East Ohio Gas Co. v. Van Orman , 41 Ohio App. 56 ( 1931 )

This cause comes into this court, upon petition in error, from the common pleas court of Stark county, Ohio. A brief statement of facts, as disclosed by the record before us, shows that on the 17th day of January, 1929, an explosion occurred in the home of Clayton C. Harter, on Greenwood Avenue, S.W., in the city of Canton, Ohio. Mr. Harter, who was in the basement of his home at the time, and his wife, who was in the upper part of the house when the explosion occurred, were both injured. The house was completely destroyed by the force of the explosion and the ensuing fire. Some twenty-five or thirty feet west of the Harter house was located the home of the defendant in error herein, Adda E. Van Orman. The instant action was brought by the defendant in error to recover damages for injuries she sustained as a result of the explosion. A trial was had to a jury in the court of common pleas of Stark county, and resulted in a verdict of $5,000 for the plaintiff below. The defendant, the East Ohio Gas Company, prosecutes error to that judgment.

In the presentation of this case, both in oral argument and by way of brief, several reasons or grounds are alleged why the verdict of the jury in the lower court should be set aside.

We shall take up these claimed errors in the order in which they were presented. The first question is whether or not the doctrine of res ipsa loquitur applies in the instant case, and whether or not inferences of fact predicated upon other inferences of fact are supported by the evidence. For a proper solution and determination of these questions reference is had toSt. Marys Gas Co. v. Brodbeck, Admr., 114 Ohio St. 423,151 N.E. 323, and to the case of Sobolovitz v. Lubric Oil Co.,107 Ohio St. 204, 140 N.E. 634. The Brodbeck case was also an explosion case. That case concerned an explosion occurring in the cellar of the home of the plaintiff, but in that case the negligence was based on the failure of the gas company to maintain the gas fixtures in the cellar in proper condition, and in the fifth paragraph of the syllabus we note the following holding: "Where it is claimed that a presumption of negligence arises from injuries due to a defective appliance or instrumentality, it must appear that such instrumentality is under the management or control of the defendant or his agents and servants."

This was the deciding point in that case, inasmuch as the gas company in that case did not exercise sole control and management of the gas fixtures. In the instant case the gas lines in the street, from which it is claimed the gas came that caused the explosion, were under the sole management and control of the plaintiff in error herein. Therefore it is obvious that any rule of law predicated upon the facts contained in the Brodbeck case would be inapplicable to the present case, as the facts there are entirely dissimilar to the facts here.

With reference to the argument of basing or predicating an inference upon an inference, we have in the instant case, as developed by the record, the following facts:

(1) There was an explosion; (2) the presence of gas of some kind in the basement of the Harter home coming through the opening around the water pipes leading in from the street, which gas was ignited and burned throughout the day following the explosion; (3) the presence of gas mains in the street containing gas; (4) improper installation of the mains, as found by the jury.

So the question arises, Can the above facts be converted into a chain of reasoning by supplying inferences to fill the vacancies, without violating the rule of Sobolovitz v. Lubric OilCo., supra, which holds that one cannot predicate an inference upon an inference, but must support such inference by the facts? To infer that the substance which caused the explosion in the basement of the Harter home was the same substance that caused the fire around the water pipes we think is a permissible inference, from which to draw the conclusion that the substance which ignited at the opening of the water pipes came from that portion of the street surrounding the gas mains. By so reasoning, then we can meet the fact as found by the jury that due to improper installation of the said mains the gas pipes leaked. So that it is clear to us that, once it is proved that the substance causing the explosion in the Harter home came from that portion of ground surrounding the gas mains of the gas company, a jury would be warranted in inferring that the gas came from said mains, and that the gas company was negligent in permitting it to do so. The gas mains in the street were under the sole management and control of the gas company, bringing the situation squarely under the Brodbeck case, hereinbefore referred to.

It is also contended that the verdict is inconsistent with the special finding of fact, in that the jury in the special finding found that the gas company was negligent in improper installation of its gas lines. Written interrogatories were submitted to the jury in the court below by the defendant below, and the jury found that due to improper installation gas did escape from the line. The plaintiff below alleged in her petition that the defendant company was negligent in permitting gas to escape. The jury found in plaintiff's favor on this proposition, and by way of answering the interrogatories said that escape of gas was caused through improper installation of the gas lines. If the gas company in installing the mains, and thereafter, had complete control over the mains, and negligently permitted a leak to form, it would be negligent thereafter in permitting such leak to continue and gas to escape through the same. Surely the plaintiff below could not be held to definite and certain knowledge of those facts which were peculiarly and solely within the knowledge of the defendant below. To allow the contention of the gas company would be to inflict upon plaintiff the restrictions found only in the old common-law method of pleading.

Another complaint made by the defendant, the gas company, is of the misconduct of plaintiff's counsel, in that counsel brought the plaintiff into court when she was unable to come and unable to testify; the defendant claiming that this was done for the sole purpose of inflaming the minds of the jury. We find no error in this regard and no misconduct of counsel therein. The plaintiff below was entitled to be in the courtroom if she so desired; she being the plaintiff in the case at bar.

Further question is made as to whether subsequent repairs on an instrumentality figuring in the explosion could be introduced in evidence. Plaintiff in error claims that in so doing there was error. We think otherwise, and hold that such evidence was properly admitted to show the control of the defendant over the instrumentality.

It will be noted in the defendant's answer filed herein that the defendant company admits that on or about the 17th day of January, 1929, it maintained a gas pipe line in Greenwood avenue, S.W.; that about said date an explosion occurred on that street in the residence of one Harter, badly damaging the Harter residence. It is to be noted that the gas company admits that it maintained a gas pipe at said place, but does not admit the control, supervision, or ownership of said gas line, and we believe and hold that this evidence was permissible for the purpose of showing ownership and control of said gas line. We believe that said evidence was competent and admissible, referring to 17 Ohio Jurisprudence, 163 and 164, and Village of Monroeville v. Weihl, 13 C.C., 689, 6 C.D., 188.

Further complaint is made to the charge of the court as to the definition of preponderance of evidence. The court below said that: "Preponderance of evidence meant that evidence which in your judgment is more deserving of credence, which is more appealing to your minds as a determining factor in arriving at your conclusion than other evidence with which it may be compared."

While the above portion of the charge is unusual, we do not believe it to be erroneous, not prejudicially so.

Another contention made by the plaintiff in error is that the shock or fright of her injury must be accompanied by some contemporaneous physical injury before there can be a recovery.

We note on page 187 of the record, as testified by plaintiff, that the explosion threw her over a chair and onto a table, injuring her back. So that, if the jury believed this evidence, which no doubt they did, then we fail to see why this contention should be upheld. We note that the court said in its charge to the jury that: "You must find some evidence of a contemporaneous, physical injury;" further, that there is no minimum injury set by law which plaintiff below must suffer before she can recover; the slightest injury is sufficient. And the jury evidently found such an injury in the present case.

The only remaining contention made by plaintiff in error is that the trial court, in instructing the jury in the general charge after argument, to the effect that the jury should consider only the law as given by the court, and should not follow any presentation of legal questions by counsel, deprived counsel for the gas company of their right to comment upon the charges before argument given in response to their request, and nullified the effect of comments already made.

The charges before argument had already been presented when counsel arose to argue their case, and any comments by counsel upon the points of law contained in said charges would not be a presentation of legal questions. So that in substance it leaves in effect the statement made by the court to the jury that they should consider only the law as given by the court, and we believe that the foregoing was a correct statement by the court below.

Therefore, from a careful examination of the record in this case and of the errors complained of by plaintiff in error, we find that the plaintiff proved and made her case and that the verdict of the jury was right, and we find no errors herein prejudicial to the rights of the parties hereto, and it therefore follows that the finding and judgment of the court below will be, and the same hereby are, sustained.

Judgment affirmed.

SHERICK, P.J., and MONTGOMERY, J., concur.