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Abramsky v. Felderbaum

Decided: October 22, 1963.

JACK ABRAMSKY, PLAINTIFF-APPELLANT,
v.
ERVIN FELDERBAUM, MARTIN GANS, MARTIN FELDERBAUM, ESSO STANDARD OIL COMPANY, ETC. AND ENGCO BOTTLED GAS CORPORATION, ETC., DEFENDANTS-RESPONDENTS



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.

Collester

Plaintiff Jack Abramsky appeals from a judgment of the Law Division entered following a jury verdict of no cause for action in favor of the defendants Esso Standard Oil Company (Esso) and Engco Bottled Gas Corporation (Engco). The complaint had also named Ervin Felderbaum, Martin Gans and Martin Felderbaum as defendants, but being non-residents they could not be served with process in this State. Thus, they are not involved in this action. A separate action was instituted against them in New York, to which reference is hereinafter made.

Plaintiff makes no contention that the verdict was against the weight of the evidence, but asserts that five rulings of the trial court were erroneous and warrant the granting of a new trial.

Plaintiff rented one residential unit in a bungalow containing two apartments at Mt. Freedom, New Jersey for the summer of 1957 from Messrs. Felderbaum and Gans. The latter had leased the bungalow colony that particular summer from Samuel Lipkin, the owner. The other apartment in the

bungalow was occupied by a Mrs. Teich, a daughter of Mr. Lipkin.

The building had a partial cellar which was somewhat below ground level. In this cellar were stored old mattresses, pillow cases, bed springs and other debris. Plaintiff testified that on his first visit to the cellar at the end of May 1957, and on other visits during the period of his tenancy, he noticed a foul, unpleasant and disagreeable odor, which was sometimes more noticeable than others, and which plaintiff associated with changes of the weather.

Also in the cellar were two water heaters, one for each apartment, fueled with liquid propane gas which was supplied from a tank outside the building, connected by copper tubing to the water heaters in the cellar. The tank of propane gas was supplied by Engco, which in turn purchased the gas from Esso.

On the evening of August 16, 1957 plaintiff spoke to Mrs. Teich about a foul odor he noticed in the cellar. She assured him that everything was all right; that she had been going down there for more than 25 years and nothing was wrong. On the following morning, August 17, 1957, the plaintiff opened the cellar doors outside of the bungalow, descended the steps to the cellar floor, and bent down and struck a match to light the water heater for his apartment. As he did so an explosion occurred, causing plaintiff to sustain injuries. He sued Esso and Engco for damages, alleging the explosion was caused by their negligence.

The plaintiff's theory of liability as to Esso was limited to its alleged failure to properly odorize the propane gas to provide a warning in the event of leakage. His theory of liability as to Engco was two-fold in character, namely, (1) that the propane gas supplied by Engco was not odorized or was inadequately odorized, and (2) that Engco negligently supplied gas to a patently defective appliance improperly installed (by others), or to a patently dangerous appliance.

There was testimony at the trial from which the jury could find that neither corporate defendant had violated any duty

owing by either of them to the plaintiff. There was evidence that ethyl mercaptan is an accepted and recommended odorizing element for liquified petroleum gas. The odor of gas containing this substance is disagreeable, unpleasant and foul, and is intended to be so in order to give adequate warning. There are established limits of combustibility within known percentages of a mixture of gas and air at which the propane and air will ignite. The infusion of a sufficient amount of ethyl mercaptan in the gas will give an odor which will be detected before there is a sufficient amount of propane in the air to reach the level at which it will ignite. Esso established by evidence that one pound of ethyl mercaptan per 10,000 gallons of liquified petroleum gas, including propane, meets the requirements for the proper odorization of liquified petroleum gas and propane, and that the shipments from Esso to Engco, including the cylinder involved in this occurrence, contained the required addition of ethyl mercaptan at the rate of one pound per 10,000 gallons.

As to Engco, there was conflicting testimony as to whether Engco breached its duty in connecting the gas supply to patently defective or dangerous appliances. In view of this conflict, the matter was left properly for the jury.

With this background we now consider the particular claims of error.

I.

Plaintiff's first contention is that the trial court erred when it refused to charge three requests submitted by the plaintiff which, in substance, were: (1) propane gas is an extraordinarily dangerous element; (2) gas being an extraordinarily dangerous element, an extraordinarily high degree of care and skill is exacted; and (3) the circumstances of the case required defendant Engco to exercise a degree of care which comprehends a circumspection, a foresight, a prevision, which has due and proper regard to reasonably probable contingencies as to whether this was a proper place of installation, and as to the use of other precautionary measures.

Plaintiff's counsel made the following objection to the court's charge:

"I take exception to those portions of your charge where you have charged that the defendants or cither of them or both of them owe a duty of reasonable care to the plaintiff. It is my understanding that the duty is a high degree of care commensurate with the circumstance and that the duty owed is one of using circumspection, foresight and pre-vision."

It will be noted that plaintiff's counsel did not comply with the strict injunction referred to in Williamson v. Berger , 11 N.J. 500, 505 (1953), relating to R.R. 4:52-1, in that he did not refer in his objection to the specific requests to charge which he had submitted and which the court had failed to charge. The rule requires specificity in order that the trial judge may be clearly apprised of the objection presented. Tennessee Gas Transmission Co. v. Maze , 45 N.J. Super. 496, 506 (App. Div. 1957). However, since the objection presented goes to ...


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