City of Indianapolis D/B/A Citizens Gas & Coke Utility v. Bates

205 N.E.2d 839, 137 Ind. App. 227, 1965 Ind. App. LEXIS 576
CourtIndiana Court of Appeals
DecidedApril 12, 1965
DocketNo. 19,850
StatusPublished
Cited by12 cases

This text of 205 N.E.2d 839 (City of Indianapolis D/B/A Citizens Gas & Coke Utility v. Bates) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Indianapolis D/B/A Citizens Gas & Coke Utility v. Bates, 205 N.E.2d 839, 137 Ind. App. 227, 1965 Ind. App. LEXIS 576 (Ind. Ct. App. 1965).

Opinion

Martin, J.

This is a civil action brought by appellees Donald R. Bates and Jeanne Bates, asking damages growing out of an explosion and fire of their house and personal property. Trial was by jury, which resulted in a verdict for appellees Donald R. Bates and Jeanne Bates, assessing damages at $8000. Judgment was duly entered on the verdict.

The appellee Sears, Roebuck & Co. was dismissed from this appeal.

The appellant has assigned as errors as follows:

“The appellant avers that there is manifest error in the judgment and proceedings in this case, which is prejudicial to appellant in this:
“1. The court erred in overruling appellant’s demurrer to appellees’ complaint.
“2. The court erred in overruling appellant’s motion for judgment on the jury’s answers to interrogatories notwithstanding the verdict.
“3. The court erred in overruling appellant’s motion for a new trial.”

The appellant’s motion for a new trial was based on the following grounds:

“1. The court erred as a matter of law occurring before the trial in overruling defendant’s demurrer to plaintiffs’ complaint, which demurrer was on the ground that several causes of action had been improperly joined.
“2. The court erred in overruling defendant’s motion made at the close of plaintiffs’ evidence to instruct the jury to return a verdict for the defendant on legal paragraph 1 of plaintiffs’ complaint.
[231]*231“8. The court erred in overruling defendant’s motion at the close of all the evidence to instruct the jury to return a verdict for the defendant on legal paragraph 1 of plaintiffs’ complaint.
“4. The verdict of the jury is not sustained by sufficient evidence.
“5. Th.e verdict of the jury is contrary to law.
“6. There was error 'in assessing the amount of recovery, it being too large.
“7.' The court erred in overruling defendant’s motion made before judgment to enter judgment against the plaintiffs on the answers to interrogatories returned by the jury herein and not-, withstanding the general verdict, which motion was on the ground that said answers are in irreconcilable conflict with the general verdict.”

The trial court overruled the motion for a new trial.

The first ground under the motion for a new trial assigned by the appellant was the overruling of defendant’s (appellant) demurrer to plaintiffs’ complaint for the following reason:

“That several causes of action have been im-. properly joined.”

Appellant’s demurrer was overruled.

The appellant’s first ground for new trial is not a ground for reversal. In the case of Gary-Hobart Sav. & Loan Assn. v. Strong (1984), 99 Ind. App. 422, 426, 190 N. E. 373, the court said:

“And even if there was a misjoinder of causes of action herein, and we are not admitting such to be the fact, such .error is harmless . . . Indiana Statutes Ann. Burns §2-1009 .... No judgment shall ever be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action.” Morgan v. Henry Brick Co. (1931), 92 Ind. App. 478, 176 N. E. 237; Coan v. Grimes (1878), 63 Ind. 21.

[232]*232In the case of Kahle v. Crown Oil Co. (1913), 180 Ind. 131, 138, 100 N. E. 681, the Supremé Court said:

“No judgment shall be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action . . . Indiana Statutes Ann. Burns §2-1009 .... The above section expressly prohibits a review of a judgment expressly overruling a demurrer for misjoinder of causes of action.” Pittsburgh, etc., R. Co. v. Brown (1912), 178 Ind. 11, 97 N. E. 145, 98 N. E. 625; Boonville Nat. Bank v. Blakey (1906), 166 Ind. 427, 76 N. E. 529; Brown v. Bernhamer (1902), 159 Ind. 538, 65 N. E. 580; Carger v. Fee et al. (1895), 140 Ind. 572, 39 N. E. 93; Coan v. Grimes, supra; City of Huntington v. Stemen (1906), 37 Ind. App. 553, 77 N. E. 407.

Under our statutes (Burns’ §2-1009 1946 Replacement) a reversal of judgment for overruling a demurrer for misjoinder of causes of action is expressly prohibited. Pittsburgh, etc., R. Co. v. Brown, supra; Boonville Nat. Bank v. Blakey, supra; Brown v. Bernhamer, supra; Murphy v. Branaman, Adm. (1901), 156 Ind. 77, 59 N. E. 274; Armstrong et al. v. Dunn et al. (1896), 143 Ind. 433, 41 N. E. 540.

We hold that there was no reversible error committed by the trial court in overruling the defendant's (appellant) demurrer.

The 7th ground, under the motion for a new trial, reads as follows:

“7. The court erred in overruling defendant’s motion made before judgment to enter judgment against the plaintiffs on the answers to interrogatories returned by the jury herein and -notwithstanding the general verdict, which motion was on the ground that said answers are in irreconcilable conflict with the general verdict.”

Under the argument portion of appellant’s brief [233]*233“B”, interrogatories 14, 15, 16 and 17 and the jury’s answers were as follows:

“14. Did the plaintiffs ever notice any gas smell in their home after December 20, 1956, down to and including June 30,1958 ?
“Answer: No.
“15. Did plaintiffs.ever notify defendant Citizens ' Gas of any gas leaks in plaintiffs’ home after December 20, 1956, up to and including June 30, 1958?
“Answer: No.
“16. Was the gas range in plaintiffs’ home at 3721 Pleasant Run Parkway, South Drive, Indianapolis, Indiana, connected to the gas line with a copper tube or tubing?
“Answer: No.
“17. Was the gas range in plaintiffs’ home at 3721 Pleasant Run Parkway, South Drive, Indianapolis, Indiana, connected to the gas line with a flexible brass tube or tubing ?
“Answer: Yes.”

The specific acts of negligence complained of in appellees’ paragraph I of complaint are herein set out in rhetorical paragraph 13.

“13. Acting by and through its agents and employees, Defendant Citizens Gas was careless and negligent in the.following particulars:
“(a) It carelessly and negligently failed to warn Plaintiffs that flexible brass hose was prohibited as unsafe for use in connecting domestic gas ranges with house piping, and was unsafe for use in connecting the gas range in Plaintiffs’ house with the pipe running to the gas meter.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Downs v. Panhandle Eastern Pipeline Co.
694 N.E.2d 1198 (Indiana Court of Appeals, 1998)
Boyle v. Anderson Fire Fighters Ass'n Local 1262
497 N.E.2d 1073 (Indiana Court of Appeals, 1986)
Palace Bar, Inc. v. Fearnot
376 N.E.2d 1159 (Indiana Court of Appeals, 1978)
Prudential Insurance Co. of America v. Winans
325 N.E.2d 204 (Indiana Supreme Court, 1975)
City of Indianapolis v. Falvey
296 N.E.2d 896 (Indiana Court of Appeals, 1973)
Bob Anderson Pontiac, Inc. v. Davidson
293 N.E.2d 232 (Indiana Court of Appeals, 1973)
Jerry Alderman Ford Sales, Inc. v. Bailey
291 N.E.2d 92 (Indiana Court of Appeals, 1972)
Northern Indiana Public Service Co. v. Otis
250 N.E.2d 378 (Indiana Court of Appeals, 1969)
Moore v. Boxman
245 N.E.2d 866 (Indiana Court of Appeals, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
205 N.E.2d 839, 137 Ind. App. 227, 1965 Ind. App. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-indianapolis-dba-citizens-gas-coke-utility-v-bates-indctapp-1965.