Schwartz v. McGraw-Edison Co.

• Citation: 66 A.L.R.3d 808,14 Cal.App.3d 767,92 Cal.Rptr. 776
• Decision Date: 27 January 1971
• Docket Number: GRAW-EDISON
• Court: California Court of Appeals Court of Appeals
• Parties: , 66 A.L.R.3d 808 Marion SCHWARTZ, a minor by her guardian ad litem Samuel M. Schwartz, Plaintiff and Appellant, v. McCO., a corporation, and Mary Anne March, Defendants and Respondents. Civ. 35818.

Page 776

92 Cal.Rptr. 776

14 Cal.App.3d 767, 66 A.L.R.3d 808

Marion SCHWARTZ, a minor by her guardian ad litem Samuel M. Schwartz, Plaintiff and Appellant, v. McGRAW-EDISON CO., a corporation, and Mary Anne March, Defendants and Respondents.

Civ. 35818.

Court of Appeal, Second District, Division 5, California.

Jan. 27, 1971.

Hearing Denied March 26, 1971.

Cummins, White & Breidenbach, and W. F. Rylaarsdam, Los Angeles, for plaintiff and appellant.

Brill, Hunt, DeBuys & Burby, and Henry E. Kappler, Los Angeles, for defendant and respondent McGraw-Edison Co.

Veatch, Carlson, Dorsey & Quimby, Frederick C. Quimby, Jr., and Henry F. Walker, Los Angeles, for defendant and respondent Mary Anne March.

FRAMPTON, ^* Associate Justice.

Statement of the Case

The minor plaintiff, through her guardian ad litem, by her second amended complaint, sought damages for personal injuries alleged to have been sustained when a gas heater set fire to her nightgown. She named as defendants McGraw-Edison Company, a corporation (hereafter McGraw), A. F. Thompson Manufacturing Co., a corporation (hereafter Thompson), The Eastern Isles, Inc., a corporation (hereafter Eastern), James H. Wolfe, individually and doing business as Youngland (hereafter Wolfe), and Mary Anne March (hereafter March).

According to the allegations of the second amended complaint, defendant Eastern manufactured the nightgown which in turn was sold by Wolfe; the accident occurred on premises owned by defendant March which had been leased to one Clayton Thompson. As will hereafter be shown, the defendant Thompson (the corporation) had manufactured the gas heater and had thereafter placed it in the channels of commerce. After the accident, McGraw purchased certain assets of defendant Thompson and had by written agreement assumed certain products warranties for which defendant Thompson was liable to its customers. Defendant Thompson was never served in the action. Defendants Eastern and Wolfe entered into a compromise and settlement of plaintiff's claims in the sum of $131,250 and were dismissed from the action.

A jury was impaneled and sworn to try the cause. At the conclusion of the opening statement by plaintiff's counsel, defendants McGraw and March moved for a non-suit and dismissal of the action. The motions were granted. The appeal is from the judgment of dismissal.

Statement of Facts

The following statement of facts is taken from the opening statement of plaintiff's counsel insofar as they are pertinent to the question of liability of respondents for plaintiff's injuries:

'We believe, ladies and gentlemen, that the evidence in this case will establish that Marion Schwartz, then six years old, now sixteen years old, was seriously and massively injured, as few people are, through the negligence of the manufacturer of the garment that she was wearing and the manufacturer of the heater in front of which she was standing to warm herself.

'Marion was born on February 18, 1953. At the time this accident occurred she was six years old. This was in 1959. The accident occurred on February 21, 1959, just a few days after her birthday.

'This garment was a flannelette, doublenap nightie, full length down to her ankles, which her mother had purchased in a store in Sierra Madre where the family lives. In December of '58 she bought it as a Christmas present for Marion. Marion had worn it a few times and it had been washed a few times.

'Marion's parents had a summer place in Newport Beach, not very far from the permanent home of Marion's grandparents who are Mr. and Mrs. Clayton Thompson. The Thompsons lived I think within walking distance. And Mr. Schwartz, who was then and still is now a principal of a high school in the Pasadena High School District, was also on weekend Navy duty at Los Alamitos. So the family was spending the Washington Birthday holiday and weekend down at the beach, which also made it easier for Mr. Schwartz to get to his Naval Air Station.

'Marion's grandparents wanted her to stay overnight with them. Marion up to that time had been a vivacious, beautiful child, normal in all respects, no physical disabilities. She is the third of four children, if I--I know there are four children. I believe she is the third of four children. And Marion's mother took her over to her grandparents the evening before the accident occurred, which would be on February 20th. She stayed there that night.

'Now, this home was a beach house, and it was located in the Balboa area on West Bay Avenue, which is a block away from the bay. On the bay there is Buena Vista Lane, and on Buena Vista Lane, across the way and on the bay, is where Mrs. March, who will come up in our conversation, lived.

'The home I have sketched in rough on this board I won't fill in at this time. I will let the witnesses do that. This is a long bathroom I am pointing to here with two bedrooms off of it. A hallway. A kitchen. A dining room and a living room.

'In this bathroom--

'First, let me say this: This home had no central heating. It had been occupied for, oh, about twenty years by the Thompsons, the grandparents, and its only form of heating--They rented the home. The Thompsons didn't own it. At the time the accident happened Mrs. March owned the home. Previous to then a Mrs. Nabors had owned it. The Thompsons had always rented. The home had no central heating. It had the following: It had a gas jet protruding from the wall in the bathroom to which one could attach a gas heating device, it had a gas jet in the fireplace which was in the living room to which one could attach a heating device, and it had a kitchen stove. Those were the only methods that were prepared for heating.

'So the Thompsons had about, oh, eight or nine years probably before this accident happened--they had bought a heater from a local merchant which was manufactured by the A. F. Thompson Manufacturing Company. No relationship to the grandparents. Just a coincidence. And this heater had been operating in an apparently satisfactory manner, although it was an unvented heater. It was not vented to the outside. It was a standing, small heater, standing on the floor, connected up to the jet that protruded from the wall by a flexible hose. And they had used this heater for some time.

'Now, in the evening Marion stayed with her grandmother in her grandmother's room on a separate bed. Grandfather and Grandmother used the two rooms. Grandfather I believe used the room I am pointing to now and Grandmother the other room. Marion slept on a cot in the grandmother's room.

'Early in the morning she awoke, a little early, like many exuberant children of six, maybe about six or six-thirty. She ran in and jumped in bed with her grandfather. And her grandfather, being awakened, said, 'Marion, run out and get the newspaper.' Something to that effect.

'Marion ran outside and picked up the newspaper. It was a cold morning, cold for this part of the country, and it was drizzling with rain. So she had gotten chilled and a little wet. And was wearing this nightgown which I have previously described, a double-nap flannelette nightgown. And she came back in. And she said to her granddaddy she was chilly and wet. Of course, there was no heat in the house other than the fact that apparently the heater had been lit earlier that morning by the grandfather, or it may have been left on all night. I don't know. But the heater in the bathroom was working. So her granddaddy said, 'I will fix the fire.' He started to fix the fire. And he said, 'You go on in. You go on into the bathroom and warm yourself.'

'So while he was putting the logs in the fire, she went in and stood in front of the heater. She didn't move the heater. She didn't touch it. It wasn't knocked over. But she stood in front of the heater. She may have picked up her little nightie to hold it in front of it.

'It is a heater with a grill on it, but it is a gas-burning heater, and the flames are inside with the grill on the outside.

'We believe the evidence will show that the flames at no time touched this garment, that nothing but the hot gases emitting from it touched the garment, that suddenly there was a flame at the bottom of it.

'* * *

'The evidence will show that this kind of a nightgown not only ignites easily, but once it ignites, it goes up like a Christmas tree. You don't have an opportunity to get out of it.

'* * *

'First let me say we have three defendants. We have the manufacturer of the garment. We have what we contend to be the successor in interest to the manufacturer of the heater. McGraw-Edison did not manufacture it. They bought the assets of Thompson. It is our contention that as a result of the agreement and the law they are responsible. And, third, we have Mrs. March who was the landlord.

'* * *

'As far as the heater is concerned, this heater, interestingly enough, you will find, has on it the seal of approval of the American Gas Association, an independent association which specifies for the trade certain minimum standards that all heaters must meet.

'The evidence will show the way a manufacturer gets the privilege of using the AGA seal is as follows: a prototype is submitted to the American Gas Association for their examination. They run their prescribed tests which are printed in it so that all manufacturers can see them. If that prototype passes the test, then the AGA tells the manufacturer you may use our seal of approval provided that all of the heaters that you put out with such seal have the same qualities as the one that we have examined.

'But the control of using this is entirely up to the manufacturer. The AGA does not, the evidence will show, examine every heater that is sold. They only examine the one prototype, and they may make spot checks from time to time.

'This particular heater which was probably purchased around 1951--and the accident happened in 1959--had been subjected to tests by qualified testing agencies and found...