Miller v. New York Oil Company

• Decision Date: 26 January 1926
• Docket Number: 1293
• Citation: 34 Wyo. 272,243 P. 118
• Parties: MILLER v. NEW YORK OIL COMPANY [*]
• Court: Wyoming Supreme Court

243 P. 118

34 Wyo. 272

MILLER v. NEW YORK OIL COMPANY ^[*]

No. 1293

Supreme Court of Wyoming

January 26, 1926

Rehearing Denied March 24th, 1926.

APPEAL from District Court, Natrona County; ROBERT R. ROSE, Judge.

Action by H. E. Miller against the New York Oil Company for negligence in the installation of gas fixtures. Judgment for plaintiff and defendant appeals.

Affirmed.

Winter & Winter for appellant.

The installation was made eight months prior to the death of Morton; it had been in constant and satisfactory use during that time, and appellant had received no notice of any defect. There was no obligation to make frequent inspection; Pernick vs. Gas Co., 170 N.Y.S. 245, and cases cited; only reasonable care on the part of the Company was required; Rockford Co. vs. Ernst, 68 Ill.App. 300; Smith vs. Co., 129 Mass. 318; Emerson vs. Co., 3 Allen (Mass.) 410; Siebercht vs. Co., 21 A.D 110; Hutchinson vs. Co., 122 Mass. 219; the rule as to liabilities of natural gas companies is the same as companies supplying artificial gas; Mississinewa Co. vs Patton, 129 Ind. 427; 22 R. C. L. 135; the test is as injuries anticipated and not such as may arise; Colo. Co. vs. Giscomini, L. R. A. 1915 364; Seith vs. Co., 24 L. R. A. N. S. 978; Cohn vs. May, 69 L. R. A. 800; the burden was on plaintiff to prove reasonable care after notice; Union Co. vs. Co. (Calif.) 141 P. 807; Murphy vs. Gas Co., 150 P. 581; Woodburn vs. Co., 174 S.W. 730; Holly vs. Co., 69 A. 233; Sipple vs. Co., 102 S.W. 608; Quase vs. Co., 170 N.W. 942; an explosion does not establish a prima facie case or create a presumption of negligence; Hotel Co. vs. Co., 223 S.W. 975; Washington Co. vs. Eckloff, 4 App. D. C. 174; Greed vs. Co., 86 A. 95; Torrans vs. Co., 115 S.W. 389; there was proof of notice of negligence; Littleton vs. Richardson, 66 A. D. 760; no presumption of negligence was obtained; Central of Ga. vs. Light Co., 71 S.E. 1076; Machine Co. vs. Bradley, 50 N.E. 464; Pfarr vs. Standard Oil Company, 146 N.W. 851; it was the duty of the owner of the building to report defects; Grey vs. Light Co., 19 A. R. 327; City vs. Ry. Co., 160 S.W. 771; Miller cannot recover for the result of his own misconduct; Doles vs. Ry. Co., 75 S.E. 722; Telephone & Telegraph Co. vs. Light Co., 179 S.W. 388; appellant was not in a worse case than that of the indemnitor; an indemnitor must be released from liability, if deprived of opportunity to obtain reversal of judgment for damages; Robb vs. Trust Co., 121 F. 460.

M. F. Ryan for respondent.

Where all necessary elements to warrant the findings and judgment are proven, plaintiff is entitled to recover, even though appellant had no notice of the original action, nor opportunity to defend; 14 R. C. L. 52-54; express notice to an indemnitor to defend a prior suit is unnecessary, if he knew the suit was pending and could have defended it; 14 R. C. L. 63; a promise of general indemnity is broken by the recovery of a judgment against the promisee, and he may maintain action on it without proof of the payment of judgment; Brooks vs. Macnuemara, (Md.) 1 Har. & McH. 80; Stroh vs. Kimmel, 8 Watts 157; Smith vs. C. N.W. Ry., 18 Wis. 17; a remedy over against indemnitor exists; Washington Co. vs. Dist. Columbia, 161 U.S. 316; Town vs. Woods, 57 Ind. 192; City of Chicago vs. Robbins, 67 U.S. 418; Gillilan vs. Nixon, 26 Ill. 50; the doctrine of contribution also applies; Owen vs. McGeehee, 61 Ala. 440; Chadler vs. Brainard, 14 Pick (Mass.) 285; by notice and opportunity to defend, the defendant was concluded in any subsequent litigation between the parties as to all questions determined in the first action; R. R. Co. vs. Co., 127 N.E. 532; under the facts proven here, plaintiff was entitled to recover without notice to New York Oil Company of the former action; Sweet vs. Atkinson, 182 N.W. 793; Pfau vs. Williamson, 63 Ill. 16; Gas Co. vs. Road Co., 41 N.E. 955; where indemnitors are obligated to defend and defense is tendered and refused, indemnitors are liable; Northern Co. vs. Jordan, 184 N.W. 39; Pixley vs. Gould, 13 Ill.App. 565, 569.

Winter & Winter in reply.

The court found that Miller was liable for negligence in the original case which renders the authorities cited by respondent inapplicable. Notice was necessary to fix any liability whatsoever upon appellant; Newcastle vs. Kurtz, 69 L. R. A. 492; conditions causing the accident were the result of Miller's negligence, and arose long after the installation, hence he should not recover; 9 Cyc. 807; Miller was not defending in the original suit against the act of another against whom he had a remedy over, but was a defendant for misfeasance of his own; Gray vs. Gaslight Co., 19 A. R. 327; Machine Company vs. Bradley et al., 50 N.E. 464.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

In April, 1921, the defendant and appellant, New York Oil Company, a corporation, engaged in furnishing natural gas to the inhabitants of Casper, installed a gas water-heater in a bathroom of an apartment house belonging to H. E. Miller, the plaintiff and respondent. On December 28, 1921, A. J. Morton, a tenant in the apartment house, came to his death while taking a bath in that room. A post mortem examination disclosed that Morton died from asphyxiation due to carbon dioxide, and the cause of death was not disputed. There is no reason to doubt that the poisonous gas inhaled by the deceased was caused by ordinary use of the gas water heater. Morton's administrator sued Miller, alleging that the intestate's death was caused by Miller's negligence. The charge of negligence in that action is contained in the following allegations of the petition:

"That the vent pipe to carry off the fumes (from the gas water heater) was connected with a stove pipe which was clogged up with soot, which prevented the fumes from escaping; that there was no provision made for supplying said bath room with fresh air and that said room was entirely without ventilation; that by reason of said improper installation of said gas heater, and by reason of the bath room not being ventilated, the oxygen was all consumed by said heater, and the said A. J. Morton, not knowing of the dangerous condition of said bath room, on the evening of December 28th, 1921, went to said bath room for the purpose of taking a bath and while so engaged came to his death from carbon dioxide poisoning and that the said H. E. Miller, well knew of the dangerous condition of said bath room.

"That notwithstanding the fact that prior to the 28th day of December, 1921, the dangerous condition of said bathroom was well known to the defendant H. E. Miller, he, the said defendant, failed and neglected to either put the same in a safe condition, or notify the deceased of said dangerous condition."

As early as the day following Morton's death the New York Oil Company had knowledge thereof, and investigated conditions at the scene of the fatality. When suit was being threatened by the administrator against Miller, and again after the suit was commenced, Miller conferred with the company's officers about the matter, but did not request that the company defend that action, nor offer to permit it to do so. The officers of the company suggested to Miller, however, that he employ the company's attorneys to defend the action. This he did after being introduced to those attorneys by a representative of the company. On the trial of that action the jury found for the administrator fixing the damages at $ 3750, and the verdict was followed by a judgment for that amount and costs. While steps were being taken to perfect a proceeding in error to have that judgment reviewed by this court, Miller paid the administrator $ 2500; the judgment was satisfied and released and the proceeding in error abandoned.

Thereafter Miller brought this action against the New York Oil Company for indemnity, claiming that Morton's death had been caused by defendant's negligence in installing the heater. He prayed judgment for the full amount of the judgment in the former suit, and $ 250 paid his attorneys in that suit. The present action was tried without a jury, and the court, finding separately its conclusions of fact and law, rendered judgment for plaintiff for $ 2500, the amount paid in satisfaction of the former judgment, and $ 250 attorneys' fees. The plaintiff's contention that he should have had judgment in this case for the full amount of the former judgment instead of only $ 2500, need not be considered, as he has not appealed.

The court's finding in this case on the issue of negligence is contained in the following excerpts from the findings of fact:

"That during the spring of 1921, the defendant, at the instance and request of plaintiff, did install in the bathroom of said apartments a certain gas water heating appliance; that no instructions were given by the plaintiff to the defendant as to the manner of the installation of said water heating appliance, other than that the same was to be installed in a safe manner, and particularly with due respect to the necessary ventilation of said bathroom; that the said water heating appliance was installed by said defendant in the bathroom of said apartments negligently and in such manner as to constitute a menace to the lives of persons using said bathroom, in this, that the said water heating appliance was installed therein without provision being made for the proper and necessary ventilation of said bathroom, and in this, that at the time of the installation of said water heating appliance in said bathroom the chimney, through which provision was made by defendant company to vent the fumes from said water heating appliance, was so clogged as not to permit the proper and necessary escape of the fumes...