The Mississinewa Mining Co. v. Patton
| Decision Date | 03 November 1891 |
| Docket Number | 13,293 |
| Citation | 28 N.E. 1113,129 Ind. 472 |
| Parties | The Mississinewa Mining Company v. Patton et al |
| Court | Indiana Supreme Court |
From the Grant Circuit Court.
The judgment is affirmed, with costs.
C. E Shipley, for appellant.
W. H H. Carroll and G. H. Dean, for appellees.
--The appellee Cora M. Patton brought this action against the appellant to recover damages alleged to have been caused by the negligence of the appellant.
In the caption of her complaint the name of her husband appears as a co-plaintiff, but in the body of the complaint no mention is made of him in any manner. The property alleged to have been destroyed is averred to be her property, and no attempt is made to state a joint cause of action. Under the circumstances we must regard the name of the husband in the caption as surplusage, and hold that the complaint is not bad on demurrer for failure to present a good cause of action in favor of both plaintiffs, under the rule laid down in Berkshire v. Shultz, 25 Ind. 523, and cases following it. See, also, Stewart v. Babbs, 120 Ind. 568, 22 N.E. 770.
The complaint is in a single paragraph, and charges that the plaintiff was the owner of a dwelling house and lot in the town of Marion; that the house was of the value of $ 1,250, and that it contained personal property belonging to her of the value of $ 750; that the defendant was a corporation, organized under the laws of Indiana, being engaged in furnishing natural gas for fuel and light to the citizens of Marion, having and owning mains and pipes laid in the streets of said town, so carelessly laid and constructed said pipes and gas mains as to allow and permit such gas to flow and escape from its line of pipe through which such natural gas was being conducted over, upon, through, and into plaintiff's lot aforesaid, and into the dwelling aforesaid, and to accumulate therein in such quantity that the same came in contact with a lighted lamp therein, without the fault of plaintiffs, and exploded, and set fire to and destroyed the building and its contents, without any fault of the plaintiff, to her damage in the sum of $ 2,000.
A demurrer was overruled to this complaint, and the ruling is assigned as error.
The first objection to the complaint pointed out in the brief of counsel is that it does not show that the defendant owed the plaintiff any duty of which negligence of the defendant could be considered a breach.
The complaint is not very full or specific in its statement of the acts of negligence of which the defendant was guilty, or of the manner in which the plaintiff was injured, but it does show that the plaintiff owned a lot in the town, and that the defendant had its mains and pipes laid in the streets of the town. This we think is sufficient to show that the defendant owed a duty to the property-owners of the town to use reasonable and ordinary care in so planting its pipes and mains as to prevent the escape of gas therefrom in such quantities as to become dangerous to life and property. This duty the defendant owed to the community in virtue of its occupancy of the public streets which belonged to the community, for its own special and extraordinary use in conducting an article which we know to be "in a high degree inflammable and...
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