718 FT. SMITH GAS Co. V. BLANKENSII1P. 1193 FORT SMITH GAS COMPANY V. BLANKENSHIP. 4-4543 Opinion delivered March 1, 1937. 1. EYIDBNCR—YERDICTS.—The•indulgence of inferences will not supply a non-existent fact; _and, to support a verdict, must arise from the facts established by the evidence; other inferences are pure speculation or conjecture. 2. DAMAGES— EVIpErveE.---In an action against a gas company to , recover damages allegedly sustained when appellant cut '''he supply of gas off from appei1 p e2,hniise causing, it was aliiged, a child to becorne sick, insufficient \ sup- • port . the 've d r ict, and that a verdict shou, been a eted • for dppellant. Appeal from Crawford Circuit Court •• Kincanz"?
.non, Judge; reVersed:. " Miles, Arnytrong Young,Tor appellant. B. E..11ough,.T. N. Taylor . and Fines F. Batchelor, for appellee. BAKER, J. This appeal is from a judgment in favor of Danny Hugh Blankenshiwa child 'five months old, in the . sum of $287.50 .for damages. * • It was alleged in the complaint that F. J. Reichart resided at 1001 south Eleventh street in Fort Smith and that his daughter, Mrs. Retha Blankenship, and her infant child, resided with him at that place. . On February 17, 1936, the gas company cut off or disconnected the gas from Reichart's home about 10:00 o'clock in the forenoon and did not reconnect or • turn on the : gas till about 2:00 o'clock in the afternoon. It was a very . cold, raw day with flurries ot snow. That part of the- complaint with wliich we are here concerned is as follows:
ARK.] FT. SMITH GAS CO. v. BLANKENSHIP. 719 "Thar by rea8:on of the gas being shut off from the home of F. J. Reichart in which Danny Hugh Blanken-ship at. the time was living and thereby leaving said house cold, damp and without any heat or warmth, whatsoever; and leaving no means of cooking or preparing said child's milk or food at 'a time when said child was sick and ill and his body inflamed with cold and fever, said child 'became violently ill . and his body-was chilled and made cold; thereby aggravating his present and already existing grave condition to the extent that same resulted in pneumonia, seriously and dangerously injuring said child in. , the sum of $2,000." • It was shown by . appellant, and not con • trov , erted' by appellee, that Reichart was in default in the payment of his gas bills. The January bill : was for $6.40 and this included forty-two cents unpaid On the December bill. This was not paid when due On -January 10.. The bill on FebruarY 10th was $7.07. On February 17, 1936,..there was still due on the January bill $1.84. 'Notice of the delinquency was sent to Reinhart on February 5. He says he "did not notice it." This notice advised : serVice would be 'discontinued for nonpayment , Mrs. Reichart testified 'she werked near the gas 'office and usually paid the bills. She went to . the office on .Feb-ruary 14 and proimised to paY , on the"15th. She in fact paid the balance due of $1.84 . on the . mornirig . Of the 17th. She is very liositive thia payment was' 'Made at 9 :15.. The daughter, who was at lome, says gas waS cut off at:10 There was .some dispUte about the exact time of the cut; ting off of the gas. • The jury'might well have .forind, and no doubt did determine,' that the gas waS diaconnected after the payment had been made. • • In this . connection, it is , pertinent toremark that F. J. Reichart sued for, $500 damages for, this alleged breach of duty, but recovered nothing. His,grandchild recovered $287.50. The difference . hetween, the two plaintiffs, as treated by the parties, was • the effect or resulting ;consequences of the : alleged wrongful discontinuancnof, service for a period of about or nearly four hours. :Reinhart was awa.y from home, but returned..about . 10 :45 ; the. house
720 FT. SMITH GAS CO. v. BLANKENSHIP. [193 was not cold; the baby was in bed. He (ReiChart) was there till the gas was reconnected. - But a much more elaborate story is told about little Danny Hugh. , His grandmother says he had been sick about a week before the 17th with "flu" and a cold. They called Dr. Southard about February 20. The doctor made one call and the child was carried to the doctor's office once or twice. Tbe child was sick about two-weeks. Mrs. Blankenship says the . gas was turned off about 10:25. She waited about thirty minutes for the man to return and restore the service. She wrapped up -the baby and put him in bed. The weather was cold that day and the child had a cold and was fretful; in a day or two-he got worse and was sick for about two weeks. Ile had proper nourishment; The child bad had "flu" for a week. She took him to a neighbor's about three. blocks away. "When I took -the child out it caused him to take bronchitis." She' wrapped himo up well because she didn't want . him to get any sicker than he was. • Tbe only other testimony was by Dr. Southard as follows : "Q..Doctor if a child left in a house without heat and when the temperature was aronnd 7- degrees . above and snow on the ground, would that case turn into bronchitis? A. Yes, sir." , • He made. . one call to see the child and about two weeks later , it was :brought to his .office. ° It was then improving. There was . . no bad after effect's, 8ronchitis is a common ° disease With babies. - It did not have °any other illness except bronchitis ; couldn't tell how long he had had it. It wasn't severe enough to go back. "Q. What , Other things. besides exposure would cause bronchitis? A. They just take it sometimes. Q. If the child had been left in an unheated house, that would not: have produced bronchitis, would it? A. No, sir. Q. That is, if she had been properly clothed? A. No; sir. "REDIRECT 'EXAMINATION "Children have colds'without taking bronchitis. • "Q. If a child wa g left in an unheated house when it was 7 degrees above and would have to be Carried in the snow, would that have caused itt A. I. couldn't say what caused it. If the child'had been left in' a creek that
ARK.] • FT. SMITH GAS ,CO. v.. BLANKENSHIP. 721 might . cause it and' might. not. Q.• From your. observation of this case, is that what caused it? A. I couldn't 'say, I couldn't say about that a..s to what caused it. Q. , Does exposure always cause .it ? A. No, sir. IinproPer nourishment and rickets also cause, bronchitis. I didn't see anything froth -my visit to shoW that the- child was undernourished. Q. What is something that Would cause it?' A. I-didn't say anything in general that . would causea to ta:ke it; nothing only. exposure. Q. You do• say •that that is the cause? . A. I•couldn't say that ; I only saw it once.". We have set out in detail this testimony; and without extended comment suggest that .the jury. could . not . determine that the discontinuance of the gas service caused. this illness or aggravated. it. Abont thirty minutes after the gas was cut off the child was wrapped up and carried to the neighbor's home. The mother urges this excursion outside caused the trouble. The doctor did not agree to this theory.. -In fact, he did-not know the cause of the trouble. We have been taught to defer to the physician in a matter so peculiarly within*his realm, and so far outside of the COTRITIOR or . ordinary knowledge.'of the laity. He was better prepar . ed . t . o . under . stand . ., . How did the, jury reach- its .verdict? Certainly-not from a consideration of what . Dr. 'Southard said. The gas was discennected when the 'child was sick, the house began to get cold, the mother then wrapped up the baby and took it to another hoMe. A day or,two la-WI ...the Child grew worSe,. afflicted .with a disease common to children and which they. take without apparent cause... We-cannot understand how the jury can be more 'certain . than'the 'doctor, The indulgence of inferences not supply A nonexistent fact. Inferenees to slippOrt 'a Verdiet . arie Of facts established bY . evidence. Other inferenCea,.are purely speculative, or maybe guesswork„ or conjecture. This method of dealing with the' rights of- partiesbas been condemned by many decisions.. Staiidard Pipe Li48 C. V. Burnett, 188 Ark. 491, 66 S.W. ,(2d) 637; St. Louis, I: M. & S. Ry. Co. y. Hempfling, 107 Ark. 476, 156. ; Denton v. Mammoth Sp;ing E„L. & .P..Co, 10,5 Ark: 161, 150 S. W. 572; Rt. Smith Light .& Traction Co. v. Cooper,
722 [193 170 Ark. 286, 280 . S. W. 990 ; Turner v. Hot Springs Street Ry. Co., 189 Ark-894, 75 S. W. (2d) 675; Lewis v. Jack-son,191 Ark..102, 83 S. W. (2d) 69. • A consideration of the sound principles announced in the above-cited cases and • of many other similar authorities impels us to hold the court erred in failing to direct a verdict for the defendant upon this Matter. We pretermit a discussion of the alleged negligence of the appellant and reasonable regulations in the con-. duct of its business for the reason it has not been made to appear that evil consequence resulted therefrom.: The case has been fully developed ; tberefore, for the error indicated, it twill be reversed . and dismissed. * HUMPHREYS and MEHAFFY, M., dissent.
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