Ruberg v. Skelly Oil Co.
| Citation | 297 NW 2d 746 |
| Decision Date | 05 September 1980 |
| Docket Number | No. 49793.,49793. |
| Parties | Luverne R. RUBERG, et al., Respondents, v. SKELLY OIL COMPANY, Appellant, Keith C. Engen and Carl Lundgren, co-partners, d.b.a. Lundgren and Engen Excavating, Respondents, Applit Zimm, d.b.a. Standard Heating Company of Duluth, Respondent. |
| Court | Minnesota Supreme Court |
Trenti, Saxhaug, Berger, Carey, Roche, Stephenson & Richards, and Tom Carey, Virginia, for appellant.
Robins, Davis & Lyons and Michael V. Ciresi, St. Paul, and Robert M. Wattson, Minneapolis, for respondent Ruberg, et al.
Hanft, Fride, O'Brien & Harries, Duluth, for respondent Engen and Lundgren, etc.
Johnson, Fredin, Killen, Thibodeau & Seiler, Duluth, for respondent Applit Zimm.
Heard before SHERAN, C. J., OTIS, and PETERSON, JJ., and considered and decided by the court en banc.
Plaintiff/respondent Luverne R. Ruberg was injured in a gas explosion on March 2, 1973. Thereafter he commenced this negligence action against defendants/respondents Keith C. Engen and Carl Lundgren, doing business as Lundgren and Engen Excavating (hereafter Lundgren and Engen), and defendant/appellant Skelly Oil Company (hereafter Skelly). Skelly subsequently brought in Thermo Products, Inc., and Applit Zimm, doing business as Standard Heating Company of Duluth, as third-party defendants. The claim against Thermo Products was later dismissed.
After a trial that extended over four weeks, a jury attributed causal negligence fifty-five percent to Lundgren and Engen, thirty percent to Skelly, and fifteen percent to plaintiff. Zimm was found not negligent. The court's order for judgment was filed on July 25, 1978. Shortly thereafter Skelly moved for judgment notwithstanding the verdict, amended findings, or a new trial. The motions were denied. Skelly appeals. We affirm.
Before reaching the merits of this appeal, however, we must resolve a question of appealability. Skelly appealed from the order for judgment, which was then nonappealable. In addition, while Skelly's notice of appeal was filed seven days after its post-trial motions were denied and judgment was entered, it was not filed within thirty days after notice of the filing of the order for judgment was served. As an appeal from an order, therefore, this appeal was untimely. Under the rules of civil appellate procedure that apply to this case, the appeal is clearly defective.
We note, however, that as of April 9, 1979, our rules have been amended to permit appeals from orders for judgment. Minn.R.Civ.App.P. 103.03(a). In addition, hereafter, in the spirit of that rule, where an appeal from an order for judgment has been taken within the time to appeal from the judgment, we will treat it as an appeal from the judgment.
Here Skelly appealed from the order for judgment within the time for an appeal from the judgment. Moreover, the facts and circumstances of this case persuade us that Skelly was not inexcusably dilatory and that justice would be better served by reaching the merits of the case. Therefore, even though the appeal is defective, we will take jurisdiction under Minn.R. Civ.App.P. 102. See LeRoy v. Marquette Nat'l Bank of Minneapolis, 277 N.W.2d 351, 353 (Minn.1979). As this appeal will be treated as an appeal from the judgment, we may review any issue raised by appellant on a motion for a new trial as well as any challenge to the sufficiency of the evidence. Minn.R.Civ.App.P. 103.04(2).
The record discloses that in 1969 plaintiff purchased Lakeland Court, a property near Duluth. The property, which had been vacant a few years, contained a lodge, a shower building, and several cabins. Lakeland Court was serviced by a liquid propane gas system. A 500-gallon tank and regulator were located at the northern end of the property with a central pipe running south to the lodge and shower buildings. A short distance from the tank, pipes running east and west were connected to the central line. The gas pipe, some sections copper and others steel, lay partly underground and partly above ground.
In 1970 plaintiff tore down part of the lodge, demolished or sold several cabins on the west side of the property, and capped the west gas line.
Plaintiff and his wife lived off the premises until September 1972. In summer 1972 he began building directly north of the lodge a basement intended to serve as the foundation for a new residence. Lundgren and Engen were employed as excavators. Plaintiff discussed with Carl Lundgren the location of gas and water lines and the capping of the central gas line. Later, while Lundgren staked out the excavation site, plaintiff, using a plug and cement, capped the central line sixteen to twenty feet from the excavation site. He tested the plug for leaks with a soap and water solution. Two to three feet of the capped pipe remained above ground and visible.
Plaintiff never spoke with Keith Engen prior to the excavation nor was he present when Engen began digging. As Engen dug the hole for the basement, he dumped the excavated dirt and a concrete slab onto the capped gas line. Plaintiff did not discuss with Lundgren and Engen the placement of excavated soil either before or after the excavation. The excavation pile remained where it was deposited until after the explosion.
Construction continued on the new residence which was targeted for occupancy in spring 1973. In late November 1972 and in February 1973, the Rubergs, then living in the lodge, ran out of gas. On the first occasion, late in the evening, plaintiff's wife Joanne commented to Ken Smith, Skelly's delivery and serviceman, that she thought their gas consumption had been unusually large. Smith responded that poor insulation could be the cause but that the system could be tested in the spring.
On February 27, 1973, four days before the explosion, plaintiff detected an odor like varnish remover in the basement of his new home, which was almost ready for occupancy. Skelly was not informed of the odor. A plumber was called, but no plumbing problems were found.
At the same time an oil-fired furnace that had been hooked up the previous month was causing sooting problems. An employee of Applit Zimm checked the furnace on February 28 and March 1. On the second occasion he told plaintiff to turn the furnace off that night and on again the next morning.
When plaintiff turned the furnace on the next morning, there was an explosion. Plaintiff suffered second- and third-degree burns over forty percent of his body.
An expert called by plaintiff testified at trial that gas leaked from a fracture of the southernmost part of the capped central gas line. From its nature, he felt that the fracture probably occurred when a heavy object was pushed or pulled across the pipe. The fracture could have been produced by heavy equipment such as that used by Lundgren and Engen or by a heavy load dropped onto the pipe.
Another expert testified that leaked propane migrated through the clay soil and entered plaintiff's basement through concrete blocks and a drainage tile system; in the process, he testified, the gas may have lost its odorant, picked up the order of the surrounding soil, and, thus, escaped detection.
1. Skelly contends first that the trial court committed prejudicial error by charging the jury, at the request of Lundgren and Engen, as to superseding cause. The jury were correctly told:
The instruction was read twice with the court cautioning the jury that the double reading did not reflect the importance of the issue. The following morning the jury returned asking for another explanation of superseding cause and how it related to the special verdict questions. After a discussion between court and counsel, the instruction was read a third time without further...
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