White Auto Stores v. Reyes

• Decision Date: 24 May 1955
• Docket Number: No. 4978.,4978.
• Citation: 223 F.2d 298
• Parties: WHITE AUTO STORES, Inc., Appellant, v. Juan REYES; Jovita Reyes; and Juan Reyes as Administrator of the Estate of Anna Marie Reyes; Senaida Reyes; Julian Reyes; and Jose Luis Reyes, Deceased; and Stahmann Farms, Inc., Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

223 F.2d 298 (1955)

WHITE AUTO STORES, Inc., Appellant, v. Juan REYES; Jovita Reyes; and Juan Reyes as Administrator of the Estate of Anna Marie Reyes; Senaida Reyes; Julian Reyes; and Jose Luis Reyes, Deceased; and Stahmann Farms, Inc., Appellees.

No. 4978.

United States Court of Appeals Tenth Circuit.

May 24, 1955.

R. C. Garland, Las Cruces, New Mexico (of Garland & Sanders, Las Cruces, New Mexico), for appellant.

W. C. Whatley, Las Cruces, New Mexico (Whatley & Oman and Edward E. Triviz, Las Cruces, New Mexico, were with him on the brief), for appellees, Juan Reyes and others.

B. G. Johnson, Albuquerque, New Mexico, for appellee, Stahmann Farms, Inc.

Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

On May 11, 1953, a butane gas explosion occurred at the home of the plaintiffs, Juan Reyes and his wife, Jovita Reyes, causing the death of their four minor children, and serious and painful burns and permanent injuries to Mrs. Reyes. The home in which the explosion occurred was owned by Stahmann Farms, Inc., and was equipped for the use of butane gas. The defendant, White Auto Stores, Inc., had sold the plaintiffs a gas stove and the explosion occurred while one of its employees was testing the stove for gas leaks after he had connected it to the gas system.

Jovita Reyes sought damages for her personal injuries, and Juan Reyes sued for damages which he suffered because of the injuries to his wife including medical and hospital costs. Juan Reyes sought to recover damages as administrator of the estates of the four deceased children. The defendant brought Stahmann Farms, Inc., herein referred to as Stahmann, into the case by third party proceedings in which it alleged that the plaintiffs were tenants of Stahmann, and that their injuries resulted from negligence in the maintenance of the gas system in the house. The defendant denied any negligence on its part, and as an affirmative defense alleged contributory negligence on the part of the plaintiff. The principal defense of the defendant was that its employee was not acting within the scope of his employment when the gas stove was connected. Stahmann alleged that it was not guilty of any negligence which was the proximate cause of the explosion and the resulting deaths and injuries. The case was tried to a jury which returned verdicts in favor of the plaintiffs and against White Auto Stores, Inc. in the total sum of $77,500.¹ The jury also found the issues in favor of Stahmann. This appeal is from the judgment entered on those verdicts.

Juan Reyes was an employee of Stahmann and was furnished living quarters for himself and family in addition to his regular compensation. Prior to May 10, 1953, Juan and his family lived in quarters which were not equipped for the use of gas. Neither he nor his wife had had any experience in the use of gas appliances, and did not know how to operate them. The Reyes family contemplated moving into other quarters belonging to Stahmann and did move on May 10th. These quarters contained a butane gas system. On Saturday evening, May 9th, Juan went to the defendant's store in Las Cruces, New Mexico, to purchase a kerosene or wood cook stove. Joe Lucero, manager of the defendant's appliance department, advised Juan to purchase a butane gas cook stove. Juan purchased the recommended stove on a deferred payment plan. Lucero told him that the stove would be delivered the following Monday morning and that neither the defendant nor Lucero was licensed to connect the stove with the butane system but that it would be necessary for Juan to obtain a regular licensed plumber for that purpose.

At about noon on Monday, May 11th, the stove was delivered to the Reyes' home by two employees of the defendant. The entire Reyes family was there at the time and Juan showed the two employees where to place the stove in the kitchen and told them that Lucero wanted them to obtain a measurement for the length of pipe necessary to connect the stove with the system. Juan then left to resume his work. About three o'clock that afternoon, Lucero called at the home and told Mrs. Reyes that the defendant had sent him to connect the stove. He had with him a box of tools suitable for adjusting and connecting the stove and a piece of pipe of the proper length to connect it, together with fittings to adjust and install it. Lucero immediately began to connect the stove with the butane system, and while he was connecting it, he told Mrs. Reyes that he was not supposed to do that kind of work and asked her not to say anything about it.² Mrs. Reyes was an uneducated woman who could not read or write, and could not speak the English language. During the time the work was being done, Mrs. Reyes was sitting in a chair near the door between the kitchen and the living room with a baby in her arms. It is evident from the record that she did not know anything about what was being done and took no part in it.

After Lucero had connected the stove, he went outside to the butane container and turned the gas into the system. Upon his return, he told Mrs. Reyes that the gas was coming through. She observed some liquid dripping from one of the connections which Lucero had made. He lighted a match and when he applied it to the connection a small flame arose indicating that gas was escaping. He tightened the connection further, repeated the test, and found that there was still a small leak. After further tightening, Lucero lit a third match and the explosion followed. Mrs. Reyes was blown through the kitchen door into the living room where three of her children were sleeping. All four children died from the burns they received, and Lucero was also killed. Mrs. Reyes survived after months of hospitalization and treatment.

The prior occupants of the house had a gas heater connected in the living room. When they left, the heater was taken and the end of the connecting pipe was left open. It was still open when Lucero turned on the gas. A short time after the explosion occurred, inspectors for the New Mexico Public Service Commission made an inspection. They found that the stove was of a convertible type suitable for the use of natural or butane gas; that three of the four burners had been converted for the use of butane gas; and that the fourth burner had not been converted but was open so that gas could escape therefrom. A neighbor, who was in the house immediately after the explosion, said that tools were on and about the stove and that one burner was open. A plumber testified that the burners showed that they had been lit shortly before the explosion. No question is raised here as to the sufficiency of the evidence to sustain the amount of the verdicts, or the negligence of Lucero. We think it is clear that the evidence is sufficient to sustain the verdicts and to establish the negligence of Lucero.

For reversal the defendant presents three general propositions: first, that Lucero was not acting within the authority or the scope of his employment at the Reyes' home; second, that the relationship of landlord and tenant existed between Reyes and Stahmann, and that the uncontradicted evidence showed that the explosion was caused by the failure of Stahmann to comply with the New Mexico law in maintaining the gas system; and third, that the trial court gave certain erroneous instructions and erroneously refused to give the defendant's requested instructions.

The evidence established that the employees of the defendant, including Lucero, were trained to adjust and service gas appliances, and that when such appliances were sold it was their duty to follow up such sales and do whatever was necessary to satisfy the purchaser and put the appliance in good working condition.³ The evidence was uncontradicted that the defendant did not have the necessary license to connect or service gas stoves, and that Lucero told Reyes that it would be necessary for him to obtain a plumber for this purpose. It was also uncontradicted that Lucero was not authorized by his employer to connect stoves. Mrs. Reyes was told that he was not authorized to install stoves. But these circumstances do not necessarily absolve an employer from liability for the acts of his employee. Early in its legal history, the New Mexico Supreme Court established the rule that an act of an employee is within the course of his employment if, one, it was something fairly and naturally incident to the master's business and, two, if it was done while the servant was engaged upon his master's business with a view to furthering the master's interest, or from some impulse which naturally grew out of or was incident to an attempt to perform the master's business and did not arise wholly from some external, independent and personal motive on the part of the employee to do the act upon his own account. Childers v. Southern Pacific Co., 20 N.M. 366, 149 P. 307.

In the Childers case, the employee was a watchman whose duty was to keep trespassers off the property of the railroad, and to prevent persons from boarding and stealing rides on trains. The employee saw the plaintiff near the tracks while a train was passing. He thought the plaintiff was a trespasser preparing to board the train. To prevent this trespass the watchman, without authority, severely beat the plaintiff. In upholding a judgment in favor of the plaintiff the court ruled that although the employee was not authorized to beat the trespasser, it was within the employee's duties to prevent a trespass, and that the employer was liable for the employee's acts in the furtherance of this duty even though the wrongful act was unauthorized. The rule has been cited with approval in subsequent New Mexico cases. Miera v. George, 55 N.M. 535, 237 P.2d 102; Archuleta v. Floersheim Mercantile Co., 25 N.M. 632, 187 P. 272, 273, 40 A.L.R. 199; Gutierrez v. Montosa Sheep Co., 25 N.M. 540, 185 P. 273; Bruton v. Sakariason, 21 N.M. 438, 155 P....