This сase arises as the aftermath of an explosion in a loft building, which occurred during an attempt to commit arson on the premises of the defendant Keshner, Inc., and resulted in the death of Detective Daggett and serious injuries to Detective Phelan, while they were in the act of apprеhending the conspirators. Plaintiff Daggett, the father of the fatally injured detective, as administrator, and plaintiff Phelan, on his own behalf, have brought this action to recover damages, not only from defendants Keshner and Keshner, Inc., but also
In Daggett v. Keshner (
This court held that plaintiffs could recover under the statute if they could establish a reasonable or practical connection between the illegal sale and the accident on the trial—a conneсtion that need not satisfy the requirement of proximate cause in the conventional common-law negligence action (Daggett v. Keshner, supra).
The case went to trial before court and jury. At the outset, the defendants Keshner and Keshner, Inc. withdrew their answer and voluntarily defaulted, and the case proceeded against defendants Berebitsky and Katz alone as to the issue of liability. The jury awarded damages of $50,000 to Daggett and $35,000 to Phelan against the Keshner defendants, but was unable to come to an agreement as to the liability of Berebitsky and Katz. The court held that the amount of damages had been established for all defendants by the jury verdict as to the defaulting defendants, and directed a new trial restricted solely to the issue of the liability of Berebitsky and Katz (Daggett v. Keshner,
The testimony adduced on both trials fully substantiated the allegations of the complaint, and provided an adequate basis for the recovery. It was established that in 1951 Keshner, who operated the Keshner, Inc. factory in a loft building in Manhattan, wоrried about his failing business, conceived the idea of having a fire to collect on his insurance policies. For this
On July 21, 1951 Weiss, whom Berebitsky and Katz knew well, came to their garage in Brooklyn and purchased 33 gallons of gasoline, 13 of which were pumped into the automobile gas tank and the balance into four 5-gallon cans. This was in violation of section C19-53.0 of the Administrative Code, since Weiss did not hold a purchase permit. Berebitsky entered the transaction in the books but falsified the records to conceal the fact that the sale had been made to Weiss. The sale was never reported to the Fire Commissioner as required by the code.
On August 31 Weiss returned to appellants’ garage with Shapiro and purchased 42.6 gallons from Katz. The gasolinе was put in nine or ten 5-gallon cans. The cans were put in cartons in Weiss’ car, which was left in the garage with Katz’ consent. It was decided not to set the fire that night, and a few days later Weiss returned to the garage where one of appellants’ employees took the cartons out and stored them in a locker covered with a painter’s drop cloth. The next day, as Berebitsky watched, the cartons were loaded into the Keshner car. On September 10 the car was driven to Keshner’s loft building. The cartons were brought up to the fifth floor where the gasoline was poured into a 55-gаllon oil drum and then emptied by means of fire buckets and splashed all over the premises. Keshner then drove off but was apprehended by detectives who had been keeping Weiss and Shapiro under surveillance. Keshner told them of the arson plan and Detectives Phelan and Daggett went uр to the fifth floor and apprehended Weiss and Shapiro. As they re-entered the loft to get Shapiro’s coat and shirt, the explosion occurred, killing Daggett, Weiss and Shapiro and injuring Phelan.
This evidence fully establishes the necessary causal connection between the violation of the statute and the injuries sustained in the explosion. It was the gasoline which appellants illegally sold in quantity to an unlicensed purchaser of criminal reputation which was used for the arson attempt. Appellants’ violation of the statute cannot be dismissed as a mere oversight, for they indicated a guilty knowledge when they falsified the records as to the identity of the purchaser. They also failed to report the sale to the Fire Commissioner. The jury had ample basis for finding at the least a reasonable or practical connection between appellants’ noncompliаnce with the statutory provisions and the disaster which ensued. Their illegal sale of the gasoline was certainly a facilitating cause of the accident,
“ Had the garage owners reported the sales to the fire commissioner, the authorities would have been on notice. Had the garage owners required a permit for the transportation, storage, sale or use of the gasoline, the sale would not have been made. Had the conspirators sought a permit (a hardly conceivable occurrence), the authorities would have been on notice. The safeguards of the statute, if followed, would have frustrated this conspiracy and obviated death and injury” (Daggett v. Keshner,
Although the question of the statutory liаbility of garage operators for violations of the Administrative Code was considered fully on the prior appeal dealing with the sufficiency of the complaint, the Gulf Oil Corporation has submitted a brief as amicus curiae which urges different grounds in support of the contention that the violations here involved dо not constitute any basis for statutory liability, and that the common-law requirement of a showing of proximate cause is still applicable. Section C19-153.0 (ch. 19, tit. C) of the Administrative Code of the City of New York expressly provides for criminal and civil liability in the event of a violation of the provisions of ‘‘ this title ’’. It was the provisions of section C19-53.0 of title C which were violated. Nevertheless, it is urged, the Administrative Code of 1937 purported to be merely a codification of existing law, and could not serve to enlarge liability and create new liabilities which did not exist prior to the codification (L. 1937, ch. 929, §§ 1-0.0, 982-1.0, 983-1.0; Stein v. Pershing Square Bldg. Corp.,
The liability provisions of section C19-153.0 are derived from section 767 of title 3 of the Greater New York Charter of 1901 (L. 1901, ch. 466), which title, while dealing with the requirements of licenses for sellers, contained nо provisions prohibiting nonfuel tank sales to purchasers without permits or requiring reports of such sales to the Fire Commissioner. These provisions, now embodied in section C19-53.0, had their origin in section 295 of the Regulations of the Municipal Explosives Commission of the City of New York, and were then enacted аs ordinances (Cosby’s Code of Ordinances of the City of New York, 1914, 1915; Ash’s Greater New York Charter, § 765). These ordinances contained no provisions dealing with civil or
The argument of the appellants that no sufficient connеction was shown between their acts and the explosion, because the conspirators might have obtained the gasoline elsewhere if they had refused to make the sales, is untenable. What might have occurred under a different set of circumstances will not suffice to relieve appellants of the consequences of what actually did occur. Indeed, the evidence adduced could sustain a much greater burden than plaintiffs are required to bear under the statute. The evidence as to appellants’ knowledge of the purchaser’s character and identity, thе large quantity of gasoline purchased in containers, the concealment of the sale on the books, and the unimpeded use of the garage as headquarters for storage and transfer of the gasoline, might well be sufficient to sustain the inference that appellants knew or should havе known that the gasoline was not to be used by Weiss on a ‘ ‘ fishing trip ’ ’, as they claim he told them, but for arson.
The action of the first trial court in directing a new trial restricted solely to the question of appellants’ liability calls for comment. At the first trial the court correctly charged that the Keshner defendаnts having defaulted, the jury should decide the damages of the plaintiffs as against them, and then go on to decide whether there was any liability on the part of the defendants Berebitsky and Katz. It charged that the rule of damages would be the same as to all defendants found liable. The jury was not asked for а special verdict or for special findings on specific questions of fact.
After eight hours of deliberation the jury reported that they were unable to agree. The court asked whether they had found a verdict against the Keshner defendants. The jury reported that they had and in the action аgainst Keshner and Keshner, Inc. reported an award of $50,000 to plaintiff Daggett and $35,000 to plaintiff Phelan. They reported that they were unable to reach agreement as to Berebitsky and Katz. The
Where there has been disagreement as to one or more, but not all, of the issues submitted to the jury, section 463 of the Civil Practice Act permits the court in its discretion to direct a retrial limited to issues on which the jury disagreed. This prеsupposes some specific findings by the jury. On the first trial, however, no verdict at all was rendered against defendants Berebitsky and Katz. So far as they were concerned, the trial was a nullity (Reade v. Halpin,
Appellants argue that in thus being forced to a new trial limited to the question of liability, they were deprived of their right to contest the quantum of damages assessed by the jury in the first trial. However, after argument the parties stipulated that appellants would waive any claim of error in the order limiting the issues on the second trial upon a reservation of their right to argue whether the damages awarded on the first trial were excessive. We find no excessiveness in the verdict of $35,000 for plaintiff Phelan, who was severely burned on the head, face, eyes, neck, back, arms and legs. He was hospitalized for over a month and confined to his home for three months thereafter. He was retired from the Police Department on a certificate of permanent disability. He reсeived permanent scars and burns, loss of wages and interruption of his career.
The award of $50,000 to plaintiff Daggett, for the death of his son, does appear to be excessive. At the date of decedent’s death the father was 63 years of age and a widower who occupied an apartment with his son, whose earnings were $4,900 yearly. There was no proof as to the amount the decedent contributed to the support of his father. In view of the father’s
Breitel, Rabin and M. M. Frank, JJ., concur.
Judgment in favor of plaintiff Phelan affirmed, with costs, and the judgment in favor of plaintiff Daggett reversed, on the ground of excessiveness of the award, and a new trial ordered, with costs to abide the event, unless plaintiff stipulates to accept $25,000, plus interest from the date of decedent’s death, in which event it is affirmed, as modified, without costs.
Settle order.