Washington Tp. Farmers' Co-Operative Fuel & Gaslight Co. v. McCormick

• Decision Date: 05 April 1898
• Citation: 19 Ind.App. 663,49 N.E. 1085
• Court: Indiana Appellate Court
• Parties: WASHINGTON TP. FARMERS' CO-OPERATIVE FUEL & GASLIGHT CO. v. McCORMICK.

19 Ind.App. 663

49 N.E. 1085

WASHINGTON TP. FARMERS' CO-OPERATIVE FUEL & GASLIGHT CO.

v.McCORMICK.

Appellate Court of Indiana.

April 5, 1898.

Appeal from circuit court, Delaware county; George H. Koons, Judge.

Action by the Washington Township Farmers' Co-operative Fuel & Gaslight Company against Charles McCormick. From a judgment for defendant, plaintiff appeals. Reversed.

W. W. Orr, for appellant.

ROBINSON, C. J.

Appellant, by a written contract, agreed to furnish appellee and others named natural gas for light and heat, and agreed to lay all mains along the public highway in front of each residence, and keep the same in repair, and, in consideration therefor, was to receive $15 per year for 10 years, $60 to be paid when the mains were laid, and $15 at the beginning of each year after four years. Appellee executed his note for the $60. Suit was brought on the note, and also on the contract for the subsequent years. Appellee answered by way of set-off and counterclaim. A trial by jury resulted in a verdict for appellee, upon which judgment was rendered. The overruling of the motion for a new trial is the only error discussed. Much of the argument of appellant's counsel is directed to evidence which is conflicting, but, under the well-settled rule, we cannot weigh the evidence to determine where the preponderance lies. Appellant's counsel complain of the admission of certain evidence. The issue presented by the counterclaim was the failure of appellant to furnish gas as agreed in the contract, by reason of which certain damage had resulted to appellee. The contract required appellant to lay its main in the highway in front of appellee's residence, and to furnish at such place sufficient gas to properly heat and light appellee's residence. It was appellee's duty to lay and keep in repair the service pipe from the main in the highway to his residence. Appellee called a number of witnesses who had been receiving gas from the same main with appellee, and who lived on farms in the same neighborhood with appellee. These witnesses testified, over appellant's objection, that during the time in question they had had no gas at times, and at other times an insufficient supply of gas in their respective residences. This was done without any showing that the conditions and manner of receiving gas by these witnesses were the same or in any way similar to the conditions under which appellee was receiving gas, nor was any attempt made in some instances to show what kind of connections they had with the main. When the first of these witnesses was testifying, the court stated that the evidence was only admitted on the ground of tending to show whether there was any gas in the main from which appellee drew gas. To sustain his counterclaim, it was necessary for appellee to prove by a preponderance of the evidence that the company had failed to furnish gas, as it had agreed to do. The jury found for appellee on his counterclaim, so that the controlling question in the case was whether appellant had furnished in the main in the highway sufficient gas to light and heat appellee's residence. Appellee's counsel has not favored us with a brief, but we fail to see how the evidence complained of could be competent. Appellant was bound by the contract only to furnish gas in the main in the highway, and, without some showing as to the manner in which these witnesses drew gas from the main, such evidence could not be competent. For aught that appears, the main in the highway may have been filled with gas, and the residences of these witnesses insufficiently supplied, because of inadequate or defective service pipes. The jury were left to infer that, because these witnesses did not have sufficient gas, appellee was insufficiently supplied, without any showing that like or similar conditions existed. In the case of Bauer v. City of Indianapolis, 99 Ind. 56, a suit for personal injuries caused by a defective sidewalk, the judgment was reversed, because the trial court permitted appellee to prove that persons other than appell...