On Motion for Rehearing.
Appellant in addition to complaints of our action in overruling the numerous assignments of error originally presented, with renewed emphasis insists that we erred in overruling its contention that the general demurrer to the plaintiff’s petition should have been sustained by the trial court, and that there is no evidence which authorizes the conclusion of the jury that appellant was negligent in turning in or permitting the introduction of an excessive amount of gas in the pipe line of the Caddo Gas Company.
In support of its contention that the general demurrer to the plaintiff’s petition is well founded, stress is laid upon the case of Oglesby’s Sureties v. State, 73 Tex. 658, 11 S. W. 873, cited by us in our original opinion. The contention is that, because of the allegation in the plaintiff’s petition that the “Caddo Gas Company or the Texas Pacific Coal & Oil Company, or the Caddo Gas Company or' some of their agents, employees, or representatives” turned into the gas mains in Caddo the alleged excessive pressure of gas, it is uncertain which of the two companies committed the wrong complained of. In disposing of the question on original hearing, we recognized the rule established by the case of Oglesby’s Sureties v. State, supra, and other authorities, and expressly stated that' the quoted allegation, standing alone, left it uncertain that the Texas Pacific Coal & Oil Company was guilty of the wrong’s complained of, and that, if so construed,, the demurrers should have been sustained. 'But, we undertook to show by quotations from subsequent portion^ of the petition that, construed as a whole, it sufficiently charged that the appellant company as well as the Caddo Gas Company was guilty of the wrongs alleged. That this conclusion is erroneous, counsel for appellant presents a certified cppy of the orig-inal petition in the Oglesby Case, which the Supreme Court held insufficient The petition alleged, in substance, that Oglesby, on the 4ch day of November, 1884, had been elected sheriff and tax collector of Maverick county for the term of two years; that he duly qualified and executed the proper bond for the faithful performance of his duties as such; that later, to wit, on the' 2d day of November, 1886, he was again elected sheriff and tax collector- of Maverick county, and qualified and gave the proper bond as such; that during the terms he acted as -such from 1884 to-1888 he had collected in taxes the sum of $10,779.80, but had retained in his hands and refused to pay over the sum of $1,104.39, to-recover which the suit was brought. The petition contained this specific, allegation:
“That as the account herein sued upon and hereto attached as an exhibit is for taxes for the year 1886 upon the tax rolls of 1886, it is impossible for plaintiff to say whether or not the money due plaintiff is due as money collected under the said bond of date of December 4, 1884, .or as money collected under said bond of date of November 16, 1886, and the sureties of both parties are made defendants herein, to the end that whatever equities that may exist between them on said two. bonds, if any, may be equitably adjusted in this suit, and thus a multiplicity of suits avoided by casting the liability where it justly belongs.”
In addition to the allegations which we have stated in substance and of those above quoted, the petition further contained allegations to the effect that “the defendants have wholly failed to'comply With the terms and conditions of said bond,” ‘etc.; that “said' Thomas L. Oglesby, sheriff and collector, has wholly failed either to account for, or to pay over to the plaintiff, any portion of the taxes so collected by him, save and except” as above noted; that “the sum of $1,104.39, which amount, with legal interest thereon, is justly owing by defendants to plaintiff”; that said Thomas L. Oglesby and the sureties on the several bonds, naming them, all defendants as aforesaid, by reason of the making, execution, and delivery of the bonds as aforesaid, and the subsequent defalcation of the said sheriff and collector as herein stated, became justly liable and bound, and promised to pay to the state of Texas, the plaintiff herein, the sum of $1,104.39, with interest thereon as prescribed by law at 8 per cent, per annum from maturity; that none of the defendants, though often requested so to do, have ever paid or caused to be paid to the state of Texas all or any portion of the said sum of $1,104.39; but that they and each of them have wholly failed and refused and, after repeated demands, still fail and refuse to pay the same,” etc. And the prayer was that the defendants be duly cited and that upon a trial “judgment may be rendered against each and every one *114of the said defendants in iavor of the plaintiff,” etc.
, The exception to the petition as stated by the Supreme Court was that “its allegations did not distinctly show the liability of the sureties on the second bond for the principal’s default.” This exception the Supreme Court sustained, ruling, in effect, that the petition failed to allege unequivocally the facts which show the unconditional liability of the parties sought to be charged. It is insisted with great earnestness that the petition in the Oglesby Case as a whole more clearly shows the joint liability of the sureties than does the petition in the present case show a joint or several liability of the appellant and the Caddo Gas Company for the wrongs complained of in this ease, but we think the cases are clearly distinguishable.
It is to be noted that the exception in the Oglesby Case was in its nature a special one.' It pointed out particularly the defect urged, whereas) in the case before us the demurrer was a general one, which on its face does not call particular attention to the defect now urged. Moreover, in the Oglesby Case the action was strictly ex contractu, and the sureties on the several bonds were necessarily disconnected, and the specific allegation .that it was “impossible for the plaintiff to say whether or not the money due the plaintiff” was due under the bond executed in 1884 or under the bond executed in 1886, necessarily,. as it seems to us, excludes an inference from the latter general allegations that the sureties on the several distinct bonds were jointly liable. As observed by the Supreme Court in the Oglesby Case:
“Their obligations were separate and distinct, and the liability of those upon the one bond was in no sense dependent upon the liability of those upon the other. It is true that both sets of sureties were not responsible for the same defalcation, and that from the very nature of the case what the one set was liable for the other was not.”
In the petition here under consideration, in addition to allegations quoted in our original opinion, which we concluded relieved the petition as a whole from the uncertainty of the allegation made the ground of objection, we note the following:
“The defendants, each and all of them, well knew, or, if they had used ordinary prudence and diligence would have known, that said gas pressure was too strong and great for the pipes and the plumbing and fixtures for gas purposes of those used by plaintiffs and other citizens using gas in the town of Caddo. * * * That if said high pressure of gas in said mains was not turned on by the defendants, their agents, employees, and representatives, nevertheless they became liable therefor because it was their duty to use ordinary care to prevent a high pressure being turned into, the mains and pipes of said town, by arranging for, fixing, and ipre-, paring ordinary safety valves and appliances so as to prevent an accident due to high pressure turned into the mains to which their lines were ‘ connected. * * * That said fire was caused by the negligence of the defendants, and the proximate cause of said fire was due to the high pressure of gas in said lines. * * * That if there was a regulator in the gas line to which these plaintiffs were connected the same was defective, insufficient to regulate the gas pressure, and did not regulate the same, because the gas would come and go, sometimes low and sometimes high, showing that said regulator, if any, was insufficient, improper, and not a safe reg-. ulator.”
We further note that the defendants in this case joined in their answers, making common defense to the action, and in their original answers (to which, in passing upon the general demurrer, we are authorized to look; see Lyon v. Logan, 68 Tex. 521, 5 S. W. 72, 2 Am. St. Rep. 511; Riggs v. Pope, 3 Tex. Civ. App. 179, 21 S. W. 1013, Trust Co. v. Caruthers, 11 Tex. Civ. App. 430, 32 S. W. 837), we find that they pleaded the general denial to “all and singular the allegations in plaintiffs’ petition contained, and demand that strict proof be made thereof,” and further specially:
“That these defendants specially deny that the pressure was so great and. severe that many of the gas pipes, and especially those lying on top of the ground, walked,' crawled, or moved from their usual place; and these defendants further specially deny that on said day and date the gas pressure in their said lines was too great or any greater than necessary, and these defendants further specially deny that on said, day and date in question the said fire was caused from any act or acts of them, their agents, servants, and employees.”
The answers of the defendants further show that the gas that supplied the town, of Caddo was secured from the Tbxas Pacific Coal & Oil Company, and the undisputed proof on the trial showed that this was true, so that, on the whole, the issue of joint liability of the defendants in this case for the wrongs complained of was presented in the pleadings, and the disjunctive allegation of the petition upon which the general demurrer is founded was apparently ignored or lost sight of in the actual trial of the case. Under such circumstances,' the objection urged is theoretical and technical rather than iperitorious, and the alternative allegation may safely be disregarded. We accordingly adhere to the conclusion, originally announced, that the trial court did not commit reversible error in overruling appellant’s general demurrer.
Appellant further insists with great earnestness that—
“No proof was made of any physical fact, such as other fires, pipes bursting from gas pressure, and stove attachments b*'ug blown off or any other occurrences which would con*115stitute legitimate evidence of tlie excessive gas pressure.”
In tins connection, attention is called to wiiat is termed a misstatement of some of the facts in our original opinion. For instance, we refeired to testimony tending to show that there was such' a pressure of gas in the pipe lines of the Oaddo Gas Company as, in instances, “blew off petcocks on stoves of the inhabitants,” and “bursted pipe lines” in the city of Oaddo. The statement that petcocks had been blown off of stoves was brought about probably by what has been shown to us as an inadvertent misquotation in one of appellee’s original briefs. In this respect the testimony was rather to the effect that the gas pressure was such as to “raise the lids of stoves” and that, instead of pipe “lines” bursted, it should have been stated in the singular; that is, that at least one line had been bursted. But we have again carefully reviewed the testimony, and we think these . inaccuracies, if they are such, are immaterial. As indicated in our original opinion, we think the evidence certainly tended to show that just preceding the fire the gas pressure in the lines was very low; that it suddenly became sufficiently strong to move pipe lines and to have either bursted a pipe or some stove connection in the kitchen of appellee and thus cause the fire; that at least “one 2-inch nipple bursted and split open and roared; that at least one of the supply lines in the city was moved thereby as much as 6 inches;” that in one residence a witness noticed “a blaze flash up from the stove.” She said:
“It didn’t blow any connection off in her stove but it lifted the caps along. That was about the time we heard this shrieking (of pipes).”
Another witness testified that her son had gas in his house, and “it came on real strong and blew the caps of the stove.” Vet another witness testified that just before the fire they did not have any pressure in the line that could be used to advantage, and that they noticed the fumes of the gas and turned it on and found a lot more pressure than they had had.
“We had a long iron drum on the floor, and we turned it in that. It moved the barrel. That was about 5 minutes before the fire occurred.”
The facts insisted upon, that like occurrences in other residences in Caddo were not shown, may be accounted for on the theory that the gas would naturally be relieved, in a measure at least, by increased use by the inhabitants and by escape from the pipe or pipes shown to have bursted. It is true testimony in behalf of appellant tended strongly to show that there was no excessive pressure as evidenced by certain charts introduced by them, but these charts, if accepted as conclusive, would establish the fact that the pressure at the time of the fire was not greater than had been for several days prior thereto, and we think the testimony in behalf, of appellee, hereinbefore briefly referred to was sufficient to authorize the jury to draw a different conclusion. It is true that appellant’s superintendent, Mr. G. L. Rateliffe, while acknowledging that he had received complaints of insufficient gas at Caddo, stated that the additional gas received from the Veale well had been turned into their lines subsequent to the fire in question. But it appeared from his testimony that he was at the headquarters of the company, some distance from the town of Caddo, and that he himself did not turn the Veale well gas into the lines, but that an employee, one Holland, did this. Mr. Rateliffe testified:
“There were complaints by tbe people of Cad-do at times when gas was short. As I testified before, the people in Caddo were complaining about freezing, and we went to work on- the Veale well to turn it in. * * * I didn’t personally turn the gas into the lines; it was done under my orders. We haven’t any records that show exactly when a well is turned on. I don’t believe we have any record that shows just when the Veale well was turned in. The meter charts show it, but I haven’t got those here. * * * I am not certain about the record as to when that well was turned in. I didn’t look that up before I left the office. I didn’t even know I was coming until early this morning. All I remember is that it was after the fire. * * * A man by the name of Holland turned the Veale well into our main line. I have never talked to him about it. * * * There was a snow about that time I believe. After the snow we were working on the Veale well. I don’t think we worked on it before. We might have and might not. This cold spell I have reference to was when they were complaining that they were not getting gas in Cad-do.”
Under these circumstances, it is significant that appellant did not produce the meter charts mentioned nor explain the absence of the witness Holland. The jury doubtless drew the inference, as under a well-settled rule they would be authorized to do, that, had the meter charts been produced and the witness Holland required to testify, the testimony would have been unfavorable to appellant.
Without further discussion, we conclude that appellant’s motion for rehearing should be overruled.