Opinion
Jan. 21, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Yegge, Hall & Evans, James R. Benson, Jr., Denver, for plaintiffs-appellants.
No Appearance for defendant-appellee.
PIERCE, Judge.
Plaintiffs, under their subrogation rights, brought suit against defendant to recover sums paid to their policyholders pursuant to the terms of an insurance policy. The trial was to the court which rendered a judgment in favor of defendant. We reverse.
The undisputed facts established by the evidence are as follows: Plaintiffs' policyholders owned an apartment house. Sometime before the incident in question, there had been a gas leak in a kitchen range in one of the apartments. The Public Service Company was called, repairs were made, and there were no further reports of gas odor. Two witnesses testified, without objection that at the time of the repairs one of the repairmen had indicated that a flexible connection from the lead-in pipe to the range might be preferable to the copper connection that was used.
Thereafter the defendant volunteered to paint the apartment for the tenant. The defendant was aware that there had been a previous leak in the gas stove. He observed the copper connection and was aware that the proper procedure was no shut off the gas before he attempted to move the stove. He decided to pull the stove out from the wall so that he could reach the valve and so that it would be more convenient to paint behind the stove. He had pulled it eight inches away from the wall when the connection broke. He did not smell the gas but could hear it hissing. Before he could take any action to shut off the escaping gas, the pilot light from the stove ignited the escaping fumes and a fire ensued which occasioned the damage for which recovery is sought. There is no evidence that the owners knew he would be painting the apartment.
The trial court concluded from the undisputed testimony that defendant was not negligent. Although there is no testimony in the record regarding inspection or lack of inspection of the premises by the insurers, the trial court apparently determined that the sole proximate cause of the explosion was the failure of the insurance companies to inspect the premises at the time the policy was issued. It also concluded that there was some fault on the part of the apartment owners, but did not detail their negligence other than to indicate that, in the court's opinion, a flexible connection should have been used.
Where there is no dispute in the evidence, an appellate court is not bound by the fact determination of the trial court and may make an independent ruling regarding the conclusions of law which follow from the undisputed evidence. American National Bank v. Christensen, 28 Colo.App. 501, 476 P.2d 281. The factual conclusions reached by the trial court in this case are manifestly against the weight of the evidence as are the legal conclusions based on them. See Archuleta Mercantile Co. v. Archuleta, 62 Colo. 512, 163 P. 964; Crowley v. Shepard, 38 Colo. 345, 88 P. 177. Not only were the actions of the defendant unreasonable and imprudent, they were a proximate cause of the explosion. They constituted an independent intervening act which could not have been reasonably anticipated by the landlords or their insurers. The negligence of the plaintiffs or their insureds, if any, was only a condition which made it possible for defendant's negligent acts to cause the explosion. Defendant's actions were, as a matter of law, the sole proximate cause. Stout v. Denver Park & Amusement Co., 87 Colo. 294, 287 P. 650; Town of Lyons v. Watt, 43 Colo. 238, 95 P. 949.
Since the negligence of only one party was the proximate cause of the injuries, we need not remand this case to the superior court for consideration of any comparative negligence. Powell v. Ouray, 32 Colo.App. 44, 507 P.2d 1101.
Because of our disposition of this case, we will not discuss the other allegations of error raised by plaintiffs.
Judgment reversed and the cause remanded for determination of damages and entry of judgment for plaintiffs.
SMITH and KELLY, JJ., concur.