Rulane Gas Co v. Montgomery Ward & Co. Inc

Citation56 S.E.2d 689,231 N.C. 270
Decision Date14 December 1949
Docket NumberNo. 527.,527.
CourtUnited States State Supreme Court of North Carolina
PartiesRULANE GAS CO. v. MONTGOMERY WARD & CO., Inc.

Augusta E. Reis, administratrix of Louis A. W. Reis, deceased, sued the Rulane Gas Company to recover damages for the injury and death of her intestate, alleging negligence on the part of the Gas Company in the installation and service of an automatic gas heater, resulting in an explosion with fatal consequences.

The Rulane Gas Company moved that Montgomery Ward & Company, from whom the heater was purchased be made a party defendant, and set up a cross-action against Montgomery Ward & Company for contribution.

The Superior Court, Mecklenburg County, George A. Shuford, Special Judge, entered judgment that plaintiff recover of defendant Rulane Gas Company $25,000 and that Rulane Gas Company have judgment over against defendant, Montgomery Ward & Company for $12,500 and Montgomery Ward & Company appealed.

The Supreme Court, Devin, J, held that the Montgomery Ward & Company could not reasonably have been expected to foresee that 14 months after it sold the heater gas would be exploded as result of palpable neg-

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Reversed.

Augusta E. Reis, administratrix of Louis A. W. Reis, deceased, instituted action against Rulane Gas Company to recover damages for the injury and death of her intestate, alleging negligence on the part of the Gas Company in the installation and service of an automatic gas heater, resulting in an explosion with fatal consequences.

Plaintiff Reis, in her complaint, alleged that the negligence of Rulane Gas Company in the respects set out proximately caused the injury complained of. The Rulane Gas Company then moved under G.S. § 1-240 that Montgomery Ward & Company, from whom the heater was purchased, be made party defendant, and filed answer denying negligence on its part, and setting up a cross-action against Montgomery Ward & Company for contribution in the event it should be adjudged liable to the plaintiff. In its cross-complaint the Rulane Gas Company alleged that Montgomery Ward & Company was negligent in that under a representation of safety it sold to plaintiff's intestate an automatic gas hot water heater not adapted for use with bottled or other liquefied petroleum gas, and not equipped with proper automatic cut-off valve which would have stopped the flow of gas to the heater when the pilot light was out, and rendered an explosion impossible.

Defendant Montgomery Ward & Company, answering, admitted it sold to plain tiff's intestate a heater which had been manufactured for it by a named manufacturer, but denied that any part of the apparatus was defective when sold, or, if so, that the defect was one capable of detection by ordinary care, and further that any negligence in this respect was not the proximate cause of the explosion and consequent injury but was insulated by the subsequently operating negligence of the defendant Gas Company.

Upon issues submitted, the jury for their verdict found that the injury and death of plaintiff's intestate was caused by the negligence of defendant Rulane Gas Company, and also that this fatal injury was due to "the joint and concurring negligence of defendant Montgomery Ward & Company and the defendant Rulane Gas Company as alleged in the further defense and cross-action of the defendant Rulane Gas Company." Damages were assessed in total sum of $25,000. Judgment was rendered that plaintiff recover of defendant Rulane Gas Company $25,000, and that Rulane Gas Company have judgment over against defendant Montgomery Ward & Company for $12,500. The defendant Rulane Gas Company has paid the amount of the judgment to the plaintiff, and in order to preserve the lien of the judgment for the purpose of enforcing contribution against the defendant Montgomery Ward & Company has had the judgment transferred to a trustee for its benefit. Defendant Montgomery Ward & Company appealed.

Jones & Small, Charlotte, for plaintiff appellee.

Frank H. Kennedy, Charlotte, for defendant appellant.

DEVIN, Justice.

The original plaintiff recovered in her action against Rulane Gas Company for the injury and wrongful death of her intestate, and the Gas Company has paid the plaintiff the amount of the judgment. However, Montgomery Ward & Company having been made party defendant, and the allegations in Rulane Gas Company's answer and cross-complaint of joint and concurring negligence having been sustained by theverdict and judgment below, Montgomery Ward & Company has appealed from the judgment decreeing contribution, and brings the case here for review.

We note that the case was instituted and tried below under the original title of Reis v. Rulane Gas Company, to which as additional defendant Montgomery Ward & Company was made party, and the issues raised by the pleadings were submitted to the court and jury. But the case has been brought here under the title of Rulane Gas Company v. Montgomery Ward & Company. While we think, in accord with the practice in this jurisdiction, the original title of a cause should be preserved throughout the litigation, we are not disposed in this case to require alteration of the style under which counsel have brought the case here. Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534.

The liability of Rulane Gas Company to the original plaintiff Reis was established and the amount of recovery fixed by the verdict and judgment in the court below. The question now presented is the propriety of the judgment over against Montgomery Ward & Company for contribution as joint tort-feasor. The assignment of error chiefly debated by the appellant here was the denial of its motion for judgment of nonsuit on Rulane Gas Company's cross-action. It was urged that the evidence was insufficient to show negligence on the part of Montgomery Ward & Company proximately contributing to the injury for which recovery was had.

From the evidence offered, it was made to appear that the Rulane Gas Company was engaged in the business of selling the petroleum product known as bottled gas or propane gas and commonly called by the trade name rulane gas, and also in servicing automatic hot water heaters which used rulane gas as a heating agent. It seems three kinds of gases are used for this purpose, manufactured gas (from coal), natural gas, and rulane gas. The relative heating value of these gases per cubic foot as measured in British Thermal Units was 555 for manufactured gas, 950 to 1150 for natural gas, and approximately 2550 for ru lane gas. Rulane gas is heavier than air, its specific gravity compared with air being in proportion of 150 to 100, while that of manufactured or natural gas is 65. So that rulane gas escaping in an enclosed room sinks to the floor and remains undiluted until expelled. It also appears that rulane gas is highly inflammable and in quantity lends itself readily to explosion on ignition.

In May 1946 Edwin A. Reis purchased from Montgomery Ward & Company for use in the home in which he and Louis A. W. Reis lived an automatic gas hot water heater under representation by the seller that it could be used "with safety" with rulane gas. When the heater was delivered crated, it was discovered that it bore a metal tag on which appeared these words, "Warning--This heater must not be used with bottled gas, butane or other liquefied petroleum gases." Upon observing this warning Reis called Montgomery Ward & Company, and, apparently being assured that the heater could be readily adjusted for the use of rulane gas, called in the Rulane Gas Company, who installed the heater, connected it with the tank, and put it in service. For use of rulane gas a smaller orifice or aperture for the flow of gas to the burner was installed. A small pilot light was kept burning at all times to ignite the flow of gas as regulated by a thermostat. The means of regulating and cutting off the flow of gas consisted of a manually operated cut-off valve, and a thermostat which regulated the flow of gas according to the temperature of the water in the tank in the heater and the amount of heat desired. This heater was also equipped with an automatic cut-off valve so arranged that when the pilot light went out it would automatically close and cut off the flow of gas into the heater. The heater was operated in the Reis home continuously and without accident until July 17, 1947, when, not having been used that day, at 9 P.M., it was discovered the heater was cold and burner and pilot lights out. Louis A. W. Reis reported this fact to the Rulane Gas Company and apparently turned off the manually operated valve at that time. The Gas Company's service man did not arrive until 1 P.M. on the 18th when, with Mr. Reis, he descendedinto the basement, a small enclosed room, and disregarding a warning not to do so struck a match to light the heater. Instantly an explosion followed, inflicting such serious and painful burns that Reis died the next...

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