The Indiana Natural And Illuminating Gas Company v. Anthony

• Decision Date: 13 December 1900
• Docket Number: 3,255
• Citation: 58 N.E. 868,26 Ind.App. 307
• Parties: THE INDIANA NATURAL AND ILLUMINATING GAS COMPANY v. ANTHONY
• Court: Indiana Appellate Court

58 N.E. 868

26 Ind.App. 307

THE INDIANA NATURAL AND ILLUMINATING GAS COMPANY v. ANTHONY

No. 3,255

Court of Appeals of Indiana

December 13, 1900

Rehearing denied February 21, 1901.

From the Boone Circuit Court.

Affirmed.

S. M Ralston, for appellant.

T. J Terhune and W. A. Tipton, for appellee.

OPINION

ROBINSON, J.

Complaint by appellee in three paragraphs to recover damages for the wrongful turning off of gas from a heating stove, also for injuries resulting from the alleged negligence of appellant, and to recover alleged excessive charges wrongfully extorted from appellee. Demurrers overruled. Answer in five paragraphs, to the fourth and fifth of which a demurrer was sustained. To the first and second paragraphs of answer a reply in two paragraphs was filed, to the first of which a demurrer was overruled. Trial by jury with verdict in appellee's favor, and answers to interrogatories. Motions for judgment in appellant's favor on each paragraph of complaint on the answers to interrogatories and motion for a new trial overruled. The rulings on these various motions and the several demurrers are assigned as error.

In the first paragraph of complaint it is averred that appellant is a corporation having, by virtue of certain ordinances which are made part of the complaint, certain powers, privileges, and franchises, among them, to lay mains and pipes in the streets of the city of Lebanon, and to furnish and supply the citizens with gas for light and fuel; that appellee owned a dwelling-house along a gas line, which house was fitted for using gas; that on the 24th day of November, 1897, he attached an upright stove to the service-pipe, made application to appellant for gas, and paid the monthly charge therefor in advance; that appellant thereupon commenced to supply the same with gas, and did supply the same until the 17th day of February, 1899, when appellant's servants without right, and over the protest of appellee's daughter, who was the only member of appellee's family at home at the time, forcibly entered appellee's house and disconnected the stove from the service-pipe, all of which was done without appellee's fault; that when the gas was shut off appellee was not in arrears in payment of rates, but had paid the same in advance of that date, which appellant knew; that the weather was severely and excessively cold and appellee had no other means of warming his house except a cook-stove, which was wholly inadequate; that appellee made immediate demand of appellant to turn on the gas, and informed appellant that on account of the coldness of the weather himself and family would suffer from the cold; that appellant refused to turn on the gas, and for four days and nights deprived appellee of gas for his stove, during which he and his family suffered greatly from the cold and suffered great bodily and mental pain and distress from the cold weather.

The second paragraph avers in substance that the ordinances, which are made exhibits, prescribe certain duties and liabilities on appellant's part, that appellant charged appellee a greater rate for gas than it was entitled to charge; that since November 24, 1897, to March 10, 1899, appellant "wrongfully, illegally, and extortionately" compelled appellee to pay a monthly rate for gas used in his stoves in excess of the rates fixed by ordinance, to wit, twenty-five per cent. in excess of the rate fixed, which rate is pleaded; that such excessive rates were collected under threats of turning off the gas, and appellee, having no other means to heat his house, and to prevent the gas from being turned off, paid the excessive rates under protest. Judgment for $ 10.92 is prayed.

The third paragraph sets out the duties of appellant under the ordinance granting its franchise, which ordinance is an exhibit, and avers that appellee has for a long time been a consumer of gas furnished by appellant for heating his dwelling-house; that he was dependent upon appellant for fuel, having no other means of heating his house except by gas furnished by appellant, all of which appellant well knew; that appellant furnished gas brought through pipes from a point about twenty miles distant, and had knowingly, purposely, and negligently permitted the pipes to become rotten, decayed, and broken, whereby large quantities of gas escaped and was wasted; that by reason of such negligence, and neglecting to repair and keep the pipes in repair, and by reason of such neglect and failure, appellant was unable to furnish gas in proper and sufficient quantities to appellee; that appellant for a long time failed, neglected, and refused to furnish appellee with gas in sufficient quantities for the purpose of warming his house; that by reason of such neglect and refusal during the cold weather of 1898 and 1899 and without appellee's fault, he was by such refusal and neglect almost wholly and entirely deprived of gas for heating his dwelling-house; that on account of such negligence, failure, and refusal, appellee's dwelling was destitute of warmth or heat to the extent that appellee and his family suffered greatly in body and health and from mental anxiety on account of the extreme cold, all of which was occasioned by appellant's failure and neglect to keep its pipes carrying gas in proper and reasonable repair and failure to supply him with gas in proper and sufficient quantities. It is also averred that appellee had in his dwelling certain provisions and potted plants and flowers, which were destroyed by the cold weather and appellant's neglect and failure to supply appellee with gas.

Appellee filed a joint demurrer to the complaint stating as grounds, that the court has no jurisdiction of the subject-matter; that several causes of action are improperly joined, in that the first paragraph is for breach of contract, and the second and third sound in tort; and that neither paragraph states sufficient facts. The sufficiency of the complaint is also questioned by an assignment of error that "the complaint of appellee does not state facts sufficient to constitute a cause of action." This is a joint assignment. It follows that if either paragraph is sufficient, the first and third grounds of demurrer and the assignment that the complaint does not state facts are not well taken. Kenney, Rec. v. Wells, 23 Ind.App. 490, 55 N.E. 774; Gilmore v. Ward, 22 Ind.App. 106, 52 N.E. 810; Franklin Ins. Co. v. Wolff, 23 Ind.App. 549, 54 N.E. 772.

As to the first ground of demurrer, it is true the city ordinance provides a penalty for failure to comply with its conditions, but this does not interfere with the right of a party who is aggrieved to maintain an action in his own behalf to recover such damages as he may have suffered from the wrongful act of the company. It will certainly not be contended that a city could by an ordinance in any manner abridge the right of a citizen to maintain an action for a wrong done him personally.

Nor can we agree with counsel that an action on contract has been joined with an action in tort. All three paragraphs of the complaint are in tort. It is true, in the first paragraph, appellee was receiving gas under a contract with the company, but it was held in Coy v. Indianapolis Gas Co., 146 Ind. 655, 36 L. R. A. 535, 46 N.E. 17, that such a contract is but a statement of the reasonable conditions under which the company was required to perform its duty, and that in such a case the action may be on contract or in tort as the necessary statement of facts is substantially the same in either case. "The failure to perform such a contract is in itself a tort".

It is unnecessary to enter upon a discussion of the sufficiency of the facts averred in the first paragraph, as under the rulings in the case of Coy v. Indianapolis Gas Co., supra, it states a cause of action. There was no error in overruling the demurrer to the complaint.

Appellant answered the complaint in five paragraphs, the third of which was the general denial. A demurrer to the fourth and fifth paragraphs of answer was sustained.

The fourth paragraph of answer is addressed to the third paragraph of complaint, and denies that the appellant had any contract with appellee to furnish gas to him, but alleges that the contract to furnish gas for the house in question was with a person other than appellee. This was a denial of any obligation to furnish gas because of any agreement with appellee, and it is clear such facts were provable under the general denial, which was pleaded. If there was any error in sustaining the demurrer to this paragraph, it was harmless.

The fifth paragraph of answer is addressed specifically to the third paragraph of complaint only, and in determining its sufficiency only such matters as are well pleaded in answer to the third paragraph of complaint can be considered. But much of this paragraph is applicable only to matters averred in the first paragraph of complaint and those of its allegations in answer to any averments in the third paragraph of complaint are not sufficient as an answer in bar. The third paragraph of complaint proceeds upon the theory that appellee was damaged because of appellant's negligence and failure to keep its lines in repair, and negligently permitting them to become rotten, decayed, and broken, in consequence of which a large amount of gas escaped from the pipes. Upon that theory only could appellee recover upon this paragraph. If the lines were kept in proper repair, that fact was provable under the general denial. We can consider the pleading only as the record presents it, and as it comes to us there was no error in sustaining the demurrer.

The first and second paragraphs of answer addressed to the first paragraph of complaint allege, among other things, that by...