Estate of Canale v. Binghamton Amusement Co.

Staley, Jr., J. The two actions are based on negligence which allegedly caused the destruction by fire of a building owned by plaintiffs, Canale, in Action No. 1, and damaged personal property of the plaintiff in Action No. 2 who was a subtenant in the building. Defendant Binghamton Enterprise, Inc. (hereinafter called Enterprise) was the main tenant in the building, and defendant George Miles was the president and sole stockholder of the corporation. Binghamton Amusement Co. (hereinafter called Amusement) through its employee, James Curran, allegedly attempted to repair a gas furnace, and his alleged negligence in such repairs allegedly was the cause of the fire that destroyed the building. The verdict in favor of plaintiffs in Action No. 1 apportioned the damages on the basis of 25% against Enterprise, 65% against Amusement, and 10% against Curran, and in Action No. 2 on the basis of 25% against Enterprise and 75% against Amusement. The issues raised on these appeals are (1) that the evidence was insufficient to establish the proximate case of the fire and any liability therefor; (2) that the trial court erred in its charge to the jury with respect to damages in Action No. 1; (3) that plaintiffs’ attorney made prejudicial remarks in his summation; and (4) that the verdicts, particularly in Action No. 1, were inconsistent. The record contains much conflicting testimony concerning the events prior to the outbreak of the fire and the actions of the individual defendants. In our opinion, there is sufficient evidence from which the jury could properly find liability against Enterprise for failure to adequately supervise the premises under its control, or to correct a known dangerous condition, and also against Amusement for the negligent acts of its [427] employee in the manner in which he attempted to repair the furnace which caused the fire. On the issue of the trial court’s charge as to damages in Action No. 1, the plaintiffs presented the only expert testimony on value of the building and damages caused to the property. The trial court, in its charge, totaled the items testified to by the expert witness, and then directed that the plaintiffs should be awarded such total sum if they were entitled to recover from any defendant. Amusement contends that since the lease of the property contained an option to buy the property for $18,000, the determination of total damages should have been left to the jury. The option clause was at best only some evidence of value and, in view of the fact that the only testimony on valuation and damages came from plaintiffs’ expert, his values were properly accepted by the court and jury. We also find that the remarks of plaintiffs’ attorney on summation, which are conceded to be partly inaccurate, were not so prejudicial as to require a new trial. On the issue of inconsistent or incorrect verdicts, we believe that the apportionment of damages in Action No. 1, where 65% of the damages was apportioned against Amusement, the employer, and 10% against Curran, the employee, was error. If a corporation is vicariously liable for the acts of its employee, there can be no unequal apportionment of liability between corporation and employee since there was bnt a single wrong. (Martindale v. Griffin, 233 App. Div. 510, affd. 259 N. Y. 530; Kinsey v. Spencer & Son Corp., 165 Misc. 143, affd. 255 App. Div. 995, affd. 281 N. Y. 601.) The trial court erred when it accepted that part of the jury’s verdict in Action No. 1 which made an apportionment between Amusement, the employer, and Curran, the employee. (Rogers v. Dorchester Assoc., 32 N Y 2d 553; Ann. 46 ALR 3d 820.) In Rogers v. Dorchester Assoc, (supra, pp. 565-566), referring to the rule in Dole v. Dow Chem. Co. (30 N Y 2d 143), Chief Judge Bbeitel stated as follows: “ It was hardly intended to overturn basic and satisfactory principles of common-law indemnification between vicariously liable tort-feasors and tort-feasors guilty of the acts or omissions causing the harm. In short, the apportionment rule applies to those who in fact share responsibility for causing the accident or harm, and does not extend further to those who are only vicariously liable, as the employer of a negligent employee, the owner of a motor vehicle operated by a negligent driver, or, as here, the owner of a building who contracts with an independent contractor exclusively responsible for maintenance of the building or parts of it.” [428] Under the circumstances here, the verdict of the jury which apportioned part of the damages in Action No. 1 between Amusement and Curran was clearly erroneous. However, in actions where the jury has erroneously apportioned damages, a verdict thus rendered is merely erroneous in form, and the court has the power to correct it, and the severance of the items of damage does not necessitate a new trial. (Kinsey v. Spencer & Son Corp., supra; Polsey v. Waldorf-Astoria, 216 App. Div. 86; cf. Brown v. City of New York, 40 A D 2d 785.) The verdict in Action No. 1 should be corrected to apportion damages on the basis of 25% against Enterprise, and 75% against Amusement and Curran. The money judgments appealed from were in favor of the plaintiffs against those defendants found to be liable. Where there has been an apportionment of damages between codefendants, the parties are entitled to enter a separate judgment setting forth the items of apportionment among the defendants liable. (See Practice Commentary by Professor David D. Siegel, McKinney’s Cons. Laws of N. Y., Book 7B, CPLR 3019.58, pp. 275-276.) In Action No. 1 the parties may enter a separate judgment apportioning damages on the basis of 25% against Enterprise and 75% against Amusement and Curran, and in Action No. 2, the parties may enter a separate judgment apportioning damages on the basis of 25% against Enterprise and 75% against Amusement. The other issues presented have been considered and found to be without merit. The judgments should be affirmed, with costs.