Nyberg v. Montgomery Ward & Co., No. 453.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Citation125 F. Supp. 116
Decision Date12 August 1954
PartiesEmily NYBERG, Plaintiff, v. MONTGOMERY WARD & CO., a corporation admitted to do business in the State of Michigan, Defendant.
Docket NumberNo. 453.

125 F. Supp. 116

Emily NYBERG, Plaintiff,
v.
MONTGOMERY WARD & CO., a corporation admitted to do business in the State of Michigan, Defendant.

No. 453.

United States District Court W. D. Michigan, N. D.

February 4, 1954.

Motion to Vacate Denied August 12, 1954.


Doyle & Doyle and Thurman B. Doyle, Menominee, Mich., for plaintiff.

Barstow & Barstow and George Barstow and Steven G. Barstow, Menominee, Mich., and John A. Barr, Chicago, Ill., for defendant.

Motion to Vacate Denied August 12, 1954. See 123 F.Supp. 599.

STARR, District Judge.

This action was begun by the plaintiff, a resident and citizen of Michigan, in the circuit court of Menominee county, Michigan, against the defendant, an Illinois corporation, to recover damages for her personal injuries which she claims resulted from defendant's negligence in the disconnecting of a hot-water tank from a cook stove in her home. The action was removed to this court on the basis of the diversity of citizenship of the parties, 28 U.S.C. § 1441 et seq., and was tried before the court without a jury.

The plaintiff Emily Nyberg and her husband, Clifford Nyberg, lived in Menominee, Michigan. The cook stove in the kitchen of their home was a combination wood-coal-and-gas-burning stove equipped with a hot-water jacket and with a coil in the fire box, and as the water was heated, it was conveyed into a 30-gallon tank located behind the stove. The defendant owned and operated a general department store in Menominee, which included among its many departments a plumbing and heating department. Richard Vander Sluis was general manager of the defendant's store and Frank Schreiner was manager of the plumbing and heating department. The defendant company employed one William McVane as an independent contractor to install furnaces which it sold.

About November 14, 1950, plaintiff's husband, Clifford Nyberg, through Vander Sluis and Schreiner, entered into a contract with the defendant company for the purchase of a warm air furnace to be installed in his home, at a price of $780. The defendant arranged with McVane to install the furnace, and its contract price of $780 included $620 for the furnace and $160 as McVane's charge for installation. McVane began installing the furnace in plaintiff's home in November,

125 F. Supp. 117
1950, and the installation was substantially completed by about December 14th. The next day, December 15th, McVane disconnected the pipes leading from the water jacket in the cook stove to the water tank behind the stove, and moved the tank into the basement. When he disconnected the pipes on the water jacket, he closed the ends of the pipes by placing caps over them, and he neglected to leave a vent or opening in the caps or jacket whereby steam pressure developing in the water jacket could escape. He obviously failed to ascertain if there was any water or moisture remaining in the water jacket before he capped and closed the connecting pipes. During the afternoon of the 15th the plaintiff built a fire in the cook stove to prepare the evening meal, and when water or moisture remaining in the water jacket became heated, with no vent or means for steam to escape, a terrific explosion occurred. Fragments of metal were blown about the kitchen with great force, and plaintiff was severely injured, requiring medical care and hospitalization. The parties by their attorneys have filed a written stipulation of facts relative to McVane's disconnecting the water jacket and the resulting explosion. This stipulation states in part
"That at the time of the injuries complained of, the water jacket in the stove in the Nyberg home was disconnected by one William McVane; that in disconnecting the water jacket, the openings in the jacket were all closed by McVane without venting the jacket to the atmosphere; that some water or moisture remained in the jacket; that when heated, such water or moisture caused said jacket to become subject to dangerously excessive internal pressure; that as a result thereof, the jacket exploded, causing the jacket and stove to explode, and caused iron fragments from the jacket and stove to be violently precipitated from out of the stove."

In her complaint the plaintiff alleges that the explosion and her injuries and resulting damages were caused by the negligence of McVane, acting as defendant's agent and employee, in disconnecting the hot-water tank from the water jacket in the stove and closing and capping the pipes leading from the jacket, without providing a vent or opening for steam to escape. In its answer defendant denies that McVane was acting as its agent or employee, and denies all liability to plaintiff.

McVane's negligence in closing and capping the water jacket without leaving an opening or vent for steam to escape is too obvious to require discussion. The real question in this case is whether McVane, in disconnecting and capping the pipes leading from the water jacket, was acting as the agent or employee of the defendant, or as the agent or employee of plaintiff's husband. The testimony bearing on this point is conflicting and unsatisfactory. The plaintiff contends that when the installation of the furnace was substantially completed, an interview took place in the basement of their home between her husband and Schreiner, manager of the defendant's plumbing and heating department, and contractor McVane, and that in this interview it was arranged as follows: That a water heater would be purchased from defendant company and installed in the basement near the furnace; that the hot-water tank in the kitchen would be disconnected from the water jacket in the cook stove and moved into the basement; and that the tank would then be connected with a coil in the furnace and with the water heater to be purchased. Schreiner denies there was any conversation relative to the purchase and installation of a new water heater. McVane and Schreiner both contend that Nyberg personally arranged for McVane to disconnect the water...

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2 practice notes
  • Nyberg v. Montgomery Ward & Co., No. 453.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • August 12, 1954
    ...28 U.S.C.A. § 1441 et seq., and was tried before the court without a jury. On February 4, 1954, the court filed a written opinion, 125 F.Supp. 116 holding that defendant was entitled to a judgment of no cause of action, and on that date judgment was accordingly entered in its Plaintiff did ......
  • Nyberg v. MONTGOMERY WARD & COMPANY, No. 12340.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 28, 1955
    ...the parties, for the reasons given by the District Judge in his written opinion; It Is Ordered that the judgment of the District Court, 125 F.Supp. 116, be...
2 cases
  • Nyberg v. Montgomery Ward & Co., No. 453.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • August 12, 1954
    ...28 U.S.C.A. § 1441 et seq., and was tried before the court without a jury. On February 4, 1954, the court filed a written opinion, 125 F.Supp. 116 holding that defendant was entitled to a judgment of no cause of action, and on that date judgment was accordingly entered in its Plaintiff did ......
  • Nyberg v. MONTGOMERY WARD & COMPANY, No. 12340.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 28, 1955
    ...the parties, for the reasons given by the District Judge in his written opinion; It Is Ordered that the judgment of the District Court, 125 F.Supp. 116, be...

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