124 F.2d 494 (10th Cir. 1941), 2319, Theurer v. Holland Furnace Co.

Docket Nº:2319.
Citation:124 F.2d 494
Case Date:December 27, 1941
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 494

124 F.2d 494 (10th Cir. 1941)




No. 2319.

United States Court of Appeals, Tenth Circuit.

December 27, 1941

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[Copyrighted Material Omitted]

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M. C. Harris, of Logan, Utah (Arthur E. Cooley, of San Francisco, Cal., on the brief), for appellant.

Paul E. Cholette, of Grand Rapids, Mich., and A. W. Watson, of Salt Lake City, Utah (Geo. A. Critchlow, of Salt Lake City, Utah, on the brief), for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

H. A. Theurer, herein referred to as plaintiff, sued Holland Furnace Company, herein referred to as the company, for damages. Plaintiff owned and conducted a mercantile store in Lewiston, Utah. The company was engaged in the business of manufacturing, selling and installing heating furnaces. Plaintiff advised the company that he was in the market for a furnace to heat the store building, and that he was unfamiliar with the heating business; and he suggested that the company make a survey and submit to him a proposal to furnish and install a suitable furnace. After making the survey, the company submitted a proposal in writing, plaintiff accepted it, and it became their contract. It provided that the company should furnish and install the furnace, that it should do all cutting and carpenter work, that all new materials should be of the best quality, that the work should be done in a workmanlike manner, and that plaintiff should provide a good and sufficient chimney for receiving the smokepipe. Plaintiff employed a carpenter to build a stoker room on the rear of the store building and the base upon which the chimney should rest. He cut the hole in the wall through which the pipe should pass in reaching the chimney; but the company designated the place and size, and marked it on the wall. Plaintiff did not employ him to cut the hole, did not direct him to do it, and had nothing whatever to do with it. The opening was approximately sixteen by eighteen inches in size. Plaintiff also employed an experienced plasterer and chimney builder to build the chimney at an agreed price per foot. It was built on the outside of the building, immediately adjacent to the wall. No breastwork was corbelled into the chimney and projected into and through the opening in the wall. Instead, a row of bricks was placed in the opening resting on the rustic and lath of the wall, with the end toward the outside flush against the wall of the chimney. The company furnished the builder of the chimney with a thimble which he placed through the opening in the wall resting on the row of bricks positioned there, and he then filled around the thimble with pieces of brick and mortar thus filling the space between the periphery of the thimble and the upright studding and other material in the wall. The bricks were not mortised into the chimney; they were merely sealed to it with mortar and were not otherwise bound to it. The thimble was about nine inches in diameter; the upright studding in the wall was sixteen inches apart from center to center; and the space between the outside of the thimble and the studding was approximately two and one-half or three inches. Plaintiff complained that the furnace was not satisfactory. The company sent its representatives to the store for the purpose of adjusting it so that it would furnish adequate heat. They were there more than five hours testing and firing the furnace. As they were about to leave, fire originated in the wall immediately adjacent to the opening through which the smokepipe passed, the building was virtually destroyed, and most of the contents were either damaged or destroyed.

The complaint was in three causes of action. The negligence charged was in cutting such a small hole in the wall that the thimble was necessarily within approximately three inches of the studding, in failing to use a safety thimble or to protect the wall with asbestos or other shield, in heating the furnace to an excessive degree, and in failing to discover the fire and give warning in time to save the property. The company answered denying negligence, pleading contributory negligence in the construction of the chimney, and alleging that the property was insured, that the insurance company had paid plaintiff for the loss, and that he was not the real party in interest; and by cross complaint, it sought to recover the unpaid balance on the purchase price of the furnace. Plaintiff replied admitting that the property was insured, admitting that the insurance company had paid him $14,550.11, but alleging that such payment only partially

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covered the loss, and that the insurance company had assigned to him all of its claims and causes of action against the furnace company and authorized him to bring the suit in his own name to enforce them.

The court submitted the case generally to the jury. Two verdicts were returned, one for plaintiff in the sum of $2,700 and the other for the company on its cross complaint in the sum of $625. The court also submitted ten special interrogatories, two on its own motion, six on the request of plaintiff, and two on the request of the company. Such interrogatories and the answers thereto were respectively as follows:

'1. Was the plaintiff negligent in failing, on or prior to the date of the fire on December 26, 1939, to make inquiry of Mr. Lawrence to find out the nature and manner of the construction of the brick connection between the two studdings enclosing the thimble? Answer: Yes.

'2. Were the employees of the defendant negligent in failing to make inquiry of Mr. Theurer or of Mr. Lawrence to find out the nature and manner of this construction? Answer: Yes.'

'1. Did the plaintiff have actual knowledge of the defective construction? Answer: No.

'2. Did the agents of the defendant have actual knowledge of the defective construction? Answer: No.

'3. Was the heating plant properly designed and installed to heat this building? Answer: No.

'4. Was the defendant through its agents negligent on the date of the fire in so operating the furnace for a period of five and a half hours in an overheated condition as to negligently cause the fire? Answer: No.

'5. Were the agents of the defendant negligent on the day of the fire while operating the furnace, in failing to discover the fire in time to have sounded a warning and put it out and saved the building? Answer: Yes.

'6. If your answer to the last two questions in the affirmative, was such negligence of the defendant the proximate cause of this fire and damage? Answer: No.'

'1. Was the projection extending out from the chimney constructed by Mr. Lawrence through which the thimble passed, a part of the chimney? Answer: No.

'2. In the proper construction of a chimney should the projection through the wall in which the thimble was located have been built as an integral part of the chimney? Answer: Yes.'

After denying certain other motions, the court granted the motion of the company to set aside the general verdict in favor of plaintiff on his cause of action, granted the motion of plaintiff to set aside the general verdict in favor of the company on its cross complaint, and entered judgment that neither party recover anything from the other. Plaintiff appealed, the...

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