Delgaudio v. Ingerson, 91264

• Decision Date: 30 July 1954
• Docket Number: No. 91264,91264
• Citation: 19 Conn.Supp. 151,110 A.2d 626
• Court: Connecticut Superior Court
• Parties: Joseph F. DELGAUDIO et al. v. Arthur B. INGERSON et al.

Page 626

110 A.2d 626

19 Conn.Supp. 151

Joseph F. DELGAUDIO et al. v. Arthur B. INGERSON et al.

No. 91264.

Superior Court of Connecticut, Hartford County.

July 30, 1954.

Woodhouse, Schofield & Fay, Hartford, and James F. Dawson, New Britain, for plaintiffs.

James B. Hallett, Hartford, for defendants.

Warren Maxwell, Hartford, for named defendant.

Joseph X. Friedman and Davis, Lee, Howard & Wright, Hartford, for defendant Friedman.

COMLEY, Judge.

On October 9, 1950, the plaintiff husband contracted to purchase from Pinecrest Inc., a dwelling house then in process of construction in a development known as Stepney Village in the town of Rocky Hill. This was one of twenty-seven similar houses in the development. Title was taken in the name of both plaintiffs on December 28, 1950. At that date there was still some interior painting and decorating to be done. This was completed on January 10, 1951, and the plaintiffs then moved into the house.

It was understood that the house would be furnished by the grantor with an oil burner and a forced hot air heating system although neither the bond for deed nor the deed itself so provides. The grantor had made a contract with the defendants Arthur B. Ingerson and Robert D. Ingerson, doing business in Bristol, Connecticut, as The Ingerson Heating Company, to supply and install oil burners in all the twenty-seven houses, including the one purchased by the plaintiffs. The Ingersons bought the burners from The Lennox Furnace Company, which has a factory in Syracuse, New York.

The Lennox oil burner was installed in the plaintiffs' house by The Ingerson Heating Company on or about November 20, 1950. After installation it was tested by Robert Ingerson himself. During most, if not all, of the period between that date and January 10, 1951, the burner was in operation in order to provide heat while the house was being decorated.

Between January 10, 1951, and January 13, 1951, the plaintiffs did not touch the burner. They adjusted the thermostat once or twice. During this period the burner did not operate efficiently, remaining in operation for as much as two hours at a time although the house was a small, five-room, ranch-type structure.

On the morning of January 13, 1951, the plaintiff husband left for work before 7 o'clock. Shortly before 7 o'clock, the plaintiff wife, who was in the bathroom combing her hair, heard a noise or rumble which she described as a 'Poof.' At first she thought it was snow sliding off the roof. She felt chilly and went into the living room where she advanced the thermostat. When she returned to the bathroom she felt a great rush of hot air coming through the duct. She then went into the kitchen and saw smoke pouring from the door between the kitchen and the utility room where the burner was located. Upon opening the door she observed flames pouring from the burner. Other objects in the room were on fire, including the dust bag on a vacuum cleaner which was stored there. There was a hole about the size of a half-dollar in the metal housing of the burner and the housing itself had dropped down several inches. The fire then spread rapidly to other rooms in the house and these rooms, together with their contents, were badly damaged.

The only named defendants are the Ingerson brothers and Bernard Friedman, who is president and treasurer of Pinecrest, Inc. At the conclusion of the plaintiffs' case, a nonsuit was granted as against Bernard Friedman. It is to be noted that neither Pinecrest, Inc., nor The Lennox Furnace Company is a party to the action.

The cause of action against the Ingerson brothers is set forth in two counts, the first alleging a breach of warranty and the second sounding in negligence. The plaintiffs cannot prevail on the first count because there is no privity of contract between them and the Ingersons. The parties to the sale of the burner were the Ingersons as sellers and Pinecrest, Inc., as buyer. As was stated in Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 96, 3 A.2d 224, 226, "[t]here cannot be a warranty where there is no privity of contract."

There is no occasion to consider whether in the sale of the house to the plaintiffs by Pinecrest, Inc., there was a warranty, express or implied, of the fitness of the burner for the use for which it was intended, since that corporation is not a defendant in the action.

There remains for consideration the claim of negligence against the Ingersons. This necessitates a finding as to the cause of the fire. The evidence on this question was in serious conflict and consisted of the observations and opinions of experts long after the event. It seems clearly established that there was no defect in the burner itself. If properly installed and properly adjusted and properly inspected, it would have functioned properly. The court finds that the fire originated after an explosion due to accumulated oil vapor...