Washington Gas Light Co. v. Connolly

• Decision Date: 13 May 1954
• Docket Number: No. 11741.,11741.
• Citation: 94 US App. DC 156,214 F.2d 254
• Parties: WASHINGTON GAS LIGHT CO. v. CONNOLLY et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

94 US App. DC 156, 214 F.2d 254 (1954)

WASHINGTON GAS LIGHT CO. v. CONNOLLY et al.

No. 11741.

United States Court of Appeals District of Columbia Circuit.

Argued February 17, 1954.

Decided May 13, 1954.

Mr. John J. Wilson, Washington, D. C., with whom Messrs. Roger J. Whiteford, W. E. Gallagher, and Duane G. Derrick, Washington, D. C., were on the brief, for appellant.

Mr. William T. Hannan, Washington, D. C., with whom Mr. Ralph F. Berlow, Washington, D. C., was on the brief, for appellees. Mr. William H. Clarke, Washington, D. C., also entered an appearance for appellee Westchester Fire Ins. Co. of New York.

Before EDGERTON and FAHY, Circuit Judges, and RICHMOND B. KEECH, District Judge sitting by designation.

FAHY, Circuit Judge.

The Washington Gas Light Company appeals from a judgment of the District Court, based on a jury verdict, in favor of appellee Aloysius J. Connolly in the sum of $12,000, and in favor of appellee Westchester Fire Insurance Company of New York in the sum of $6,000. The judgment grew out of an action by Connolly and the Insurance Company against the Gas Light Company to recover damages caused by a fire alleged to have been due to the negligence of the Gas Light Company. Under a policy covering the premises where the fire occurred, owned by Connolly, the Insurance Company paid him $6,000 and to that extent was subrogated to his claim against the Gas Light Company.

At all times material Connolly was a doctor with professional offices in the basement of the premises, no other part of which was occupied at the time. Sometime during the night of December 6 or early morning of December 7, 1949, a fire broke out in this basement and caused substantial damage to the premises and to personal property therein including the doctor's professional equipment.

An automatic gas furnace was located in one of the basement rooms. The complaint alleged that employees of the Gas Light Company performed certain work on this furnace and its appliances in a negligent and careless manner, resulting in the fire.

A somewhat lengthy trial was vigorously contested, both as to liability and damage. The Gas Light Company sought exoneration by the court at the conclusion of plaintiffs' case, at the conclusion of all the evidence, and again after the verdict, but in each instance the court ruled the issue of liability to be one for the jury.

We agree. The heating plant and appliances were not installed by the Gas Light Company and it was under no general obligation to maintain them in good condition. But about a week previous to the fire it undertook, at the doctor's request, to put the furnace in operation. And the afternoon before the fire, again at his request, it undertook to remedy a "no heat" situation complained of by the doctor. The performance of this work gave rise to a legal obligation on the part of the Gas Light Company to exercise due care in its execution. Washington Gas Light Co. v. Biancaniello, 87 U.S. App.D.C. 164, 183 F.2d 982; Skelly Oil Co. v. Holloway, 8 Cir., 171 F.2d 670, 674. We do not read Donoughe v. East Ohio Gas Co., 89 Ohio App. 411, 102 N.E.2d 881, relied on by the Gas Light Company, as laying down a different rule. The court below correctly described this obligation to the jury, as follows,

"* * * that degree of care necessary under the circumstances in repairing or in examining the condition of the heating system * * * It was bound to exercise such care, skill and diligence in all its operations, and in the transaction of all its business, as the difficulty or danger thereof required. All precautions of safety must be taken within the bounds of reason in repairing and caring for gas appliances * * *."

There is a dispute as to the sufficiency of evidence to warrant the court in submitting to the jury the question whether the work undertaken by the Gas Light Company was performed with this requisite care and, if not, was the proximate cause of the fire. We think the evidence was sufficient, having in mind that we must now view the evidence on this question in the light most favorable to the appellees. Higashi v. Shifflett, 90 U. S.App.D.C. 302, 195 F.2d 784, and cases there cited. Credible testimony was introduced that servicemen from the Gas Light Company would start the doctor's furnace each fall; that on such calls the Gas Light Company made it a practice to check the furnace controls; that such a check was recorded as having been made the week prior to the fire; and that at the time of the fire the operation of each of the automatic safety controls over the flow of gas into the burners was defective. All the evidence material to the issue of negligence was controverted, but its resolution was for the jury.

As to proximate cause there was a dispute whether the fire had its origin in the furnace. The Gas Light Company sought to convince the jury the fire was due to ignition by defective electric wiring of quantities of paint and other possibly inflammatory material on the premises. But there was substantial evidence of the fire's intensity in the immediate vicinity of the furnace, and of the condition of the furnace and its surroundings, from which the jury reasonably could conclude that the furnace was the source of the fire. On the issues both of negligence and proximate cause and, therefore, of liability, we find no prejudicial error in the submission of the case to the jury.¹

We come now to the damage. The part of the judgment awarding $6,000 to the Insurance Company will be affirmed, subject to the condition hereinafter stated. The evidence is altogether sufficient to support recovery of this amount for damage to the building.

We set aside, however, the award of $12,000 to appellee Connolly and remand the question of amount, though not that of liability, for a new trial. It is well settled that we may thus divide the issues and limit the scope of a new trial. Thompson v. Camp, 6 Cir., 167 F.2d 733; May Department Stores Co. v. Bell, 8 Cir., 61 F.2d 830, 842-843; Farrar v. Wheeler, 1 Cir., 145 F. 482, 486, on rehearing; see, also, Kraft v. Lowe, Mun. App.D.C., 77 A.2d 554, 558; Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 497, 51 S.Ct. 513, 75 L.Ed. 1188; Furr v. Herzmark, 92 U.S.App. D.C. 350, 206 F.2d 468; 28 U.S.C. § 2106 (Supp.1952).

Two circumstances impel us to set aside this part of the judgment. In an inventory of losses admitted in evidence, plaintiff valued a diathermy at $750. His testimony, though somewhat unclear, we think must have been understood by the jury as meaning that this article was purchased new by him. The Gas Light Company accompanied its motion for a new trial with an affidavit, which is quite convincing, that the machine was not new but secondhand when purchased by Connolly, and cost him only $244.80. It might be that the doctor's testimony was intended to indicate $750 as the value of a new instrument of this character rather than of the one he had, but it is unlikely the jury would so have understood. We would hesitate to disturb, on this basis alone, the discretion of the trial judge in denying the motion for a new trial; but this incident must be viewed in the light of another. The doctor testified that the items listed in the inventory, totaling $7,814.50, contained the same figures as in his personal property tax returns.² Adding to the highest figure shown by the returns the value of property purchased after the date of the last return but before the fire, there remains a large discrepancy between values testified to and those shown by the returns.³ Of course the latter might not have been correct. But these two incidents bearing upon the value of the personalty, without further explanation, and in the absence of independent evidence to justify the full amount, leave this part of the verdict with precarious support in the evidence. Perhaps neither of the discrepancies alone would be sufficient to require a new trial, but in combination they impel the conclusion that the total award for damages to personalty does not find support in the evidence. We see no satisfactory way of obtaining a determination of the proper amount other than by requiring a new trial of this part of the case.⁴

Our disposition of the appeal above indicated must be conditioned as now explained. After the verdict the Company filed an affidavit to the effect that one of the jurors, Irene Martin, during the course of the trial asked the Company to have her furnace checked in circumstances which indicated she might have been obtaining independent information to assist her in reaching a verdict. In connection with its motion for a new trial, or for judgment notwithstanding the verdict, the Company sought opportunity to interrogate this juror, which was denied. We think this matter should have been inquired into by the court to determine if prejudice occurred. See Ryan v. United States, 89 U.S.App. D.C. 328, 191 F.2d 779, certiorari denied sub nom. Duncan v. United States, 342 U.S. 928, 72 S.Ct. 368, 96 L.Ed. 691; Washington Times Co. v. Bonner, 66 App. D.C. 280, 292, 86 F.2d 836, 848, 110 A.L. R. 393. The denial of a new trial in the former of these cases and of a mistrial in the latter was affirmed, but in each an inquiry had been made into the question of prejudice. In Orenberg v. Thecker, 79 U.S.App.D.C. 149, 143 F.2d 375, a new trial was also denied because of alleged misconduct of jurors but the case does not hold that a hearing would not have been proper to determine whether or not prejudice had occurred. See Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450. See, also, Middleton v. Kansas City Public Service Co., 348 Mo. 107, 152 S.W.2d 154. The question of prejudice and therefore of a new trial should await, on the facts of the present case, the result of the inquiry. A proper procedure, which we follow in so far as here applicable, is set forth in Remmer v. United States, supra, and in Wheaton v. United States, 8 Cir., 133 F.2d...