McDonnell v. Montgomery Ward & Co., 1090

• Decision Date: 01 September 1959
• Docket Number: No. 1090,1090
• Citation: 154 A.2d 469,121 Vt. 221,80 A.L.R.2d 590
• Court: Vermont Supreme Court
• Parties: , 80 A.L.R.2d 590 Dolores McDONNELL by her next friend Kenneth McDonnell v. MONTGOMERY WARD & COMPANY, Inc.

Page 469

154 A.2d 469

121 Vt. 221, 80 A.L.R.2d 590

Dolores McDONNELL by her next friend Kenneth McDonnell v. MONTGOMERY WARD & COMPANY, Inc.

No. 1090.

Supreme Court of Vermont.

Sept. 1, 1959.

Bloomer & Bloomer, Rutland, for plaintiff.

Lawrence C. Jones, Rutland, for defendant.

Before HULBURD, C. J., HOLDEN, SHANGRAW and BARNEY, JJ., and DIVOLL, Superior Judge.

HOLDEN, Justice.

The plaintiff was burned by a burst of exploding fuel gas while she was attempting to light the oven of a cooking range. The plaintiff's husband, Kenneth McDonnell, had purchased the appliance, referred to as a Ward's Gas Range, from the defendant a short time before his marriage to the plaintiff. The stove was delivered to the McDonnell home on August 2, 1956.

The plaintiff's husband engaged the Rutland County Gas Company to install the stove and supply it with fuel. On August 6, 1956, William Fredette, a service representative of the Rutland County Gas Company installed the stove and connected it with a cylinder of bottled gas that he located outside the McDonnell home, a distance of some forty feet from the range. The fuel provided was a liquid petroleum product, bottled and contained in a cylinder under pressure. The fuel is transformed into a gas when released from its cylinder. The fuel gas is volatile, inflammable, and dangerous, unless properly confined. Fredette was called as a witness for the plaintiff and testified to the installation of the stove and the connection of the appliance to the gas supply. Connection was made by use of copper tubing. After his installation, the system was checked for fuel leaks and none was found.

The witness described the operation of the oven unit. Gas supply is furnished the oven burner through a line that passes through an orifice to provide for the mixing of petroleum with air. Oven heat is provided by igniting this mixture at the base of the oven burner. The flow of gas to the burner and the oven temperature are controlled by a single regulating device which is operated manually by setting a graduated dial. When the dial is set at a given oven temperature it simultaneously opens the gas jet. The burner initially burns at high flame. When the oven temperature reaches the temperature indicated by the dial setting the high flame is automatically reduced to a low flame by operation of a thermostat control that is sealed within the panels of the oven compartment.

On the day of the installation, Fredette ignited the oven burner. He set the heat control dial at a temperature setting and awaited the burner to proceed from high flame to the minimum fire. He made an adjustment of two screws to reduce the intensity of the low flame. The witness testified that he 'set the pilot high'. He made no attempt to adjust the sealed thermostat. He testified that after the required adjustments, all units of the range functioned properly.

The oven burner is equipped with a safety stand-by pilot light that is designed to ignite simultaneously with the oven burner. The pilot is extinguished when the gas supply to the oven is cut off. The purpose of the pilot light is to provide a constant flame while gas is supplied to the oven burner, to re-ignite the oven burner in the event the burner flame, at either high or low fire, should become extinguished. The evidence is undisputed that the sealed thermostat unit has no effect on the operation of the safety pilot. Compare, Lewis v. Vermont Gas Corp., 121 Vt. 168, 151 A.2d 297, 301.

The plaintiff had used the surface burners of the stove prior to the day of the accident, August 19, 1956. On that day she undertook to light the oven burner for the first time, to do some baking. The plaintiff testified in response to a general question, that she followed the printed instructions furnished with the range at the first lighting. The burner ignited. Later, she discovered that the oven burner was out. She turned the gas off by the dial control and permitted the oven door to remain open to allow the gas fumes to escape.

The plaintiff's direct testimony continues:--'I worked around the kitchen and did a few things. Then I went back fifteen or twenty minutes later and then I turned the number of the dial there and had the match lit again and then I turned the gas on and when I had the match down there where I lit it and I got it even close to where it would light it blew right off.' The plaintiff was burned by the flames produced in this flash explosion.

The instructions furnished by the defendant with the stove were received without objection as Defendant's exhibit A. In the exhibit this instruction appears, 'Caution: when lighting oven, hold lighted match over oven lighting hole before turning on gas. If gas is turned on first, a gas pocket can form which will cause a flareback.'

After the plaintiff's injury, her husband Kenneth McDonnell complained to the defendant of the incident. In response to this communication, the defendant's service department manager in Rutland, Warren Hilliard, visited the McDonnell home, and later inspected the gas range. Mr. McDonnell was permitted to testify that Hilliard told him that he found a defective thermostat in the course of the inspection of the stove at the McDonnell home. This evidence was directly denied by Hilliard but for the purpose of this appeal we are bound to treat it in the light most favorable to the plaintiff. O'Brien v. Dewey, 120 Vt. 340, 346, 143 A.2d 130.

At Mr. McDonnell's request, the defendant removed the gas range from the plaintiff's home and replaced it by installing an electric range. The plaintiff's husband was allowed full credit of the purchase price of the gas stove in the exchange.

On these facts, and over the defendant's exception to the court's refusal to direct a verdict for the defendant, the cause was submitted to the jury on the application of the doctrine of res ipsa loquitur. From a verdict and judgment in favor of the plaintiff the defendant brings this appeal.

The defendant contends there was error in the reception of the evidence given by Mr. McDonnell that the defendant's service representative Hilliard stated he found the thermostat to be defective. This evidence was first admitted over the objection of counsel for the defendant that the declarant had not been adequately identified. Later the defendant moved to strike the testimony on the ground that the service representative Hilliard had no authority to make any admission or declaration that would be binding on the defendant. The trial court denied the motion to strike and permitted the evidence to stand.

The record discloses that it was Hilliard's duty, in his employment by the defendant, to entertain and investigate complaints concerning equipment and appliances merchandised by the defendant in the Rutland area. It was a part of his work to inspect this appliance and ascertain what, if anything, was wrong with the range. It appears that he visited the plaintiff's home for this purpose. Upon this factual foundation, there was adequate justification for the preliminary rulings of the court to the effect that the evidence was proper for the jury to consider. The statement, if made, was within the apparent range of the authority entrusted to the service representative by the defendant. The force and ultimate effect of the declaration was for the jury to determine. Fournier v. Burby, 121 Vt. 88, 148 A.2d 362, 364; Gilfillan v. Gilfillan's Estate, 90 Vt. 94, 100, 96 A. 704.

The declaration of the defendant's representative that the thermostat in the gas range was defective affords the only testimonial evidence that bears on the defendant's neglect. No other evidence of want of care by the defendant has been indicated in the briefs and we have found none. The defendant resisted the application of res ipsa loquitur and moved for a directed verdict of no liability on the ground that no actionable negligence had been demonstrated. Whether the doctrine was properly invoked presents the main and controlling question of this review.

The fundamental rule that he who complains of negligence must prove it, is sometimes satisfied by mere proof of the fortuitous event which inflicted injury on the claimant. The law recognizes that in certain situations and circumstances, an inference of culpable negligence is justified without further search or proof of the precise act of omission or commission involved. The event itself is said to speak of negligence. This method of proof rests on common experience rather than testimonial evidence. When the doctrine is properly invoked, it amounts to a preliminary ruling by the court that the physical causes of the kind which produced the particular injury under investigation do not ordinarily exist in the absence of negligence. "Res ipsa loquitur' is the phrase appealed to as symbolizing the argument for such a presumption.' 9 Wigmore, Evidence, 3rd Ed., § 2509, p. 377; 2 Harper & James, The Law of Torts, § 19.5, p. 1075; Pollock, The Law of Torts, 13th Ed., p. 463.

The doctrine and its application have been recognized in early cases in this Court. But the area in which this method of proof satisfies the test of actionable negligence has been restricted by definite limitations. It is the requirement of our decisions that the evidence must manifest: 1. A legal duty owing from the...