DOW v. BLEDSOE (1957)

This is an action for damages for the death of the husband of Leona Dow and of two of their children, which occurred through asphyxiation from carbon monoxide emitted from a wall heater in their home.

This house was built by the defendant Bledsoe, a general contractor, between September, 1950 and February, 1951, under a contract with a Mr. Muth. Bledsoe prepared the plans and specifications for the house, which called for the installation of two 25,000 B.T.U. wall heaters, the one in the living room to be thermostat-controlled and the other in the hall to be manually controlled. Bledsoe entered into a written contract for the installation of the heaters with one Dover, who was a licensed plumbing contractor and a franchise dealer for the Holly Manufacturing Company. Dover purchased two heaters from the Holly Company which were installed in the house by his employees. It appears that a device known as a ‘Secondary Heat Exchanger’ was installed in the walls immediately above these heaters, and between them and the vents which led to the roof. These were supposed to further heat the air by the passage of the products of combustion up the flue, and a grill was installed near the ceiling to let the air thus heated into the house. These secondary heaters and the portions of the installations above the heaters themselves were installed first, after the studding was up, and were observed by Bledsoe. The inspection department of the city of San Diego inspected the house while the secondary heaters and vents were still visible. The heaters themselves were installed early in February, 1951, when the house was completed or practically completed. Bledsoe then examined the heaters only to see ‘that the heater is there and complete, that the face pieces fit properly, that they are connected to the gas line, and that the American Gas Association seal is on the heaters'. He was not advised to make any changes after the final building inspection by the city.

Mr. Muth sold the house to a Mr. and Mrs. Petty who occupied it without notice of any malfunction from April, 1951 to May, 1953, when they sold it to the Dows. The Dows used the heaters when necessary from September, 1953 until January, 1954. On January 15, 1954, Mrs. Dow left for Kanesas, taking Richard who was then two years old. She returned on January 26 and found all the doors and windows of the house shut. When the house was opened the air was found to be very hot and there was little oxygen. The wall heater in the living room was off, but the wall heater in the hall was burning. Mr. Dow and the other two children were found in the house, all dead by asphyxiation from noxious fumes given off by the hall heater.

Mrs. Dow brought this action for herself and on behalf of her minor son, naming as defendants the Holly Manufacturing Company, the maker of the heater, and Bledsoe the general contractor who built the house. Dover, the plumbing contractor was not sued, apparently because he had gone through bankruptcy.

At the trial ample evidence was introduced to show a faulty installation of the hall heater and its attachments, which would be more dangerous because it was not automatic and would not shut itself off when a certain temperature was reached. Bledsoe testified that the specifications did not call for installation of secondary heat exchangers; that he prepared the specifications for the hearter vents and flues, but in doing so did not take into consideration the use of secondary heat exchangers; and that he did not change the specifications in regard to the vents when he saw the secondary heat exchangers in place. An expert witness testified that an examination of the hall heater disclosed very heavy carbon monoxide pouring out through the top grill into the room; that the hall heater was over firing to about 33,000 B.T.U.'s to 35,000 B.T.U.'s; that a sooting-up in the throat near the down draft divider was progressing from the start and increasing the longer the heater was used; that as soon as the sooting became heavy in the throat carbon monoxide was coming out; that in a properly operating heater the product of combustion will go up the stack; that in a sooting heater the products of combustion will split off and come back through the hole and into the room; that the orifice of the hall heater was too large and allowed too much of a flow of gas; and that a reduction of the flue pipe from the top of the heater as it sooted up would cause the products of combustion to spill more into the room.

Another expert testified that when he first saw the hall heater after the tragedy there was a yellow flame which was burning ‘out’ by virtue of the fact that the heat exchanger was filled with soot; that as he found the heater in the Dow house the appliance would be only partially vented; that a substantial portion of the products of combustion would spill out the relief opening of the draft hood; that as the heater overfires it becomes more of a hazard; that the spilled products of combustion would go into the space being heated; that this overfired heater spilled carbon monoxide into the room because the draft hood for this type of appliance is designed to work with a 4-inch vent and not with a secondary heat exchanger, which is roughly half that size in cross sectional area; and that it is not good engineering practice to construct a vent such as this with a secondary heat exchanger and this type of heater in the same unit. The effect of his testimony is that the secondary heat exchanger and reduced vent were causation factors of the sooting. A field inspector for the American Gas Association testified that manufacturers were authorized to use their seal on appliances which were exactly like those submitted to the association for testing; that this hall appliance had never been submitted to them for approval when equipped with a secondary heat exchanger, and no such approval had ever been granted; that the header plate found on the appliance was not the approved type as the approved one had almost twice the cross sectional area; that the addition of the heat exchanger would constrict the passage of flue products up the vent so that they would seek some other path of discharge; that the addition of the heat exchanger retarded the flue products to the extent that they would spill from the relief opening of the draft hood; and that in putting the installation together the outlet from the draft had been ‘crimped’, substantially reducing the cross sectional area and imposing an additional restriction on the passage of roducts that would normally flow through the vent. There was also evidence that the secondary heat exchanger was a new device recently put out by the Holly Company and designed for use with a different type of heater; that this heater had a double orifice or opening for the admission of gas into the heater; that the single orifice was supposed to have been size No. 42 DMS while the two holes here found were 46 DMS; and that the interior of this installation was found to be very badly sooted up.

A jury returned a verdict of $20,000 in favor of Mrs. Dow for the deaths of her two children, and in favor of both plaintiffs in the sum of $50,000 for the death of the husband and father. The verdict was against the defendant Bledsoe only. A motion for a new trial was denied, and Bledsoe has appealed from the judgment entered on this verdict.

The appellant contends that he had nothing to do with the installation of these heaters; that this was entirely the work of his independent contractor, Dover, and he is not responsible for Dover's torts; that the evidence estiblished beyond question that Dover was an independent contractor; that there was no evidence showing negligence upon appellant's part; and that the court erroneously excluded evidence proving that Dover was an independent contractor. It is argued that the sole cause of the trouble that occurred was the double orifice allowing too great a flow of gas into the heater; that this defect was concealed and could not be seen by the appellant; that he saw to it that the installation was complete and saw the seal of the A.G.A.; that the building was inspected and passed by the city building inspection department; and that there is nothing to show any negligent work on his part, or any failure to do anything that he should have done.

The appellant recognizes that there is an exception to the general rule that a contractor is not liable for damages to third persons caused by defective construction after his work is completed and accepted by the owner. Under this exception a contractor may be liable if the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons, provided he knows or should know of the dangerous situation created by him and the owner does not know of the dangerous condition or defect and would not discover it by reasonable inspection. Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 183; Johnston v. Long, 56 Cal.App.2d 834, 133 P.2d 409. It is argued, however, that he himself did no work which created any dangerous condition and that there is no evidence that he knew or should have known of any defect in the installation of this hall heater, including the secondary heat exchanger and the vents or flues. While the appellant is not liable for any negligence on the part of his subcontractor, Dover, he may nevertheless be held liable for his own personal negligence if any such negligence is disclosed by the evidence. The work here done by Dover was a part of the work which the appellant had agreed to do under his general contract. Although the installation of the heater was done under a subcontract, the appellant had some responsibility to see that the entire work he had contracted to do was properly done. It appears beyond question that this part of the work was not properly done, and the real question is whether the appellant knew or should have known of the dangerous condition or situation which was thus created. The controlling question is whether the evidence, with the inferences which reasonably may be drawn therefrom, is sufficient to support a finding against him on that issue.

Apparently, the presence of an orifice which was too large and which allowed too great a flow of gas into the heater was one cause of the improper functioning of this heater. This was not the sole cause, however, as shown by the evidence that the secondary heat exchanger and the manner of its installation substantially reduced the available size of the vent or flue to the roof, and eventually caused the sooting-up of the interior and the diversion of the noxious gases into the house itself. The appellant saw the secondary heat exchanger, and the rest of the installation above the heater itself, before they were enclosed in the walls. He knew that they were not in accordance with his specifications and that he had not taken them into consideration in preparing the specifications. Without changing the specifications he permitted a considerable variance in the vent size, and the installation of an open grill into the room which would be affected thereby. He had prepared the specifications calling for a direct flue or vent from the heater itself to the roof, and it should have been apparent to him that the installation of these additional appliances would affect the discharge of the products of combustion through the direct flue otherwise provided for. Such installations placed between the heater itself and the flue outlet on the roof would naturally obstruct the flue to some extent, and call for a reexamination of the specifications for the size of the flue and vent. It appears that a substantial reduction in the usable size of the flue or vent was thus caused, which had an important effect upon the sooting-up which thereafter occurred. The fact that such a secondary heat supply was installed, with another outlet into the room, would naturally call for an investigation as to whether the provision for vents or flues to the roof was adequate. The fact that the appellant saw these things before they were concealed in the wall was sufficient to call these matters to his attention and it cannot be said, as a matter of law, that he was entitled to ignore them or that he was under no duty to see that proper provision for vents was made. With respect to the heater itself, he testified that he looked at it after it was installed only to see that the face pieces fitted properly, that it was connected with the gas line, and that it had the seal of approval of the A.G.A. and that he did not notice whether it was a 25,000 B.T.U. or any other size. Although the heater in the living room was marked 25 in one place and 35 in another, he testified that he ‘did not notice’ whether the hall heater was a ‘25,000 B.T.U., or any other size.’ It appears from the record that the parts of this installation were not designed to go together and that the connection on one part had to be ‘crimped’ in order to go into another part, which further interfered with the direct flue line and added to the reduction of the usable size of the flue. Also, there is evidence that there were ‘patches' on the hall heater, the reason for which does not appear. From all of these facts it might reasonably be inferred that the appellant failed to do all that could reasonably be required of him in connection with the installation of this heater, especially in view of the fact that he knew that his specifications were not being followed. No good reason appears why he could not have made a reasonable examination of the installation in the wall before it was covered up, or why he should not have made some examination of the heater itself before or at the time it was installed some months later. He had agreed to deliver a fully completed house, it was his duty to have that house well constructed insofar as called for by the plans and specifications, and the record indicates that the house would have met that requirement if the specifications for the installation of these heaters had been followed. While he did not do the faulty part of the work himself it was his duty to see that that portion of the work was done right. While some of the defects may have been hidden, he could readily have seen others and could have required changes or at least have reported the new and unusual condition he saw in order to have a proper investigation made. The evidence was sufficient to justify an inference that the appellant knew or should have known that a dangerous situation was being created which would be unknown to the owner or occupants of the house, and which they could not discover by a reasonable inspection. It cannot be said, as a matter of law, that the appellant was free from personal negligence.

The appellant further contends that the court erred in excluding certain evidence going to show that Dover was an independent contractor. It is argued that it was proved that the written contract between Bledsoe and Dover was lost, and that the court erred in excluding evidence as to the terms of this contract and as to whether Dover believed himself to be an employee of Bledsoe. Objections to questions in that connection were sustained.

The appellant testified that he had a written contract with Dover and that he had made a search for it and could not find it; that he did not purchase or furnish these heaters or any of the materials for the heating job; that he supplied no tools to the men who did the work; that he did not pay any of the men who installed the heaters; that he did not choose what men were to install the heaters; and that he did not tell them what hours to work. He also introduced two checks to Dover, which were cashed by him, one marked part payment on contract and the other as final payment. Dover testified that he had a contract with Bledsoe, but did not say it was in writing. He also testified that he had made a search for any records in connection with this deal and that he was unable to find any. However, he testified that he had some fifteen men working for him, that some of his men did this work, that he carried a Workmens' Compensation policy on the men, and that he made Social Security deductions from their wages. The terms of the contract sufficiently appeared from the evidence, and all of the testimony received was to the effect that Dover installed these heaters as a subcontractor. To have permitted answers to these questions to which objections were sustained would have added nothing material and any possible error in this connection could not have been prejudicial.

In this same connection, the appellant points out that the court instructed the jury that Dover was presumed to be the defendant's servant and that the defendant had the burden of proving that Dover was an independent contractor. After the general instructions and instructions applicable to liability of the manufacturer of such an appliance, the court told the jury that the fact that one is performing work for another is prima facie evidence of employment and such person is presumed to be a servant in the absence of evidence to the contrary; and that after the plaintiffs here established a prima facie case the burden shifts to the defendant Bledsoe, who then may prove if he can that Dover was an independent contractor. The court then stated the difference between an employee and an independent contractor, and told the jury that it was for it to decide whether Dover was either. The court then told the jury that, as an exception to the general rule, a contractor may be liable if the work turned over by him is so negligently defective as to be imminently dangerous to third persons, provided a contractor knows or should know of the dangerous situation created by him and the owner does not know of such dangerous condition or defect and would not discover it by reasonable inspection. Immediately thereafter, the court instructed the jury that ‘Before you may hold said defendant Bledsoe liable there are certain findings you must make and they must be supported by a preponderance of the evidence,’ and that these findings are: that the work done in the installation of the heater was so negligently done as to be imminently dangerous to third persons; that the defendant Bledsoe knew, or in the exercise of ordinary care would have known of the defective condition and its incident danger; that the accepting owners did not know of the defective condition and would not have discovered it by reasonable inspection in the exercise of ordinary care; and that said defective condition was a proximate cause of the injury of which plaintiffs complain.

While the court told the jury that it was for it to decide whether Dover was either an agent of Bledsoe or an independent contractor, it cannot be assumed, in the absence of any evidence to support such a finding, that the jury found that Dover was Bledsoe's employee and not an independent contractor. Viewing the evidence and the instructions as a whole, it cannot be held that any prejudicial or reversible error appears in this connection. The controlling question was one of fact for the jury, and the evidence was sufficient to support the verdict.

The judgment is affirmed.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.