Andrews v. Del Guzzi

• Decision Date: 23 June 1960
• Docket Number: No. 35086,35086
• Citation: 56 Wn.2d 381,353 P.2d 422
• Parties: William L. ANDREWS and Irene Andrews, his wife, Respondents, v. Bruno DEL GUZZI, Jack Del Guzzi and Pauline Del Guzzi, his wife, Appellants, Ralph E. Schmitt and Irene Schmitt, his wife, Defendants.
• Court: Washington Supreme Court

Page 381

56 Wn.2d 381

353 P.2d 422

William L. ANDREWS and Irene Andrews, his wife, Respondents, v. Bruno DEL GUZZI, Jack Del Guzzi and Pauline Del Guzzi, his wife, Appellants, Ralph E. Schmitt and Irene Schmitt, his wife, Defendants.

No. 35086.

Supreme Court of Washington, En Banc.

June 23, 1960.

Rehearing Denied Oct. 4, 1960.

Johnston & Raley, Port Angeles, for appellants.

Conniff & Taylor, Severyns & Moffett, Port Angeles, for respondents.

DONWORTH, Judge.

Respondents initiated this action to recover damages for personal injuries allegedly sustained from inhaling carbon monoxide gas which escaped into the house in which they were tenants. The dwelling was owned by the Assembly of God Church in Forks, Washington. Respondent husband was pastor of the church.

The action was brought against appellants Del Guzzi as the contractors, who constructed the house, and also against defendants Ralph E. Schmitt and wife, as subcontractors, who installed a propane gas furnace in the house.

The complaint contains two causes of action. The first is in behalf of William L. Andrews and prays for damages in the amount of $75,269.22. The second is in behalf of Irene Andrews, his wife, and prays for damages in the amount of $5,028.25.

It is alleged that prior to November 19, 1952, the Assembly of God church contracted with appellants for the construction of a house to be occupied by its pastor, and that the heating system was installed by defendant Ralph E. Schmitt as subcontractor for appellants.

It is further alleged that the house was completed in November, 1952, and that respondents moved into the house in June, 1953. Paragraph V of the first cause of action reads:

'That the furnace that was installed by the Defendants was a gas furnace and burns as fuel propane gas, which created vapors that are dangerous to human life. That during the night of October 6, 1954, and the early morning hours of October 7, 1954, gas escaped from said furnace into the house and into the bedroom where the Plaintiffs [respondents] were sleeping. That as a result thereof, and of the inhalation of said gas by the Plaintiffs, they became very ill. * * *'

It is then alleged that the cause of the escaping gas was the negligent installation of the furnace, and that appellants and their subcontractor, Schmitt, were negligent in the following particulars:

1. Failure to provide for proper venting of the furnace so as to permit exhaust to escape into the atmosphere.

2. Failure to properly connect the furnace to the chimney.

3. Failure to provide a chimney of sufficient height to permit the exhaust gases to be carried away from the house.

4. Failure to install a cap on the chimney to control air currents descending into the chimney which prevented exhaust gases from being carried off into the atmosphere.

The complaint alleges as an additional item of negligence the failure to provide a separate flue for the furnace. However, this item was not relied upon at the trial.

It is finally alleged that the abovedescribed acts of negligence created a condition inherently and imminently dangerous to human life and that respondents' injuries were directly and proximately caused by such condition.

Appellants, by answer, admitted that they were the contractors who constructed the house, that the defendants Schmitt installed the propane gas furnace, and denied all the other material allegations in the complaint.

On the issues thus framed, the case came on for trial before the court sitting with a jury.

At the close of the evidence, appellants challenged its sufficiency and moved for a dismissal. The challenge and motion were denied.

The jury returned a verdict in favor of respondent William Andrews and against appellants in the amount of $4,200, and in favor of respondent Irene Andrews and against appellants in the amount of $800. Since no verdict was rendered against the defendants Schmitt, judgment was entered dismissing the complaint against them and they were awarded their costs.

Thereafter, appellants moved for judgment notwithstanding the verdict, which was denied. The court then entered a judgment upon the verdict, from which this appeal is prosecuted.

The two assignments of error are: (1) The trial court erred in denying appellants' motion for dismissal at the close of the evidence; (2) the trial court erred in denying appellants' motion for judgment notwithstanding the verdict.

Both assignments of error involve the same principles of law and will therefore be discussed together.

Appellants first contend that there is no evidence or reasonable inference from the evidence sufficient to sustain any claim of negligence.

The evidence clearly establishes the fact that defendants Schmitt had nothing to do with the construction of the chimney. Since the jury apparently found no negligence as to defendants Schmitt, its verdict must be deemed a finding in favor of appellants as to all allegations of negligence which pertain to the actual installation of the propane gas furnace. Bickelhaupt v. Inland Motor Freight, 1937, 191 Wash. 467, 71 P.2d 403. Thus, the only allegations of negligence remaining for the jury's consideration were items three and four, supra, to wit, the failure to provide a chimney of sufficient height, and the failure to install a cap on the chimney.

The chimney in question was nineteen and one-eighth inches higher than the roof peak of the house. Respondents contended that the chimney should have been at least twenty-four inches above the roof peak. Respondents' expert witness, Verle Brown, testified that, when gas fuel is being used in a dwelling, the chimney should be a minimum of twenty-four inches above the roof peak if the chimney is horizontally within ten feet of the roof peak, or else the chimney should be equipped with a vent cap; otherwise, he said, there would be a tendency for downdrafts to form which would cause improper venting. Respondents also read into evidence the following recommendation of the American Gas Association, which is quoted in appellants' brief, as follows:

'It is usual experience that a flue or vent extended at least two feet above flat roofs or two feet above the highest part of wall parapets and peak roofs within thirty feet will be reasonably free from down drafts.' (Italics ours.)

The chimney in this case was located within three feet of the roof peak.

Appellants' expert witness, Robert Brown, explained the function of the American Gas Association as follows:

'Well, the A.G.A., American Gas Association, is a group of interested people that are banded together to improve the usage of gas combustion equipment. It embraces a complete field of all interested parties including the insurance companies, the Health Division of the United States Government, the appliance manufacturers, the gas companies and all of the other people that are interested in giving safe equipment out into the field for proper application and fundamentally for protection of the public.' (Italics ours.)

From the evidence above mentioned, the jury could have reasonably inferred that the chimney in this case was not properly constructed so as to be free from downdrafts.

There was substantial evidence from which the jury could have found that downdrafts in the chimney would prevent the gas fumes from escaping into the atmosphere and, instead, would permit them to pour down through the draft diverter for the furnace and ultimately escape into the house.

Furthermore, it was undisputed that Forks, Washington, where this house was built, is subject to frequent high wind conditions.

The question here presented is whether appellants exercised reasonable care to prevent downdrafts from occurring in this chimney. On the conflicting evidence presented, we think this question was properly one for the jury to determine.

It is next contended that there is neither evidence nor any reasonable inference from evidence that any act of negligence on the part of appellants was a proximate cause of respondents' injuries.

The rule to be applied to respondents' evidence is stated in St. Germain v. Potlatch Lumber Co., 1913, 76 Wash. 102, 135 P. 804, 807, as follows:

'* * * It is sufficient if his evidence affords room for men of reasonable minds to conclude that there is a greater probability that the accident causing the injury happened in such a way as to fix liability upon the person charged with such liability, than it is that it happened in a way for which the person so charged would not be liable * * *.' (Italics ours.)

However, appellants take the position that respondents' evidence does not satisfy this test.

Both parties presented expert witnesses on the issue of causation. Respondents' expert witness, Verle Brown, when asked on direct examination how the products of combustion got into the house, testified:

'Well, in my opinion they weren't being properly vented; the products of combustion did then come out of the draft diverter and through the fissures which were present in the cold air ducts and entered the system that way and then would have been transported through the cold air ducts or in the case of the blower running through the hot air ducts into the living space.'

The witness then gave his opinion as to what was improper about the venting and stated:

'In my opinion the most important consideration is the fact that the vent was less than what I would consider the minimum requirement above the roof, which is twenty-four inches. It was less than that. * * *'

Appellants argue that it was more probable that the gas which entered the house came from the hot-water heater which was installed by the owner of the house and which was vented into the same chimney as the furnace.

We think appellants' theory of probable proximate cause was pretty much discounted by the undisputed evidence that it was perfectly proper to vent the hot-water heater into the same chimney the furnace was vented into, since the two...