W. S. Moore, Plaintiff in Error, v. B. C. Lanier, Defendant in Error, 52 Fla. 353

Whitfield, J.: On October 3, 1904, the defendant in error brought an action in the Circuit Court for Lake County against the plaintiff in error, the declaration as amended being as follows: “For that, on and before the 29th day of July, A.

D. 1904, the plaintiff was the owner of a certain stock of goods, wares and drugs located in a certain storeroom, known as the Crescent Drug Store, on the north side of Main Street, in the town of Lees-burg, which store room was then and there equipped with certain showcases, shelves and windows,-and which storeroom was then and there occupied by the plaintiff as a tenant of one Mrs. E. M). Venable, and the plaintiff, as ■such tenant aforesaid, is liable to the said Mrs. E.

M. 'Venable for any and all damage or'injury done to said windows; and that the plaintiff is the owner of all showcases and fixtures in said storeroom, and in which storeroom the plaintiff was then and there conducting a mercantile business, and offering his said goods, wares and ■drugs for sale; that about the middle of the said month of July, 1904, the defendant for himself or for others entered into a verbal agreement with the plaintiff whereby the said defendant undertook with the plaintiff to furnish and lay a service pipe from and connecting with the gas mains in said Main Street of said town into the said storeroom so occupied and used by the plaintiff, and to properly fit, install and equip same for the purpose of ■conveying or conducting acetylene gas from said gas mains into the said store-room for the purpose of illuminating the said storeroom, for a certain reward in that behalf to be paid by the plaintiff; that after the making of the said verbal agreement by the defendant, and after he bad laid the said service pipe into and about in the said storeroom and connected same with the gas mains in said street, and had turned the acetylene gas into the said service pipe, the defendant, well knowing that the said acetylene gas was highly explosive, did so negligently and carelessly fit, install and equip the said service pipe in the said store room that the gas escaped therefrom into the said store room, and became ignited, whereby an explosion occurred, and whereby the plaintiff was greatly damaged and injured in goods, wares and drugs to the amount of $400.00; and whereby he was greatly damaged and injured in showcases, shelves and windows to the amount of $300.00; and whereby the plaintiff was greatly damaged and injured in the closing of his business to the amount of $300.00.

And the plaintiff claims $2,000.00 damages." The defendant demurred to the declaration on several grounds and the demurrer was overruled.

As only the fourth ground is argued here it alone is here quoted as-follows: “That the plaintiff does not show or allege in his said declaration Iioav, by Avhat means or in what manner the said gas became ignited.” Subsequently the defendant moved the court to “require the plaintiff to state definitely and issuably in his declaration the manner in which the gas became ignited, because the declaration as noAV framed prejudices, embarrasses and delays a fair trial of the action in this: (

a) Because it is not alleged therein that the defendant was the person liable or by whose fault the gas became ignited; (

b) that it is not shown that the explosion of the gas was not the direct fault of the plaintiff; (

c) that it is not shown in or by the declaration who fired the said gas or that the mere fact that the gas escaped caused it to become ignited without any direct cause or fault of any one.” This motion was overruled and the defendant excepted. The following pleas were then filed by the defendant: “1st. That he is not guilty as alleged in plaintiff’s declaration. 2nd. That the damage, if any at all, Avhich plaintiff suffered for which suit is here brought, was caused by and through the plaintiff’s own negligence by and through his agent and employee, Geo.

Hanford, who then and there Avas the direct and sole cause of the explosion of gas complained of. 3rd. That this defendant was not the cause of the explosion and damage complained of in plaintiff’s declaration, but that one Geo. Hanford who then and there brought fire into contact with escaping gas without any fault of negligence on the part of this defendant was the direct and approximate cause of the explosion and damage complained of in plaintiff’s declaration.

And plaintiff prays to be hence dismissed with his costs and charges in this behalf most wrongfully sustained.” The plaintiff’s motion “to strike the defendant’s second and third pleas because the said pleas set forth matters proof of which may be taken under the defendant’s first plea” was granted and the defendant noted an exception. Issue was joined on the first plea and at the trial verdict and judgment were rendered for the plaintiff. The defendant on writ of error here assigns as errors: “1st. Because the court erred in overruling the defendant’s demurrer to the plaintiff’s declaration. “2nd.

Because the court erred in overruling the first ground of the defendant’s motion for compulsory amendments and thereby refused to compel the plaintiff to state how the gas became ignited and who was the cause thereof. “3rd. Because the court erred in sustaining the plaintiff’s motion to strike defendant’s second and third pleas and in striking said pleas. “4th. Because the court erred in admitting over defendant’s objection a paper purporting to be an estimate of the cost of putting in the store gas piping and fixtures. “5th.

Because the court erred in sustaining plaintiff’s motion to strike defendant’s evidence as to who piped the store, and what pipe was used. “6th. Because the court erred in refusing to give the first, second, fourth, fifth, seventh, ninth, and ; tenth charges, and each of them asked for by defendant. “7th. Because the court erred in giving the first and second charges and each of them asked for by plaintiff. “8th. Because the court erred in giving the third charge given of his own motion. “9th. Because the court erred in overruling defendant’s motion for a new trial. “10th.

Because the court erred in overruling defendant’s motion in arrest of judgment. “11th. Because the court erred in allowing the jury to take the papers filed in evidence marked exhibits ‘A’ and ‘B’ to their jury room with them while considering their verdict. “12th. Because the court erred in entering up a judgment against the defendant and in favor of the plaintiff for the damage alleged to have been done to the store building.” The plaintiff in error argues here only the fourth ground of the demurrer to the declaration, thereby abandoning all other grounds, consequently only the fourth ground is set out above.

If the declaration wholly fails to state a cause of action this court may take notice of it, even though there be no demurrer. See Florida Cent. P. R. Co. v. Ashmore, 43 Fla. 273, 32 South. Rep. 832.

The ground of the demurrer argued here is “that the plaintiff does not show or allege in his said declaration how, by what means, or in what manner the said gas became ignited.” It is not necessary in a case like this to allege how, by what means, or in what manner the gas became ignited where it is alleged that the defendant, well knowing that the said acetylene gas was highly explosive, did so negligently, and carelessly fit, install and equip the service pipes put by the defendant in the storeroom of the plaintiff that the gas escaped therefrom into the said storeroom and became ignited whereby an explosion occurred and damaged plaintiff’s property, then the demurrer was properly overruled.

In an action brought to recover damages for property destroyed through the negligence of another, the declaration should allege facts showing the negligence complained of to be a proximate cause of the injury sustained. Proximate cause is that which naturally leads to or produces or contributes directly to producing a result such as might be expected by any reasonable and prudent man as likely to directly and naturally follow and flow out of the performance or non-performance of any act. See Jacksonville, T. & K. W. Ry. v. Peninsular Land, Transp. & Manuf’g Co., 27 Fla. 1, 9 South. Rep. 661, S. C. 17 L. R.

A. 33; Milwaukee and St. Paul Railway Co. v. Kellogg, 94 U. S. 469. If the injury complained of is traceable directly to the negligence and careless escape of gas into the storeroom, although the immediate cause of the explosion was ignition, the defendant is liable under the allegations of the declaration if the injury was one that could reasonably have been expected under the attending circumstances.

The declaration alleges that the store room was “equipped with certain showcases, shelves and windows * * in which storeroom the plaintiff was then and there conducting a mercantile business, and offering his goods, wares and drugs for sale;” that the defendant laid a “service pipe into and about in the said storeroom.” The defendant therefore knew the conditions of the storeroom and from his undertaking to put in the gas connections he must be held to the exercise of due care and to have known that injury would naturally and probably follow the escape of gas into such a storeroom.

The explosion caused the injury here, but if there had been no gas in the storeroom there would have been no expío-' sion. Whether the defendant was responsible for the ignition or not is immaterial in this case since the ignition was not an intervening independent cause, but both it and the gas were present and directly contributing causes of the explosion. If the gas was present because of the negligence of the defendant as alleged in the declaration he is responsible for all ‘ the direct consequences of its presence that could reasonably have been anticipated.

It cannot be said as a matter of law that ignition and explosion from some condition or cause would not naturally, probably and directly follow the escape of gas in a store room equipped Avith shoAvcases, shelves and windows and used for the sale of goods, wares and drugs.

If the gas was present because the defendant did negligently and carelessly fit, install and equip the. service pipe in the storeroom and it became ignited without the plaintiff’s negligence contributing thereto, and an explosion occurred, the defendant is liable for the damages resulting from the explosion, even though he Avas not responsible for the ignition. See Koelsch v. Philadelphia Co., 152 Pa. St. 355, 25 Atl. Rep. 522; Huntington Light & Fuel Co. v. Beaver, 37 Ind. App. 4, 73 N. E. Rep. 1002; Snydor v. Arnold, Ky. —, 92 S. W. Rep. 289; Pine Bluff Water & Light Co. v. McCain, 62 Ark. 118, 34 S. W.

Rep. 549; Atkinson v. Goodrich Transp. Co., 60 Wis. 141, 18 N. W. Rep. 764; Consolidated Gas Co. v. Getty, 96 Md. 683, 54 Atl. Rep. 660; Koplan v. Boston Gas Light Co., 177 Mass. 15, 58 N. E. Rep. 183; 20 Cyc. 1173; Alexandria Mining & Exploring Co. v. Irish, 16 Ind. App. 534, 44 N. E. Rep. 680; Pullman Palace Car Co. v. Laack, 143 Ill. 242, 32 N. E. Rep. 285; Richmond v. Gay, 103 Va. 320, 49 S. E. Rep. 482; City Electric Co. v. Coney, 61 Ark., 381, 387. What has been said herein disposes of the motion for compulsory amendment of the declaration, except as to the ground of contributory negligence.

In this State contributory negligence is a matter of defense. There was no error in denying the motion. Louisville and Nashville Railroad Company v. Yniestra, 21 Fla. 700; City of Orlando v. Heard, 29 Fla. 581, 11 South. Rep. 182; Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, 29 South. Rep. 541.

Even if the court erred in striking the second plea on the ground that contributory negligence could be shown under the general issue, the defendant was given full opportunity under the general issue to introduce evidence on the subject of the contributory negligence of the plaintiff, and consequently he cannot complain here.

The third plea doe& not connect the plaintiff with the act of the third person named therein, and even if this third person did cause the ignition it does not, upon the principles above announced, 'relieve the defendant of his responsibility for the presence of gas because of his negligence which was a directly contributing cause of the explosion. The issue tendered by the third plea was immaterial.

The sixth assignment of error is: “Because the court erred in refusing to give tlie first, second, fourth, fifth, seventh, ninth and tenth charges and each of them as asked by the defendant.” If any one of these refused charges was properly refused this assignment fails under the rule where two or more distinct charges are embraced in one assignment of error as stated in McCoggle v. State, 41 Fla. 525, 26 South. Rep. 734; Maloy v. State, 52 Fla. 101, 41 South. Rep. 791.

The refused charge numbered one contains the proposition that unless it be proven that the defendant was responsible for the ignition as well as for the presence of the- gas the verdict should be for the defendant. This is in conflict with the principles announced above, and the charge was properly refused. The next assignment of error covers two separate charges given at the request of the plaintiff and if any of them was properly given the assignment fails.

One at least, if not both of the charges referred to in this assignment, was in accord with the law stated above, and was properly given, therefore the assignmnet was not well taken. The other charges complained of conform to the principles herein announced and no reversible errors appear therein. There is evidence to sustain the verdict. This disposes of all the questions argued. The judgment is affirmed. Taylor and Parkhill, JJ., concur; Shackleford, C. J., and Cockrell, J., dissent. Hocker, J., disqualified.