Ruth v. Hutchinson Gas Co.
| Decision Date | 24 January 1941 |
| Docket Number | No. 32411.,32411. |
| Citation | 209 Minn. 248,296 N.W. 136 |
| Parties | RUTH et al. v. HUTCHINSON GAS CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, McLeod County; Jos. J. Moriarty, Judge.
Actions for wrongful death by Dorothy Ruth, special administratrix of the estate of Frank J. Ruth, by Frances Schoeneman, special administratrix of the estate of Lyle H. Schoeneman, by Letha G. Spannaus, special administratrix of the estate of Walter M. Spannaus, and by Frank H. Jergens, special administrator of the estate of Lewis P. Jergens, and action by Joseph H. Julig for personal injuries from carbon monoxide gas, against the Hutchinson Gas Company & others. From an order denying the plaintiffs' motion in the alternative for judgment notwithstanding the verdict or for a new trial, the plaintiffs appeal.
Order affirmed.
W. E. Ryerson and Elmer C. Jensen, both of Hutchinson, and Fletcher, Dorsey, Barker, Colman & Barber and Chas. F. Noonan, all of Minneapolis, for appellants.
Faegre, Benson & Krause, Paul J. McGough, and Wright W. Brooks, all of Minneapolis, and Joseph P. O'Hara, of Glencoe, for defendant-respondent Home Gas Company.
J. D. Nunan and R. M. McCareins, both of Minneapolis, for other respondents.
This appeal involves five cases in which recovery was sought upon the grounds of defendants' alleged negligence. Plaintiff Joseph Julig sues for personal injuries. The other four plaintiffs sue for the wrongful death of their respective decedents.1
Julig, Frank J. Ruth, Lyle H. Schoeneman, Walter M. Spannaus, and Lewis P. Jergens were friends. Some of them were businessmen, and the others held responsible business positions with firms at Hutchinson. In November, 1938, they arranged to go deer hunting near Big Falls in the northern part of the state. Each was to bring his own bedding, except the mattresses, and his arms and ammunition. Each contributed to a common fund or "kitty" of which Ruth was the custodian and out of which the expense of travel, food, and incidentals was to be paid. The testimony was that "each fellow had an equal voice in the running of the trip."
The five men planned to travel in a motor truck with a brooder house attached from Hutchinson to the place where they intended to hunt and to use the brooder house as their living quarters while they were hunting. Julig obtained the use of the brooder house from a lumber company and of the truck to which it was attached from his employer. The brooder house, as its name indicates, was a small structure such as is used by chicken raisers and was approximately 14 feet long, 8 feet wide, and 7 feet 4 inches high with a cubical content of about 600 feet. It had one door and five windows. There was a hole in the roof eight inches square to which a "smokestack" had been attached, but this had been knocked off by contact with the structure above the door of a garage into which the truck had been driven.
Julig arranged with the corporate defendants for heat and fuel. They loaned and installed without charge a Radiantfire heater, a cooking plate, and two drums of propane gas for fuel. They donated as much of the gas as was to be consumed on the trip. The only obligation on the part of the men was to return the equipment and the unused gas. All the equipment was of standard type, design, and construction, in good shape, and free from defects. No claim was made that there was anything wrong with the gas.
The equipment was installed at the plant of the corporate defendants, where the truck with the brooder house attached was taken for that purpose. The defendant Luedtke, manager of the Hutchinson Gas Company and in charge of the business of both corporations at Hutchinson, arranged for the gratuitous installation of the equipment and the gift of the gas to be used. The installation was made under his direction by the defendant Rolander, an employe who had been a gas service man for 15 years. He tested the equipment after it was installed and found it in good working order. He had made thousands of similar tests and had installed over 100 heaters, including three or four of the type here involved.
At the time of the installation there was the 8-inch square hole in the roof of the brooder house where the smokestack had been. During the progress of the work a tinsmith representing Julig and the other men measured the hole in the roof for the purpose of installing some sort of ventilator or cover. After the installation of the heating and cooking equipment the truck was driven away with the hole in the top of the brooder house unclosed. Later the tinsmith attached a cover over the opening which operated on a hinge and could be raised and lowered by means of a wire and kept open as desired by fastening the wire to a nail.
The heater had a collar to which a pipe or vent could be attached to carry off combustion gases or, as they were called, "flue products", but no such pipe was attached or installed. The evidence showed that Luedtke and Rolander knew that the burning of the gas gave off flue products, but that they did not know the exact nature thereof or that, as it appeared here, the flue products consisted in part of carbon monoxide gas.
The heater had been used previously without a vent pipe with no injurious results. It had been sold to a customer who used it in his kitchen with propane gas as fuel during 1933 and 1934. Sometimes the kitchen door was closed and sometimes open. The customer returned the heater because he was in default on his payments. Thereafter the heater was installed without a vent pipe in the office of the Hutchinson Gas Company. The service was satisfactory and without ill effects in both instances, although the heater was not vented.
In the presence of all the men who went on the hunting trip except Spannaus, Rolander explained the use of the equipment to Julig. Rolander and other witnesses testified that he then instructed Julig to keep the brooder house well ventilated and to keep the door or a window open. This Julig positively denied.
Early on the morning of November 13, 1938, the hunting party left Hutchinson for Big Falls, which was some 300 miles distant. Two of them rode in the driver's seat and three of them in the brooder house attached to the truck. The heater was on all the way en route without any distressing results. The evidence does not show whether the roof ventilator was kept open en route or to what extent the brooder house was ventilated, except inferentially that the only ventilation was through cracks around the windows and an opening under the door. Apparently the windows and door were kept closed. Nor does the evidence show what the temperature wind, or other atmospheric conditions were.
After reaching their destination the truck was parked. It was then cold, the temperature being below zero, and still. There was about six inches of snow on the ground. The heater was turned off while the men prepared their supper. After supper the heater was lighted again. The ventilator was kept open. The parties retired for the night with the heater burning. Julig, who slept alongside of a window where there was some draft, woke up during the night from nausea. There was evidence that he attempted to communicate with his companions. Receiving no response, he assumed that they were sleeping soundly and went to sleep again himself.
On the morning of November 14 two game wardens opened the door of the brooder house and found Julig unconscious and the other four men dead. The ventilator had been shut and the windows and door of the brooder house had been closed tight.
It was ascertained later that Julig's condition and the deaths of his four companions were caused by inhaling carbon monoxide gas given off by the heater while burning propane gas during the night.
Plaintiffs claimed that defendants were guilty of negligence in failing to install a pipe, vent, or other means to carry the carbon monoxide gas from the heater to the outside and in failing to warn Julig and the decedents of the carbon monoxide gas that would be given off by burning the gas in the heater and of the dangers incident thereto if the gases were not eliminated from the brooder house. The corporate defendants were charged as suppliers of the equipment and the gas and the individual defendants as agents and employes of the corporate defendants in accomplishing those purposes.
The evidence showed that the burning of propane gas in the heater gave off, among other flue products, carbon monoxide gas, which, because it had not been carried to the outside, freely circulated with the air inside. Carbon monoxide gas is colorless and to most people practically tasteless and odorless. Its effect upon the human system depends upon its density. A concentration of one-fifteenth of one per cent. is dangerous to human life, two-tenths of one per cent. is usually fatal, and one per cent. is regarded as fatal within a very short time. The density of a particular concentration in a given place depends not only upon the amount of carbon monoxide gas produced there, but also upon the extent of the elimination of the carbon monoxide gas and the introduction of fresh air. There was no affirmative showing here as to the amount of carbon monoxide gas given off by the heater or the amount of fresh air introduced through the roof ventilator, the opening under the door, and the cracks around the windows. Such means of ventilation proved sufficient while the party was en route from Hutchinson to Big Falls. There was not sufficient ventilation with the roof ventilator closed when the truck was at rest. The evidence does not show that there would have been sufficient ventilation if the roof ventilator had been kept open during the night, but an inference of the affirmative is permissible in view of the fact that no member of the party experienced any ill effects or distress while the ventilator was kept...
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