American Employers' Ins. Co. v. Gulf States Utilities Co.
| Decision Date | 19 November 1941 |
| Docket Number | 2310. |
| Citation | 4 So.2d 628 |
| Parties | AMERICAN EMPLOYERS' INS. CO. v. GULF STATES UTILITIES CO. |
| Court | Court of Appeal of Louisiana — District of US |
Taylor Porter, Brooks & Fuller, of Baton Rouge, for appellant.
Albritton & Ware, of Baton Rouge, for appellee.
On May 5 1939, in the suit of Miss Alder McGuire v. The Dalton Company, Inc., et al., a judgment was rendered by the District Court of East Baton Rouge Parish in favor of Miss McGuire and against the said Dalton Company, Inc., and the other defendant, the Gulf States Utilities Co., in solido, in the sum of $4421.70, with interest and costs. The judgment was based on a claim by Miss McGuire for personal injuries which she sustained by reason of the explosion of a gas stove which had been purchased by her father from the Dalton Company and which had been installed by the Utilities Company for the Dalton Company under a contract between the two companies by which the Utilities Company had agreed for a certain price to install and adjust the gas ranges sold by the Dalton Company to its customers. An appeal was taken to this court and the judgment was amended by reducing the amount of the award to the sum of $2,921.70 and otherwise affirmed. See McGuire v. Dalton Co., 191 So. 168, 173.
The contract for the installation of its gas ranges was made by the Dalton Company with the Baton Rouge Electric Company, but the Gulf States Utilities Company later succeeded to all the rights and obligations of the said Electric Company and a reference to the Utilities Company in this opinion will also serve as a reference to the Electric Company insofar as it might be affected. On February 17, 1940, the plaintiff in the present suit, American Employers' Insurance Company, as the insurer of the Dalton Company, paid one half of said judgment, interest and costs, and the Utilities Company paid the other half of said judgment, each paying the sum of $1756.97. The plaintiff herein, as the subrogee of the Dalton Company, has brought this suit against the Utilities Company to recover the amount paid by it for the Dalton Company on the ground that the injuries sustained by Miss McGuire were caused by the negligence of the employees of the Utilities Company and without any fault or negligence on the part of the Dalton Company. As the plaintiff in this suit stands in the same position with reference to the Utilities Company as does the Dalton Company, the case will be discussed as though the Dalton Company were the plaintiff seeking to recover the amount paid by it under a judgment condemning it and the Utilities Company in solido for the injuries suffered by Miss McGuire.
It might be noted here that the plaintiff in the present suit only sued for one half the principal of said judgment plus attorneys' fees of $500 incurred in the McGuire suit, and the trial court first rendered a judgment in favor of the plaintiff and against the Utilities Company for one half the principal of the judgment and denied attorneys' fees. Before the judgment was signed, however, an application for a rehearing was filed by the plaintiff setting up that it had paid one half of said judgment, including interest and costs and that the Utilities Company had admitted this payment, and asked that a rehearing be granted and that judgment be rendered in its favor and against the defendant for the full amount paid by it without any reference to attorneys' fees. The rehearing was granted and a judgment was rendered in favor of plaintiff and against the defendant for the said sum of $1756.97. Therefore the question of attorneys' fees has passed out of the case. The defendant has appealed.
While two exceptions were filed by the defendant and overruled by the court, it is unnecessary to discuss these exceptions as the question presented on the merits is the same as that presented by the exceptions, and a decision on the merits will cover the same legal points raised by the exceptions.
The injury sustained by Miss McGuire for which the award was made against both of the companies in solido was caused, as was found by both the district court and this court, by the improper and negligent installation of the gas stove by the employees of the Utilities Company in that a shutter which controlled the mixture of air and gas going into the burner which Miss McGuire was attempting to light when the explosion occurred was improperly adjusted. In commenting on the testimony of one of the witnesses for the Utilities Company in that case and in fixing the responsibility for the explosion of the gas stove, this court said:
It is obvious that this court found that the proximate cause of the injuries to Miss McGuire was the negligence of the employees of the Utilities Company in adjusting the gas range which this company installed for the Dalton Company under a contract with the latter company. The testimony in the McGuire suit (the record in that suit being a part of the record in this suit) shows that the installation and adjustment of the gas stoves sold by the Dalton Company was entrusted by this company entirely to the Utilities Company. While a claim was made in the McGuire suit that the Dalton Company was negligent in failing to keep a proper check on the work done for it by the Utilities Company and because of a failure on the part of the Dalton Company to report to the Utilities Company a complaint alleged to have been made by Mr. McGuire with reference to some defect in the operation of the stove, yet the Dalton Company was not condemned by the district court nor by this court for any negligence on its part, but was held liable to Miss McGuire because of...
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