*1 аre opinion apparent also because ambiguity existing (Sections between the Sections involved 53-203, supra), interpret
53-202 and and the case law ing statutes, these that a materialman could .come provisions Sections, within the of either one of the may bring upon any remedy suit under Section 53-203 he law, at common we find no error the trial court. bonds, statutory must be remembered that these bonds are them, apply the statutes do but far as so 53-203, supra, states, they any Section do not conflict protection. other laws for their
Thus, opinion bar, we arе of the in the case at 53-201, correct statute limitations is to be found Section supra, wherein it is stated:
contractors “Provided, further, [1] year after the final shall not be released until the That the settlement with said contractor or surety of said contractor or expiration of one .contractors.” Finding no error reversible we are of the
judgment of the trial court should be affirmed.
Judgment affirmed.
Pfaff, J., P. concurs.
Cook,
JJ.,
Smith,
concur.
Reported in
James D. appellant. Loyd Fitzpatrick, both of Indian-
Hugh Reynolds J. E. Weisell, Boyd Indianapolis, Locke, Reynolds, & apolis, and counsel, Washington, all for Allen, both of Hastings & appellee. appeal court’s aсtion is an from the lower J. —This
Hunter,
sustaining
defendant-appellee. the demurrer
appeal
plaintiff-appellant
plead
refused
over.
ruling
brought
on
error of the trial court’s
complaint (here-
paragraph
the second
of the fourth amended
sufficient
complaint)
to state facts
inafter referred to as
failed
filed a motion
of action. The
also
to constitute
cause
specific
paragraph
complaint more
to make the said second
court. Conse-
which said motion was overruled
the lower
construing
sufficienсy
quently,
appeal
complaint,
facts well
we are limited to a consideration of the
pleaded
any
sup-
without
factual conclusions whatsoever in
port
appellant’s
Haute, etc.,
cause of
Terre
action.
Phillips
Traction Co. v.
191 Ind.
(1) appellant building The was on the exterior of a gas company supplied gas. which the (2) plumbing Two workmen of a contractor connect- were ing gas appliances process the lines to some in the they gas which had to the build- bleed the lines within ing. (3) bleeding gas lines, In used their the the two workmen gas escaping. sense of smell to assure that was not appellee (4) procedure The knew this common reliance.
(5) effective, In order this to be the must be odorized. long (6) appellee the established custom of the gas. ordorize the bleeding (7) lines, gas the two workmen While were the escaping building, subsequently into the causing exploded injury appellant. to the proximate (8) The asserts that the cause of said failing explosion to ordorize appellee was the of the in gas. the appellee points in (2) its memorandum stated two argued appeal by appellant. which are here shall the presented. discuss them in the order First, appellee the in its brief and memorandum to the appellant’s complaint demurrer states that “fails to allege any in facts sufficient law to show that defendant duty owing breached and violated a to the defendant.” The appellee by stating that continues fails to appellee a state facts sufficient to show that was under legal gas. duty to odorize thе It is rather difficult under- stating (1) appellee did stand whether plead enough according properly to and consistent pleading, (2) cir- with the roles of or whether under the pleaded such facts ever be as a matter of cumstances could Therefore, problems. law. shall ourselves to both we address case, question In the instant it is our is not whether should have odorized negli necessarily legal duty per In question a se. gence duty owed it is there must be a axiomatic that a plaintiff, there was to a defendant resulting injury duty proximately of said breach bar, damage plaintiff. it is In claimed the facts duty produce dis is under a reasonably prudent This in manner. tribute its safe legal bar, pleaded duty in facts at which as is a general public. be construed to be owed well (corporation) question of whether the rea part standard odorized appel judging in the conduct of care to be used sonable duty, i.e., ap was the conduct of exercise of its lee failing prudent pellee reasonable and to ordorize *4 production duty of due care in the of the the exercise contending gas? apрellee that is If the of natural distribution odorizing gas conduct of a reasonable is not the the .conduct completely cannot prudent (corporation), this we man jury. question fact for the is a for such answer
413 However, presented in the issue case bar engaged question party in the law that a extent production gas and distribution of to odorize natural bound gas case at such in the of reasonable care. In the exercise alleges bar, the standard of reasonable requires odorized the care following: due to the
(1) keeping is bоth in “It due care in the sale gas products,” practice defendant’s such defendant, (2) well estab- “was and is the custom of the usage long community its wide lished necessary pass question We do deem it on the recognizes pru whether or not the law that a reasonable and dent distributor should odorize the natural regardless it distributes exercise of due care past present complaint If conduct. is valid on any theory general it must stand in the of a face demurrer. McKenna,, Co., etc. et al. v. Standard Oil etc. 236 370, 140 E. N. 2d Ind.
It our that the is sufficient as a matter long of law in that the it was estab usage lished custom and odorize produced part of natural reliance on the product those who worked with the distributed. usage has been held in Indiana custom and relevant are defining appellant points due care. The Laurie William McCullough (1910), v. Co. 174 Ind. E. N.
authority proposition. for this criticizes this in that it case involves in the wax ing of floors not and its odorization. In said case the de attempted fendant to show that other concerns used the same waxing additionally manner of floors and introduced evi showing experience of use. The dеnce the accident free said, competent . are evidence court “custom . . *5 414 ,care diligence question proper required in con-
on the degree widespread usage .” The of such a custom duct. . . admissability. only weight not the went the evidence questioned applicability can The of the above case be opposite application of custom insofar it usage de- the defendant from the case at In said case bar. usage non-negligent veloped action custom and show a part. However, his own in the facts at bar the usage attempting use custom and to estаblish that usage appellee did not exercise reasonable care. If custom and case, equally applicable applicable in are the converse is principle of to the facts bar. Indiana adheres Since usage competent to show custom and are evidence law that non-negligent conduct, must hold the same basis we through custom precaution the omission a as established care, equivalent may the lack of due be the precau- especially custom or there is reliance on said wherе authority regard: in this tion. One noted states customary pre “Upon basis, a same omission of itself, may, case, particular in be caution a rely especially others it is known that where Torts, L., Law Prosser, The 71” William on it. Ed., 1964, p. 171. 3rd 16, p. S., Negligence, it is stated: In 65 C. J. § necessarily customary methods “Departure from does although may proper for negligence, matter it show determining exer- due care was whether consideration cised.” precaution bar, facts at In the long custom of the odorizing gas established product relied people worked with who appellee, that particular failure instance the custom, in this and that on the proximate cause was the appellee to odorize matter appellant. This is sufficient as injury of remaining part question of law. The of this is one of fact jury. pleaded? properly then arises: the matter citing properly pleaded that it was not .contends al., Express Company Exp. Co., Southern Indiana et v. United 659, (CCA 7th, 1898), S., 88 F. Ind. C. J. Customs Usages, 32, p. are doWe not believe that these citations § any way controlling authority. supra, Indiana, Southern *6 proceeding seeking injunctive enjoin deals awith relief express company demanding charges. prepayment an from of authority sufficiency This question case is for the of not alleging pleading usage negligence custom and in a suit. In regard S., 25 supra, citation of J. C. it is sufficient pleading requirements therein, note as to that the set forth authority addition, no Indiana In is cited. this section ad is solely usage they dressed to custom and affect contracts. comprehend It is difficult to what other facts the might pleaded properly allege application to more an usage. prinсiples of custom appellee It seems that the appellant plead would have the his evidence. This he is required appellee appellant pleaded to do. The claims that the only However, conclusions and not facts. we believe that fact, pleaded i.e., a prac- it was the custom and gas. tice of previously discussed, odorize its As proven, jury if exception such fact is a could find that the the custom in the face of the reliance the work- care, negli- ers was a breach of the of due and therefore gence. 2-1004,
It should be noted Replacement Burns’ 1946 § provides complaint in substance that a shall state consti
tuting plain language cause of action in and concise understanding person enable sufficient to of common apprise to know is what intended and to defendant he what be called to defend. will We believe that been has done case at bar and that such facts without sufficiently
any of action conclusions constitute cause pleaded. memorandum, point to- his raised another assuming negligence part appеllee, on the
wit: accident,
negligence proximate was not cause of plumbing contrac rather the two workmen of the but intervening negligence provided tor an act injury proximately complained A demurrer of. caused only appearing on the face of com attacks those defects plaint. Replacement; Corp. Burns’ 1946 Matlaw §2-1007, v. Corp. App. Damage War E. Ind. 112 N. 2d do not on its 233. We believe shows face is correct its contention that there intervening negligence. act acts The contentions was an matters, evidentiary pertain morе to the ultimate made question determined a mixed of fact and to be concurring very to discern between law. difficult intervening except as established the evidence. questions properly after the sub These can viewed in a trial on the merits. mission evidence foregoing reasons, judgment trial all For *7 set court is with instructions to vacate and aside reversed appellee’s judgment de- to for the and overrule appellant’s motion trial for new murrer and to sustain opinion. proceedings not inconsistent with this further and Prime, JJ., Smith, J., and concur. C. Carson Opinion Biеrly, J., J., Mote, concurs. Dissents Wickens, JJ., participating. and Faulconer
Dissenting Opinion holding majority herein to the Mote, to dissent J. —I wish of this Court. ruling by appeal presented appellee’s demurrer addressed court which sustained
the trial appellant’s paragraph complaint, to fourth amended second “complaint,” seeking hereinafter sometimes referred to as to damages personal injuries alleged recover for have to been sustained explosion said as the result of an original appear June It is made to com- plaint against Lehigh Co., Co., Portland Cement Cherne Inc., Contracting Co., Fruin-Colnon Truck- and Mitchell ing Company. Appellant defendant, later added as a against and the parties action all other at various times apparently was dismissed.
Said fourth paragraph amended second al- leges in following: substance the
Appellee, corporation, engaged an supply Indiana gas and the sale of public, reasonably natural knew, or should highly explosive known it to be a inflammable and tendency substance with a escape, plumbers pipe еmployed by fitters were industrial contractors to connect appliances supplying gas; lines natural in order to prepare appliances necessary bleed, for use it was or purge, the air pipes gas begins from said or lines until through flow plumbers same pipe and said fitters rely on their appellee’s sense smell to detect odor, begins when it through pipes flow and out of said air; lines into the in the exercise of due care in the sale gas products said appellee’s it was custom, and is well estab- by long practice cоmmunity lished usage, wide to odorize protection against said as a escape its unnoticed into the alleged air. It is further knew, reasonably known, pipe solely fitters relied odor in flowing to detect the same when in the bleed- ing operation. date, Lehigh further that on said Portland Company
Cement plant, including the owner of a a build- ing manufacturing, Mitchell, Indiana, east of plumb- and a *8 ing contractor, Company, Inc., The Cherne employed had been already
by install, installed, owner and it had a certain gas building. gas appellee’s supply line from line to said gas appellee, according supplied allegations, for Lehigh including Company plant, said Portland Cement building to, above and on mentioned date referred above Emory Ramsey, plumbers, Cooper Lloyd pipe fitters and and employees Company, Inc., began of The to bleed said Cherne gas purpose connecting pipe for the to a the same certain building; appliances hot water heater in said said and other Cooper Ramsey community and live in the where gas community practiced its and their trade in said sold had they years prior time, number of to said and knew that gas they its “heretofore had odorized said and knew longstanding practice and of said defendant custom long- gas, relying employees, on said odorize its and said standing custom to odorize and said defendant began gas gas, pipes lines had said to bleed said and that gas began been until to flow there- heretofore constructed gas ; bleeding said in said build- from” that said lines was aforesaid; ing Lehigh Company, that Portland Cement during escaped gas from lines said said flowed and said by bleeding building escaped into said undеtected said Lloyd Ramsey, Emory Cooper that said for the reason odorized; place after said said time and escaped being said and, unnoticed, accumulated in had warning gas suddenly building, violently and without said ex- causing building explode apart ploded, and fall said great force and violence.
“6. knew, or known That defendant said Lehigh Co., ordinary care, Portlani Cement exercise agents employees their would neces- contractors gas; sarily lines use the defendant’s have to bleed knew, the exercise they have known or should rely рipefitters ordinary plumbers would care, pipes had to determine when odor in the upon the bled.
been *9 place explosion, That the time and was of said which standing p.m., plaintiff at about the hour of 12:50 was directly on a board on ladder rack a truck which was on adjacent building aforesaid, to side of and the north said plaintiff engaged soldering guttering was seams explo- building facing when said and south. That said occurred, building parts plaintiff sion and said struck through upon the explosion him the air and said threw inflicting upon injuries, ground, him . . alleges Appellant explosion further thаt the injuries and his proximate negligence were the direct and result set Specifications (a) (e), speci- forth in both inclusive. Such fications include: gas.
(a) Failure to said odorize (b) adequately Failure to odorize said so that same bleeding could be detected site pipe at the where took place, inadequate being odorization unknown to but known to well defendant. notify Lehigh
(c) Company Failure Portland Cement Company, Inc., and The Cherne and their employees, said Emory Cooper Lloyd Ramsey, and by delivered not odorized. was hаving known,
(d) by That or the exercise of rea- known, plumbers pipe sonable caution should and including fitters, Cooper Ramsey, solely and relied same, notify odor in to detect said failed warn or Lehigh Company Portland or Company, Cement The Cherne agents Inc., employees, including Cooper Ramsey, or or its and odorizing of its discontinuance its custom and finally gas, said appellee having known,
(e) That the exercise of rea- known, plumbers pipe sonable .caution community, including Cooper Ramsey, fitters relied solely upon same, negligently thе odor in the to detect notify Company, Inc., pipe fitters, Cherne failed to in- eluding Cooper Ramsey, said on said date that not odorized. alleges complaint paragraph of fourth amended second
injuries proximate of the above result caused as a direct concerning referred to and certain purpose However, we disability, time, his for this loss etc. regard unnecessary it as make reference to such additional allegations. complaint specific,
Appellee motion said more filed to make finally ovеrruled, filed a demurrer and thereafter accompanied fourth amended second memorandum parts, which, omitting paragraph the formal *10 reads as follows: Co., Inc., defendant, demurs “The Indiana Gas & Water complaint paragraph
to for cause of demurrer of the fourth amended second alleges says: paragraph com- fourth amended second of That the plaint sufficient to a cause fails to state facts constitute against defendant.” of action accompanying forth the demurrer sets memordandum complaint allege significant the said that to essence fails vio- at law to show breached or that sufficient facts by duty owing appellant, it to or vio- which breached lated a proximate duty appellant of the was the cause lated said resulting injuries; pleading explosion shows proximate of the cause accident and result- face that the employees ing injuries act and conduct of of The was Inc., creating legal act; intervening Company, a thus Cherne any negligence part of on the of act and that cause, negligent if remote indeed become a would any manner. upоn re- demurrer and court sustained The trial judgment plead over, was rendered fusal of resulting appellee, in this against appellant and in favor of assigned therein court appeal. The error trial sustaining said demurrer. erred parties presented excellent Counsel both us with arguments. pertinent com- briefs and oral extensive Without ment, I think action is based we assume that the within allegations negligence of would be sufficient negligence demurrer, provided withstand were such acts charged against duty appellee by is owed. one to whom laying groundwork negligence After part on the appellee, appellant merely alleges that at the time ensuing explosion, soldering when he was on the seams in or building involved, injured. eaves of the he was duty will noticed that has no owing appellee. to him the conclude E., pages the rule enunciated in 21 I. L.
372, 373, 142, Chapter 6, Negligence, appears Section under application to have strict to the case at It is said that: bar. “The in an action for must show legal duty part existence on the of defendant person injured exercise care as to the . insufficient .. at the time and place injury. So, allege merely it is negligently performed perform defendant or failed to whereby injury caused, certain acts without an allegation showing duty in the matter. defendant’s pleading sufficient, duty “In order for the to be part allega- care on the of defendant must be shown an duty tion of from facts which the follows as a matter duty so law. It is sufficient to state facts from which the showing details, arises and if the stated without legal duty allegation care, express show a is not duty, is insufficient an of such *11 necessary. allegation A mere the existence of such arises, without a statement of the facts from which it being legal a mere of a con- statement (Emphasis supplied.) authorities thereunder clusion.” See cited. analysis study no discloses
A careful conclusions, allegations therein, of facts or which either such any duty appellant, impose and even would negligence regard specifications though were to we demurrer, if alleged complaint sufficient to withstand in the alleged by appellee appellant, in the absence were allegation authority to overrule the trial such we have no entirety, complaint, in its court or to hold that the considered allege duty. or in fact does show judgment. I affirm would
Bierly, J., concurs. Re-Hearing
On Petition involved, complete statment of the J. —For a Hunter, ques- original (1966). 2d 556 The see the N. E. appellant’s appeal com- presented tion on this is whether plaint a de- cause of action sufficient to withstand stated a demurrer, appellee’s The lower court sustained the murrer. appel- plead appellant over. after which the refused overruled. then filed a motion for new trial which lant assigning brоught appeal Subsequently this ruling for new trial as error. on the motion by appeal question presented whether
The main in the exercise of under the laws of it bound to odorize the which distributed due care was so, proximate odorize the if was the failure appellant. injury to cause of was bound to odor- produced standard it and distributed as the ize the requires care that: of reasonable keeping (1) is both in with due care sale “it gas products,” and such defendant’s defendant, custom of well estab- (2) and is the “was long practice community wide lished it not find opinion, we did original it was stated In the allega- presented the first necessary pass on the recognizes reason- that a not the law tion, whether to-wit: gas should odorize of natural prudent distributor able
423 regardless the it in of due distributes the exercise care past present of or conduct. We stated that it was sufficient usage it was “the custom and community defendant, long practice well established its usage. wide . . .” held the of Laurie Co. basis William McCullough 1014, 477, E. 174 Ind. N. E. 92 N. v. long practice appellant alleged that the established of defining appellee the to be relevant in the exercise in whether gas. appellee of reasonable the to its care was bound odorize We stated that to establish the fact would be sufficient gas. appellee that the its should have odorized We are now of the that the authorities cited therein inapplicable are for the the reason that did not allege practice it industry that was the custom and of gas; appellant alleged odorize the rather the it that was practice gas. custom There odorize fore, McCullough, pertinent William Laurie Co. supra, v. allegation, case bar under an per for said case industry, tains to custom and of an etc.
However, change this does not result this case. The allegation relating second to the custom Assuming its odorize remains valid. the law does not recognize gas company that a is bound odorize its keeping care in reasonable the distribution gas, appellee may of natural still liable under principles though affirmative conduct. Even instance, was not bound to odorize the first once developed odorizing practice gas, it it beсame negligence in liable for such action. analogous
The facts at bar are to the situation where a flagman warning signal crossing railroad maintains a aat though However, it even is not bound law or statute. others, up part once it has built a reliance on the give warning failure to of the discontinuance of practice particu- or a failure to maintain negligence. v. Terminal result
lar instance will Greenfield App. 147, E. 2d Louis, (1937), 6 N. 289 Ill. R. Ass’n St. Rope Cor cited. also Nelson Union Wire cases v. 888 and See *13 dealing 769, poration (1964), 69, with 199 E. 2d 31 Ill. 2d N. gratuitous act, arising from a situаtion of duties (1964 Torts, 10, p. Ed.). Prosser, ch. 342 Law of though Consequently, bar in the facts at even gas, originally duty its no odorize been under have practice, use reasonable it bound to it started such a after discontinuing the of failure to others Whether the warn care. failing practice merely particular in the practice, or negligent question of for act is a fact time in court in trial on the jury or the merits. Furthermore, now of the we are exercise of due to odorize the natural care was bound previously The court has stated: it distributed. judicial knowledge of the fact natural take “Courts explosive highly gas Public 405, inflammable and substance.” is a App. Dalbey (1949), 119 Co. Ind. Ind. Service v. 415, 2d 368. 85 E.N. dangerous propensities of natural In view present state, a com it would seem that these odorless principle that pelling for distributors basis in to odorize such natural should bound give warning presence. of its order to encompassed hold within the that this to exercise reasonable care in the distribution of distributors gas. previous held, Indiana have so No eases neither natural contrary. However, jurisdictions any other held to holding. City Couch, Villа support Rica v. 281 F. See 1960) ; (1951), (5th Winkler Macon Gas C. A. v. Co. 2d 284 C. dealing gas; 1017, 386, propane 238 2d with 361 Mo. S. W. 814, (1944), Northwest Cities Gas Co. 65 Idaho Doxstater v. dealing gas. 498, with butane 154 2dP. holding, allegation
In of this view of custom unnecessary. alleging In was bound to exercising care, odorize the natural due stated facts sufficient to constitute a cause action and demurrer been overruled. changes original opinion part no
We make dealing intervening concurring with issue acts authority other than to refer recent of our Supreme Court Elder v. Fisher 247 Ind. support position.
N. E. 847 in further of our 2d re-hearing for Petition denied. J.,
Wickens, Faulconer, J., participating. C.
Mote, J., P. dissents statement.
Bierly, Carson, Smith, JJ., Prime and concur. Re-Hearing
On Petition *14 (Dissent) original opinion P. J. —Our dissent to the deci-
Mote, reported sion upon in 218 E.N. 2d 556 was not based majority conclusions stated on Petition for Rehear- ing. required As a matter of fact we would be to hold that specifications were sufficient to withstand de- deficiency complaint murrer. The to which the demurrer lies in sustained the fact does allege permit appellant to opportunity facts sufficient to necessary requisites establish evidence the any duty appellant. owed to whatsoevеr point deficiency dissenting out We tried in our regard obligations opinion. duty owing by as essential plaintiff defendant an action this character. Not necessary allege showing duty; is it facts it also necessary prove the same once the matter comes trial. allegation Appellee’s relied lack demurrer .concerning complaint fatally which make the de- demurrer, opinion, properly sus- in our
fective and tained. Rehearing re- denied Reported E. 2d 556. N.
Note. — ported 693. in 221 N. E. 2d et al. Railroad Co. v. Churchill
New York Central 17, 1966. 20,334. Rehearing October July denied Filed [No. February 28, 1967.] denied Transfer