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Utica Mut. Ins. Co. v. Amsterdam Color Works, Inc.

Supreme Court of New York, Appellate Division

June 21, 1954

UTICA MUTUAL INSURANCE COMPANY, Individually and on Behalf of JOSEPH WEISS, Respondent,
AMSTERDAM COLOR WORKS, INC., Appellant, et al., Defendant.

Page 377

APPEAL from a judgment of the Supreme Court in favor of plaintiff and against defendant-appellant, entered June 4, 1953, in New York County, upon a verdict rendered at a Trial Term (COHALAN, J.).


Benjamin H. Siff of counsel (John Tullman with him on the brief; Frederick Mellor, attorney), for appellant.

Jacob D. Fuchsberg of counsel (B. Hoffman Miller with him on the brief; Jacob D. Fuchsberg, attorney), for respondent.

Per Curiam.

On August 29, 1945, one Joseph Weiss was employed by the defendant, Weihs, and was injured when a drum upon which the employee was working with an acetylene torch exploded. The employee elected to take benefits under the Workmen's Compensation Law and the plaintiff brought this action as subrogee. It has recovered a verdict from a jury in the sum of $35,000 against the defendant, Amsterdam Color Works, Inc. (hereinafter referred to as 'Amsterdam'), which appeals from the judgment entered thereon. Amsterdam cross-complained against the defendant, Franz Weihs, the employer of the injured employee. The cross complaint was dismissed and Amsterdam's appeal from that decision has been discontinued.

Amsterdam was a manufacturer of paint. In its business it used steel drums, approximately thirty-six inches high and eighteen to twenty-two inches in diameter. Weihs, the employer of Weiss, operated an iron shop and made architectural iron products for use on buildings. The jury could have found that during the period from 1942 or 1943 to the date of the accident in 1945, Weiss, at the request of Amsterdam, on six or eight occasions had cut drums in half by use of an acetylene torch. The two halves of a drum were then used as tubs in Amsterdam's plant.

On the day of the accident Amsterdam sent a drum to Weiss's place of employment. Weiss thereafter 'just touched it with the [acetylene] torch, and it exploded'. Weiss admitted that he knew it was standard practice in cutting a steel drum to fill it with water or to flush it with steam before applying to the

Page 378

drum the torch burning at between 5,000 and 6,000 degrees temperature, Fahrenheit. He took neither of these precautions. Neither did the employee unscrew or remove the cap from the hole in the head of the drum or look therein.

The plaintiff's claim of negligence on the part of Amsterdam is to a large extent predicated upon a conversation Weiss claimed to have had with one Offerman, an officer of Amsterdam, before the first drum was cut in 1942 or 1943. It is thus briefly given in his testimony: 'So I asked him [Offerman] if the drum is clean, and he says, 'I will assure you, if I bring any drum in here, it will be perfectly clean. Don't worry about it.' And so I went ahead and cut it.' Thereupon, Weiss cut the drum and during the ensuing years he claims he cut the other drums relying upon this representation.

Upon the trial certain provisions of the Administrative Code of New York City were received in evidence. It was provided therein that 'It shall be unlawful to operate a blow-pipe or other similar device or apparatus for heating, melting or welding, without a certificate of fitness' and further, that 'It shall be unlawful to use oxygen in combination with a combustible gas, in or through a blow-pipe or other similar device, for heating, melting or welding, without a permit' (§ C19-93.0, subds. b, c). It was further provided that to obtain a certificate of fitness an applicant must, among other things, 'pass an examination, by a person or body designated by the [fire] commissioner * * * upon the risks incident to his employment, and upon his knowledge of the precautions necessary to be taken in connection therewith' (§ C19-14.0).

It was stipulated upon the trial that at the time Weiss used the acetylene torch involved in the accident, he did not have a certificate of fitness and had not complied with any of the stated requirements of the code. He admitted he had never taken any examination given by the fire commissioner. The trial court charged the jury that the failure of Weiss to have the necessary permit or certificate made him guilty of contributory negligence but left it to the jury to determine whether such violations were the proximate cause of the accident. This portion of the charge we view as erroneous ( Corbett v. Scott,243 N.Y. 66; Phass v. MacClenathen,274 A.D. 535). We treat the incorrect charge as harmless, however, because implicit ...

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