Detroit City Gas Co. v. Syme

• Decision Date: 06 February 1940
• Docket Number: 8073.,No. 8072,8072
• Citation: 109 F.2d 366
• Parties: DETROIT CITY GAS CO. et al. v. SYME.
• Court: U.S. Court of Appeals — Sixth Circuit

109 F.2d 366 (1940)

DETROIT CITY GAS CO. et al. v. SYME.

Nos. 8072, 8073.

Circuit Court of Appeals, Sixth Circuit.

February 6, 1940.

Walter Meek, of Detroit, Mich. (Angell, Turner, Dyer & Meek, of Detroit, Mich., on the brief), for appellant Detroit City Gas Co.

Fred H. Aldrich, of Detroit, Mich. (Fred H. Aldrich and Kenneth W. Smith, both of Detroit, Mich., on the brief), for appellant Joseph P. Smith, Sr.

Leo J. Carrigan, of Detroit, Mich. (Frederick, Comb & Wolff and Leo J. Carrigan, all of Detroit, Mich., on the brief), for appellee Janet Syme.

Before HICKS, SIMONS, and ARANT, Circuit Judges.

SIMONS, Circuit Judge.

In a tort action against the appellants as defendants wherein the declaration alleged both a joint and several liability to the appellee for the death of the decedent, the jury returned the following verdict: "We find both defendants negligent and liable to the plaintiff in the sum of $10,000 (or $5,000 each)."

The judgment entered by the court was in the amount of $10,000 against both defendants, and a motion to set it aside as not in accordance with and supported by the verdict, was denied. For this and other assigned errors, each of the defendants brings a separate appeal.

The death of the decedent was due to carbon monoxide poisoning caused by fumes from a gas burning water heater in the bathroom of his home. The appellant Smith is the owner of the premises wherein the deceased died, the gas company furnished the gas supplied to the water heater and made some adjustment to the heater shortly before the date of death. The deceased was not a tenant, but lived with his sister and brother-in-law who rented the dwelling from Smith. On December 31, 1935, he lighted the gas burner in the bathroom on the first floor of the home, and when the water was sufficiently heated, entered the room and closed the door. Some 15 or 20 minutes later his father, receiving no response, broke down the door and found him on the floor. He was still alive, though there is dispute as to whether he was conscious. First aid administered by a physician and the pulmotor squad of the Fire Department failed to revive him and some 45 minutes later he was declared dead. That the death resulted from carbon monoxide poisoning is not disputed and the action was brought under the Michigan Survival Act. Comp.Laws Mich. § 14040 et seq.

In support of the alleged negligence of the owner of the premises, there is evidence that the vent flue from the gas heater passed through the ceiling of the bathroom and terminated in an enclosed attic, in violation of the Ordinances of the City of Detroit, which require that all such gas heaters be equipped with flues to carry exhaust gases out of doors, and there is evidence that immediately after the accident the flue pipe was found clogged with rust or dirt. Supporting the claim of negligence by the gas company, there is evidence that its serviceman made adjustments to the burner of the heater three days prior to the death, and that following such adjustments there was an odor in the bathroom when the heater was burning, from which the occupants of the dwelling suffered headaches and became easily tired when in and around the room. Neither defendant had knowledge of or suspected that the flue pipe was clogged or that it discharged into the attic rather than out of doors. The medical testimony was to the effect that carbon monoxide gas, when breathed into the lungs, forms a chemical combination with the red corpuscles of the blood preventing them from carrying the required amount of oxygen to other parts of the body.

We consider the evidence bearing upon the negligence of each of the defendants as substantial, requiring submission of an issue as to the liability of each to the jury, and sustaining a finding of negligence on the part of either or both bearing a causal relation to the accident. It has been said too often to require citation, that this court will not pass upon the weight of evidence, determine its preponderance or the credibility of witnesses, or otherwise invade the province of the jury. We attach no significance to the fact that the deceased was not a tenant, but a mere licensee. The suit was one sounding in tort requiring no contractual relationship to support recovery. The City Ordinances impose upon the owner of property a specific duty, and if failure to perform it is the proximate cause of the accident, he may be held to account. Annis v. Britton, 232 Mich. 291, 205 N.W. 128. The gas company was under obligation to use reasonable care in the adjustment of the heater and is liable for all reasonably expectable consequences proximately flowing from a breach of such obligation. Nor do we find error in the submission of the cause to the jury under the Survival Act. It is the law of Michigan that if the death be not instantaneous there may be recovery under the statute. Wood v. Standard Drug Company, 190 Mich. 654, 157 N.W. 403. There was no question of fact upon this issue to submit to the jury.

The important question in the case, as we view it, is whether the judgment responds to the verdict. Upon it we are bound by state law. Glenn v. Sumner, 132 U.S. 152, 10 S.Ct. 41, 33 L.Ed. 301; Knight v. Illinois Central Ry. Co., 6 Cir., 180 F. 368. In Rathbone v. Detroit United Ry., 187 Mich. 586, 154 N.W. 143, there was a verdict not substantially dissimilar, being: "Verdict for plaintiff, $10,000 — against the Detroit United Ry., $6,000; against Good Roads Construction Company, $4,000." The judgment was...