Opinion
February 8, 1952. Rehearing Denied June 13, 1952.
Appeal from Jefferson Circuit Court, Common Pleas Branch, First Division; Roscoe Conkling, Judge.
Louis Brownstein, Louisville, for appellant.
Davis, Boehl, Viser Marcus, Louisville, for appellee.
The original petition in the case of Kays v. Fisher, Ky., 250 S.W.2d 329, this day decided, was to recover for damages to property allegedly caused by fire originating from an oil furnace purchased from appellee in that action. The action was based upon alleged breach of implied warranty as to fitness.
Appellee in that action filed a cross-petition against Florence Stove Company, manufacturers of the stove, in which Florence Stove Company was called upon to defend the action and to hold the Milton Fisher Company harmless. Motion was made by the Florence Stove Company to quash the return of service of process. This was overruled. Motion was then made to strike the cross-petition, which also was overruled. After trial, Florence Stove Company filed motion for a directed verdict as to it which was sustained.
Having affirmed the judgment in Kays v. Fisher, it becomes unnecessary to enter into a discussion of the questions raised by appellee herein, since appellee in brief says: "The result of the trial below in dismissing Florence Stove Company from the suit was correct, regardless of the method by which it was reached, and the judgment below as to Florence Stove Company should, therefore, be affirmed. Had the result of the case been adverse to Florence Stove Company, it would have come to this Court, urging the error of the trial court in permitting such a cross-petition to be filed against it."
The judgment is affirmed.