Delisa v. Artur F. Schmidt, Inc.
| Decision Date | 24 April 1941 |
| Citation | 285 N.Y. 314,34 N.E.2d 336 |
| Parties | DELISA et al. v. ARTUR F. SCHMIDT, Inc., et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Action by Gayton Delisa, an infant, by Michael Delisa, his guardian ad litem, and another against Arthur F. Schmidt, Inc., and Warren Norge Company, Inc., for personal injuries suffered by infant plaintiff when a refrigerating coil and tank unit exploded. From a judgment, 260 App.Div. 807, 22 N.Y.S.2d 927, of the Southern Division of the Supreme Court, in the Second judicial department, entered on July 8, 1940, unanimously affirming the judgment, 259 App.Div. 1033,21 N.Y.S.2d 505, in favor of Warren Norge Company, Inc., entered upon the dismissal of the complaint, and against such defendant by the court at the Trial Term at the close of plaintiff's case, the plaintiffs, by permission, appeal.
Judgment so far as appealed from reversed and new trial granted. Frank L. Tyson and I. Sidney Worthman, both of New York City, for appellants.
Edward M. Fuller and Daniel Mungall, both of New York City, for respondent.
The action is for damages for personal injuries suffered by the infant plaintiff when a refrigerating coil and tank unit, containing sulphur dioxide, exploded. The unit had been purchased by the plaintiff parent as junk from the defendant Arthur F. Schmidt, Inc. It was one of three ‘Frigidaire’ units that had been removed from the Hotel Henri at Lynbrook, N. Y., by defendant Arthur F. Schmidt, Inc., to make way for the installation of a new Norge refrigerating unit. Defendant Warren
Norge Co., Inc., was the distributor from whom Schmidt, Inc., had purchased the new Norge unit. Two of defendant Norge's employees, a commercial installation supervisor and a service man, together with two employees of the Schmidt Company, had removed the old Frigidaire units and installed the new Norge unit. The employees of the defendant Norge knew at the time that sulphur dioxide was used in the Frigidaire units as a cooling substance or refrigerant and that sulphur dioxide, when confined and exposed to heat, would explode, and that the gas so released would imperil human life. Before removing the units they made sure that this refrigerant was pumped back into the tank of each unit. They did not remove this sulphur dioxide after the units were dismantled but allowed it to remain sealed in the tanks. Defendant Schmidt had the units removed to a fenced yard where the unit, which afterwards exploded injuring the infant plaintiff, remained for over a year until sold to the infant's father as junk.
By its answer the defendant Norge ‘Admits that prior to December 22, 1936, to wit, on December 21, 1935, its agents, servants and/or employees assisted the agents, servants and/or employees of another in dismantling certain portions of a certain refrigerating outfit in the Herni Hotel.’ An officer of Schmidt, Inc., testified that during part of the dismantling operation he was at the hotel and saw one of defendant Norge's employees remove one of the Frigidaire units, that he gave no orders to the employees of defendant Norge, that the employees of Schmidt, Inc., were not in charge of the dismantling operation, that he did not hear either of the employees of the defendant Norge give any orders, that he did not ask Mr. Wallace, the service manager of Warren Norge Corporation, for help in installing the new Norge refrigerator, that he requested Warren Norge Company, Inc., to install the refrigerator, and that he had had a conversation with Mr. Wallace with reference to the dismantling of the old Frigidaire plant in the Henri Hotel. The judge refused to permit the witness to relate the conversation on the ground that there was no evidence that Mr. Wallace, the service manager of defendant Norge, had authority to bind ‘his company with regard to the dismantling of an old plant which was not a Norge plant.’ Mr. Wallace was the supervisor of the employees of the defendant Norge sent to the Henri Hotel, and he sent them there ‘in connection with the assisting of dismantling of the refrigerating unit.’ The defendant Norge paid its employees for their work in removing the old unit and installing the new one.
The trial court after consultation with counsel for plaintiff and for the defendant Norge, dismissed the complaint as against the defendant Norge, and declared a mistrial as against the defendant Schmidt. At this stage of the proceeding plaintiff had yet to introduce any proof of the manner in which the accident happened, the damage to plaintiffs, and the infant plaintiff's freedom from negligence. The case has been treated by counsel for the respective parties and the courts below as if such proof had been introduced. Further, it was stipulated that the record be deemed to be amended to show ‘that this infant plaintiff sustained injuries when the...
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