Burr v. Clark

• Decision Date: 16 March 1948
• Docket Number: 30354.
• Citation: 190 P.2d 769,30 Wn.2d 149
• Court: Washington Supreme Court
• Parties: BURR et ux. v. CLARK et al.

190 P.2d 769

30 Wn.2d 149

BURR et ux. v. CLARK et al.

No. 30354.

Supreme Court of Washington

March 16, 1948

Department 2

Action by J. Walter Burr and Pearl V. Burr, his wife, against R. L Clark and G. F. Clark, copartners, doing business under the assumed name of Genesee Coal & Stoker Company, to recover compensations for damage allegedly done to plaintiffs' residential heating system when defendants' employee made repairs to the heating system. From a judgment for the plaintiffs, the defendants appeal.

Affirmed.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

Simmons & McCann, of Seattle, for appellants.

Pat Myers, of Seattle, for respondents.

STEINERT Justice.

Plaintiffs instituted this action to recover compensation for damage done to their residential heating system, alleged to have been caused by the negligence of the defendants' employee while making repairs to a part of the heating equipment. The action was tried to the court, without a jury. The trial court made findings of fact, stated its conclusions of law and entered judgment in favor of plaintiffs. Defendants appealed.

At the time involved in this action, respondents J. Walter Burr and Pearl V. Burr, husband and wife, were the owners of and occupied a six-room house situated in the Georgetown district of Seattle. The house was built in 1941 and, during its construction, a hot water heating system was installed in the basement.

This heating system included an automatic coal stoker and a secondhand cast-iron Arco (American Radiator Company) furnace boiler composed of sections put together and bolted with bush nipples. The system was of the closed rather than the open, type. The distinguishing difference between the two types of hot water heating systems, as explained by an expert witness, is that the closed type employs a relief valve and an air compression tank to relieve excess water pressure, whereas the open type has an expension tank in the attic of the house and a vent pipe leading through the roof to carry off excess water.

In the instant case, the furnace boiler, which was set in a corner of the basement, was equipped with several safety devices, including a relief valve, a compression tank, an 'aquastat,' and a water pressure gauge. The relief valve and compression tank were located back of the boiler, near the outside wall of the building, and served to prevent the accumulation of water pressure in the boiler. The aquastat, fastened onto the flow line from the boiler, controlled the operation of the coal stoker, which supplied heat to the boiler according as the temperature rose or fell. The water pressure gauge, mounted on the front of the boiler, contained a dial with figures thereon numbering from zero to approximately 60. Actual pressure in the boiler was indicated on the dial by a movable black hand. The danger mark, indicating excessive pressure, was shown by a stationary red hand set almost vertically at about 25.

According to the expert witness, boilers of this type are manufactured to operate under thirty pounds working pressure for hot water. Respondents had been told by the prior owners of the house that when the pressure dropped they were to open the inlet valve and admit water into the boiler until the black hand 'came back to correspond with the red hand,' but under no consideration should they ever allow the black hand to get beyond the red one.

During the morning of September 25, 1945, Mrs. Burr, one of the respondents herein, discovered that the furnace was not properly heating the radiators and that an unusual amount of coal in the stoker was smoldering, instead of burning freely. She reported the matter by telephone to her husband, who told her to send for someone to remedy the situation. Having seen the name 'Genesee' on the stoker, she telephoned to that company, a copartnership composed of the appellants herein. Mr. Gordon F. Clark, one of the appellants, answered the 'phone. Mrs. Burr told him that they were having trouble with the furnace, that it was full of coal which was smoldering, that she was afraid of it, and that she wanted him to send a man out to 'check' the furnace. Mr. Clark was unable to send a man at once, but stated that he would do so as soon as he could.

Mrs. Burr reported the result of the conversation to her husband and at the same time told him that she was 'still worried.' Mr. Burr thereupon told her to 'clean out' the coal stoker. Mrs. Burr then took all of the coal out of the stoker and, because the coal was smoldering, set it outside in metal buckets.

That evening, between six and seven o'clock, one of appellants' repairmen, Dormer Smith, referred to as George by Mr. Burr, arrived at respondents' house. Smith was a mechanic with fifteen years' experience in the heating service business. Mr. Burr conducted Smith to the basement and explained to him what little he, Burr, knew abut the furnace, including what he had been told about the indicator gauge on the boiler. Smith discounted what the prior owners had said about the gauge and the warning that Mr. Burr had received from them. Burr testified:

'We had a discussion about this valve. And he [Smith] explained that the fellow who and warned me of this gauge, this George [Smith], said that he was mistaken, that the system is set up so that the water pressure automatically took care of itself; if you should run the gauge clear full it would overflow through some source he mentioned on the roof. He said there was a tank in the attic and the overflow would come out onto the roof. I said, 'There has never been any overflow on the roof here, nor is there a tank in the attic.''

Smith then built a fire in the furnace and admitted water into the boiler by turning the inlet valve. Thereupon, the black hand proceeded around the dial until it was arrested by a needle fixed at the figure 60, thus indicating continuously increasing pressure. Mr. Burr, who was watching the gauge to see what the black hand would do, observed that, after coming to rest, it did not move backward as Smith said it would. Thereupon, the following occurred, as testified by Burr:

'* * * And I told this man [Smith], 'This hand isn't falling back.' 'Well,' he says, 'that's all right, it will. It is supposed to. That is the way they are fixed,' he says. So by that time the fire was getting a pretty good start, getting pretty hot. And my wife come down then. And so again I told George [Smith], I says, 'Well, this gauge may be supposed to come back, but it isn't moving, it hasn't done a thing.' Well, George says, 'Well, it will come back,' And as he reached and opended the valve and let more water into the boiler * * * the boiler blew up. The hot water blew all over the basement.' Appellants' version of the event, as testified by Smith, differs in some respects from that of the respondents as set forth above. Smith testified that Burr warned him about the gauge only once, and that the boiler burst as he was putting water into it for the first time.

A subsequent investigation with reference to the boiler and stoker by Mr. J. R. Baldwin, a boiler expert, who was brought to the Burr premises by one of the appellants, disclosed that the aquastat was out of order and that the relief valve was defective. He testified that, in his opinion, the bursting of the boiler was due to excess pressure, although he did not know whether water pressure or steam pressure was the cause. He further testified that, if the water pressure had been kept at 25 or below, as marked on the gauge, the boiler would not have burst; also, that if the relief valve had been working properly, the boiler would not have burst. Appellants' witness Smith was of the opinion that the bursting of the boiler was due to pressure from the water main, not from the pressure caused by heat induced by fire in the stoker; he thought the fire was not hot enough at that time to cause such pressure.

After the accident, respondents inquired of appellants whether they were going to repair or replace the damaged apparatus at the latter's expense. Appellants refused to assume any blame. Thereafter, respondents employed Mr. J. R. Baldwin, a heating contractor of thirty years' experience, to make the necessary repair or replacement. Mr. Baldwin had installed the original heating system in the house.

Baldwin testified that he found it necessary to install a new boiler, as it was impossible during the war years to get the parts required for the repair of the old boiler.

The trial judge who, by his own statement made during the course of the trial, is 'a journeyman machinist by trade' and who had 'handled all kinds of steam for many years and made those valves,' considered the evidence and made a formal finding of fact that the bursting of the furnace boiler was caused by the carelessness and negligence of appellants' repairman in the following respects: (1) In filling the boiler with water beyond a safe capacity; (2) in building a 'roaring fire' in the furnace when the boiler was filled with water beyond a safe capacity; and (3) in disregarding the explicit warnings and protests made by the respondents against filling the boiler with water beyond the safety point as indicated upon the water pressure gauge.

The court granted judgment in favor of respondents in the sum of $315.32, covering the cost of restoration, including the installation of a new boiler, and from that judgment this appeal was taken.

Appellants first contend that the trial court erred in finding their employee repairman negligent, and in entering judgment in favor of respondents. They base their argument with respect to negligence upon the testimony of their employee, Smith, to the effect that the boiler burst as he was admitting...