Pure Gas & Chemical Co. v. Cook

• Decision Date: 02 October 1974
• Docket Number: No. 4312,4312
• Citation: 526 P.2d 986
• Parties: PURE GAS AND CHEMICAL COMPANY, Appellant (Defendant below), Leonard Timmermeyer, d/b/a Timmermeyer Oil Company, and Clover Sturlin,(Defendants below), v. Thelma Jean COOK, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 986

526 P.2d 986

PURE GAS AND CHEMICAL COMPANY, Appellant (Defendant below) Leonard Timmermeyer, d/b/a Timmermeyer Oil Company, and Clover Sturlin,(Defendants below), v. Thelma Jean COOK, Appellee (Plaintiff below).

No. 4312.

Supreme Court of Wyoming.

Oct. 2, 1974.

R. R. Bostwick, Murane, Bostwick, McDaniel & Scott, Casper, for appellant.

Robert B. Ranck, Ranck & Bommer, Jackson, Murphy, Robinson, Heckathorn & Phillips, Kalispell, Mont., for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE and McCLINTOCK, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

This is an appeal by Pure Gas and Chemical Company from a joint and several judgment in the sum of $60,000 for injuries suffered by plaintiff in an explosion and entered against it and Clover Sturlin, who does not appeal.

Plaintiff and her then husband leased an apartment in Jackson from Sturlin and began occupancy of these premises on or about November 1, 1965. At the time they moved into these premises they contained a water heater, space heater, and cooking stove, which were supplied propane gas from two upright bottles. Because these bottles did not hold a sufficient supply, plaintiff's husband made arrangements with defendant Pure Gas for the installation of a larger tank which was installed and connected to the fixtures, bringing the gas from the larger tank into these appliances. This was done November 22, 1965. At the At the time of the explosion Leonard Timmermeyer was filling a gasoline tank from his truck which supplied a pump on the Sturlin premises. This tank and the pipe used to fill it were located under or near the front proch of the Sturlin apartment. Timmermeyer immediately withdrew the hose from a filler pipe, rolled it up, and moved the truck a short distance. He then returned to help get plaintiff out of the wreckage. There was little fire damage associated with this explosion.

time of lighting the pilot lights plaintiff inquired of the workman if the odor of gas would go away and was assured it would disappear in a short while. However, this odor persisted until the time of the explosion, although it was at times not noticeable to one who had remained in the apartment but again would be noticed when one re-entered the apartment. There is a conflict in the evidence but it may be concluded that complaint and notice of this condition was made to both defendants. On the day of this explosion Mrs. Anderson, who visited the premises about 11 o'clock, noticed the strong odor of gas. Later that afternoon-probably just a few minutes before 4 o'clock-as plaintiff was preparing to leave with her little girl and was near the front door the floor lifted up, a patch of light went across the room, the window was broken, and she heard a loud sound. She remembers very little but a short time later heard the child crying and found there were boards lying on her. She was taken to the hospital and treated for injuries.

The principal question which the jury had to resolve in this case was the cause of the explosion and from which source came the explosive fumes.

VERDICT OF THE JURY AND JUDGMENT

The jury returned a verdict in the following form:

'We, the jury, duly impaneled and sworn to try the issues in this cause render our verdict as follows:

'(1) We find in favor of the plaintiff, Thelma Jean Aakre, and against the following named defendant(s):

'Pure Gas and Chemical Company 60,000.00

'Clover Sturlin: 50,000.00

'and we assess plaintiffs damages in the sum of '$65,000.00

'(2) We find against the plaintiff, Thelma Jean Aakre, and in favor of the following named defendant(s):

'Leonard Timmermeyer, doing business as Timmermeyer Oil Co.

'(Signed) Joseph L. May

(Foreman) (Forewoman)'

Appellant asserts that the court erred in receiving this verdict and in its failure to resubmit this verdict to the jury for correction, relying upon § 1-132, W.S.1957, asserting this statute makes such action mandatory upon the court. This contention merits little discussion hereunder because of the announced rule appearing in DeWitty v. Decker, Wyo., 383 P.2d 734, 739-740. True, counsel for appellant was not present when this verdict was returned but he had absented himself through choice because of his individual convenience and necessity and was not then present to assert these objections, which can be waived. The court as a matter of courtesy had allowed him to be excused. This verdict was a matter of discussion between the court and the attorneys for parties who had remained in the trial, and those parties stipulated that the verdict might be received and the jury was polled. The following statement from DeWitty is most apropos:

'* * * we do not think it harsh or unreasonable to require a litigant, when an opportunity is afforded during the trial, timely to bring a matter such as here to the attention of the trial court in This case, having taken five and one-half days' time of the jury, the judge, and counsel, and involving witnesses from distant points, should not be aborted by the counsel's willing absence and the failure of any person upon the part of the appellant to seek correction at the proper time and before discharge of the jury.

order that it might be corrected, and failing in this that he shall not be heard here to complain. To hold otherwise would seem unfair to the jury, to the trial court, and to the other litigants, to say nothing of the unnecessary loss of time and expense.'

Appellant's contention is that the verdict is contrary to law because it attempted an apportionment of the damages. In similar situations there are four approaches which courts have taken, only two of which apply here, 89 C.J.S. Trial § 508, p. 183. These are that the verdict should be set aside or that it may be cured by disregard of the apportionment as surplusage and entry of judgment against all defendants by adding together the items for a total judgment. Appellant asserts that the first rule is applicable because of § 1-132. In light of our view of the operation of this section we cannot agree with this contention.

We have been unable to find any authority from this jurisdiction which is of assistance, although this court has mentioned that there is no right of indemnity as between joint tortfeasors. ¹ The release of one joint tortfeasor operates as a discharge of both, ² and some inference may rest in these holdings, i. e., the right to recover for tortious injury is an indivisible single claim which defies apportionment. That a jury cannot properly apportion damages between joint tortfeasors has almost universal recognition. ³ Miller v. Singer, 131 Colo. 112, 279 P.2d 846, 848, contains an exhaustive citation. The annotation appearing in 46 A.L.R.3d 808 et seq., indicates approval of this rule by 43 listed jurisdictions. Thus this verdict was improper for the jury to return. Although the question has never arisen in this state, it is not unique and has often been considered in various states when juries have returned verdicts attempting to apportion damages in face of this rule.

There are numerous cases treating the question of what effect a jury's effort to apportion the damages has, as was done here. Although some courts have held that such a verdict is defective and should be set aside and cannot sustain a joint judgment, there is considerable authority otherwise. To sustain this position appellant herein has cited us to the cases of Rathbone v. Detroit United Ry., 187 Mich. 586, 154 N.W. 143; City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25, and Glore v. Akin, 131 Ga. 481, 62 S.E. 580, along with 52 Am.Jur. Torts, § 124, p. 459. There is abundant authority contrary to this, but some of appellant's authorities will be examined.

We note with interest that the Am.Jur. citation relied upon, after giving recognition to this rule, states at p. 460:

'The numerical weight of authority, however, is to the contrary, and the trial court is held entitled to treat all the matter after the finding of joint liability as surplusage. * * *'

Although we have heretofore suggested that mere weight of decision from other states must not be accepted without careful examination, it should never properly be ignored, Collins v. Memorial Hospital of Sheridan County, Wyo., 521 P.2d 1339, 1341.

An examination of Rathbone, supra, is most interesting. ⁴ First we find a strong '* * * it might be held that the appellant had no cause of complaint, because in any event the jury had found it guilty and assessed the damages against it at the sum of $6,000. * * *'

dissent therein, but of most importance is the discussion of the court appearing in 154 N.W. at 145, suggesting that if the trial court had entered judgment upon this verdict for the amount only of $6,000 which had been assessed against appellant utility by the jury, rather than $10,000 which resulted from adding the two figures of $6,000 and $4,000, which was found against another defendant, that the result might have been different, and in discussing it that court said:

This statement appearing in that case clearly removes it as authority in the instant case because the trial judge reduced this judgment to $60,000, the amount determined to be due from the appellant by this jury, and reduced it in the amount of $5,000 found against Sturlin, and thus by way of the statement appearing in the Rathbone case the propriety of this court's action is confirmed.

There is much authority that where a jury has made a general finding of damages in a specific amount with an attempt by the jurors to apportion the damages the verdict may be taken and the apportionment treated as surplusage or as an irregularity. The case of Patton v. Guyer, 10 Cir., 443 F.2d 79, 87, notes that this is the Kansas rule and the rule in most jurisdictions. Also see Schuman v. Chatman, 184 Okl. 224, 86 P.2d 615, 617; Morgan v. Gore, 96 Colo. 508, 44 P.2d 918, 919-920; Bakken v. Lewis, 223 Minn. 329, 26 N.W.2d 478, 482, and ...