49 Ind.App. 475

97 N.E. 580

SOUTHERN INDIANA GAS CO. et al.

v.TYNER.

No. 7,442.

Appellate Court of Indiana.

Feb. 21, 1912.

Appeal from Circuit Court, Rush County; Will M. Sparks, Judge.

Action by Irving E. Tyner against the Southern Indiana Gas Company and others. From a judgment for plaintiff, defendant Gas Company appeals. Affirmed.Joseph E. Bell, for appellant. James E. McCullough and William C. Welborn, for appellee.

HOTTEL, J.

Appellee brought this suit against appellant for damages for personal injuries, caused by a gas explosion in a moving picture theater.

The complaint was in two paragraphs, to each of which separate demurrers were overruled and exceptions saved. The cause was then put at issue by a general denial. There was a trial by jury, general verdict for appellee in the sum of $4,200, with answers to interrogatories. A motion by the gas company for judgment on the answers to interrogatories, and separate motions by each appellant for new trial, were each overruled and proper exception saved by each, after which the court rendered judgment on the verdict, and this appeal was prayed and perfected by the gas company.

The errors upon which appellant gas company relies for a reversal of the judgment below present for the consideration of this court the rulings of the court below on the demurrer to each paragraph of the complaint, the ruling on the motion for judgment for such company on the answers of the jury to the interrogatories, and the ruling upon said company's motion for new trial.

[1] These errors, in so far as we deem it necessary to discuss them, will be considered in the above order. The only objection urged to the sufficiency of the first paragraph of the complaint is that its allegations upon the subject of appellant's negligence are conclusions of law, drawn by the pleader, and that facts showing negligence are not pleaded; also that there is no allegation that the appellant gas company had notice of the “defective conditions” of the pipe in question. This paragraph is lengthy, and we set out only that part of the same which presents the objections urged. After alleging that the appellant was a corporation engaged in the business of furnishing gas to the citizens of the city of Greenfield for light and heating purposes, the location of its gas main in the street of said city and the location of the same with reference to said building wherein the explosion is alleged to have occurred, the rental of said building, its owner and occupants, who were also defendants to the suit, the manner of the connection of appellant's supply pipe with its main, and with the supply pipe of said building, and the means of controlling and furnishing said supply, together with the further averment that said ground floor of said building was by its occupants being then used for the purpose of picture show exhibitions, that the appellant company had turned its supply of gas from its said main and plant through its said service pipe into the supply pipe of said building, and had attached the meter through which to furnish the gas to the occupants of said building, said paragraph then proceeds substantially as follows: That a few days after said gas was so turned on the defendants other than appellant and the owner, namely, the defendants in possession of said room, detected the odor of escaping gas in said room and notified appellant; that appellant reattached said meter so attached by it and again turned on the gas, and those in possession of said premises “again detected the odor of escaping gas in said room, and repeatedly notified the defendant *** of the existence of said menace to the safety of its patrons;” that the connection of the meter was “defectively made” by the appellant with a supply pipe that “was in a defective condition and unfit for use,” and on this account the “gas so turned on” by appellant “from its said main was permitted to escape” through the negligence of appellant, “and was thus imprisoned immediately beneath the floor thereof, by reason of the negligence of said defendant,” and that appellant so repeatedly notified thereof, made no “attempt to remedy the same, or any effort to discover the origin thereof, and to prevent the same,” but, “being fully apprised of the existence of said danger, *** permitted said condition to grow more aggravated until the evening of the 25th of March, 1907; that during all the time the picture shows were being given gas was by the appellant and the other defendants “negligently permitted to escape and to accumulate under said room; that on the evening of the 25th day of March, 1907, the said gas, so negligently permitted to escape and accumulate by said defendants, was ignited by reason of a boy *** accidentally dropping a lighted match through the said grate, *** thereby causing said gas to explode.”

While some of the averments supra, may be in the nature of conclusions, the facts alleged are sufficient to show notice to appellant of the escaping gas, and, independent of the allegations averring, in effect, that appellant had been notified, the paragraph contains the further averments that the connection of the meter was “defectively made” by the appellant with a “supply pipe that was in a defective condition and unfit for use,” and that, after being fully apprised of the existence of said danger, appellant permitted such condition to continue, and on account of the same the gas so turned on by the said company was negligently permitted to escape and accumulate beneath the floor of said room. These averments are sufficient to make the complaint good upon demurrer, as against the objections urged.

[2] The second error upon which appellant relies calls in question the second paragraph of the complaint, but is not argued, and is therefore waived.

[3] The third alleged error calls in question the ruling of the court on the motion for judgment on the answers to interrogatories. The interrogatories and answers thereto, upon which appellant bases its argument that the overruling of said motion was error, are as follows:

(11) “Was there any leakage of gas from or about the meter of the defendant gas company during the period of one week immediately preceding the explosion wherein plaintiff was injured?” Answer: “No.”

(16) “When the gasket was put in the union at the meter, did the defendant gas company have any notice of escaping gas thereafter until the explosion which caused plaintiff's injury?” Answer: “No.”

(17) “After the union at the meter was tightened and the new gasket was put in the connections by Mr. Dailey, employé of the defendant gas company, was there any escape of gas from the meter or pipes of the defendant gas company between that time and the time of the explosion?” Answer: “No.”

In this connection, it is important to consider the averments of the second paragraph of the complaint. This paragraph, in addition to the averments common to both paragraphs, proceeds, in substance, as follows: “The said Southern Gas Company had full notice and knowledge that said shows and entertainments were being so given daily and nightly in said building, and that large numbers of people were invited *** and induced *** to be present in said building at each and every one of said shows. *** That at the time of said renting said pipes beneath said floor of said building were old, having been placed there more than 20 years previous. *** That immediately prior to the time *** the Southern Indiana Gas Company placed a gas meter in said building, as hereinafter averred, *** natural gas had been continuously escaping from said defendant's pipes in said street into said pipes beneath the floor of said building, and remaining in large quantities under said floor, and rising through and above the floor and permeating the air in and about the said building, of which all of the defendants herein had full knowledge and notice at the time said meter was so placed. *** There was, among other holes in said gas pipe under said floor in said building, one where a riser had been taken out or removed, and no cap placed thereon or therein, and no other means adopted to prevent gas from escaping from said pipes through said hole. *** That through the holes and leaks in said pipes, and each of them, the natural gas escaped therefrom under the floor of said building and permeated the atmosphere in and about said building, which exploded and caused the injury to said plaintiff hereinafter averred. *** The Southern Indiana Gas Company, could, in the exercise of reasonable inspection and diligence, have known, at the time it attached the said meter to said pipes, of the holes in said pipes under said floor, as above averred, and of their unfitness to contain natural gas. That it negligently failed and refused to make such inspection. That, in point of fact, it did know at that time that gas was and had been escaping from its pipes in the street through said cut-off into the pipes under said building. That notwithstanding said defendant attached said meter as above averred, and so negligently attached the same as that gas escaped from the joints of the pipes attaching the same, as above averred; and said defendants wrongfully and negligently opened said cut-off and permitted said gas from its pipes to pass into said pipes under said building, said pipes being full of holes, and unfit, as above averred, knowing at that time, and frequently being notified thereafter previous to the plaintiff's injury, and well knowing, that the gas was continually escaping from said pipes.”

When this second paragraph of complaint is considered, there is little, if any, conflict between the general verdict, which is a finding that such averments were proven, and the answers to the interrogatories, when considered as a whole; and any apparent conflict between such verdict and the answers, supra, is, in a large measure, cleared up by the answers to interrogatories 8 and 10,...