Dover Corp. v. Perez, 1372

• Decision Date: 30 August 1979
• Docket Number: No. 1372,1372
• Citation: 587 S.W.2d 761
• Parties: DOVER CORPORATION and J. R. Preis, d/b/a Coastal Bend Sales, Appellants, v. Sylvia PEREZ as Temporary Administratrix of the Estate of Jesse E. Perez, Deceased, Appellee.
• Court: Texas Court of Appeals

Page 761

587 S.W.2d 761

DOVER CORPORATION and J. R. Preis, d/b/a Coastal Bend Sales, Appellants, v. Sylvia PEREZ as Temporary Administratrix of the Estate of

Jesse E. Perez, Deceased, Appellee.

No. 1372.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 30, 1979.

For Supplemental Opinion on the Filing of Remittitur Sept.

21, 1979. See 591 S.W.2d 547.

J. Robert McKissick and Lee Mahoney, Corpus Christi, for appellants.

Joseph D. Jamail, Houston, William R. Edwards, Corpus Christi, for appellee.

OPINION

YOUNG, Justice.

This is an appeal from a suit for wrongful death brought by appellee, Sylvia Perez, individually and as temporary administratrix of the estate of Jesse E. Perez, and as next friend of Margo Perez and Yvett Perez, against Ajax Supply Company, Central Plumbing & Heating, Inc., Jack Colmenero, d/b/a Coastal Home Designers, and appellants, Dover Corporation and J. R. Preis, individually and d/b/a Coastal Bend Sales. Plaintiff alleged that the defendants had negligently designed, manufactured, marketed, distributed, and installed an unreasonably dangerous wall heater which gave off excessive amounts of carbon monoxide and thereby poisoned Jesse Perez and caused his death. The jury found that Sylvia Perez should recover $650,000.00 for the wrongful death of her husband, and that her daughters, Margo and Yvett, should recover $150,000.00 each. The award was made jointly and severally against Dover Corporation and J. R. Preis, individually and d/b/a Coastal Bend Sales. All other defendants were found to be without liability. Motions for instructed verdict and motions for new trial of Dover and Preis were denied and this appeal followed. The primary questions to be decided in this appeal concern the causal connection between Dover's design and marketing of the heaters and the death of Jesse Perez, improper jury argument, failure to grant a continuance and excessiveness of damages.

The record indicates the following facts and circumstances. On January 13, 1975, Jesse Perez died as a result of carbon monoxide poisoning caused by the wall heater installed in his first floor unit of a two story, fourteen-unit apartment complex. The apartment was owned by appellant, Preis, and the wall heater was manufactured by Dover Corporation.

Upon later inspection of the heater in question, it was discovered that a 35,000 BTU burner unit had been installed into a 25,000 BTU case or housing. The case was marketed separately from the burner unit, and a 25,000 BTU case could hold either a 25,000 BTU burner or a 35,000 BTU burner. The only markings on the heater case itself to prevent a mismatching was a yellow and red placard on the inside of the case which warned any person installing a burner to properly match a 25,000 BTU case with a 25,000 BTU burner. The placard did not warn of carbon monoxide poisoning in the event of a mismatch. The evidence was uncontradicted that whenever a 35,000 BTU burner was installed in a 25,000 BTU case, excessive and dangerous amounts of carbon monoxide would probably be given off by the gas heater.

In addition to the evidence concerning the mismatching of the case and burner, there was also extensive testimony that the heater had been improperly vented. The USA and NFPA standards and the city plumbing and building code of Corpus Christi both required that a heater of this nature be vented straight up from the unit through the roof. The instructions which accompanied the heater also recommended this manner of venting. One of Preis' employees vented the heater vertically only a few feet, however, and then vented it horizontally out through the wall.

In answer to special issues the jury found that a 35,000 BTU burner was installed in a 25,000 case which was manufactured by appellant Dover; that the failure of Dover to protect mechanically against the use of a 35,000 BTU burner in a 25,000 BTU case caused the product to be unreasonably dangerous and was a producing cause of Perez' death.

In addition, the jury found that the failure of appellant Preis, the owner and builder of the apartment, to comply with the city code provisions with respect to the installation of the venting system of the heater was a proximate cause of Perez' death; that the venting system was installed at the direction of Preis or one of his employees; that the wall heater and venting system were installed in a negligent manner which was a proximate cause of Perez' death; that a reasonably prudent person using ordinary care would not have installed or maintained a 35,000 BTU burner in a 25,000 BTU case and that such installation or maintenance was a proximate cause of Perez' death; and that the heater was not maintained by Preis in the manner that an ordinary person exercising ordinary care would have maintained it, which also was a proximate cause of Perez' death. Preis does not challenge these findings of negligence and proximate cause in this appeal nor does Dover challenge the findings that it produced and marketed an unreasonably dangerous product.

Dover brings 27 points of error and Preis brings 24 points of error. Dover's points 15 through 24 contend there is both legally and factually insufficient evidence to support the jury's findings that the defective design and inadequate warnings were both producing causes of the death. Basically, Dover contends that the negligence of Preis' employees was the sole producing cause of the death or that this negligence was a new and independent cause of the death. We disagree.

Producing cause is defined in various ways. In the present case the trial court defined producing cause as follows:

"By the term 'Producing Cause' is meant an efficient, exciting, or contributing cause, which, in a natural and continuous sequence, caused in whole or in part the death of Jesse Perez. There can be more than one producing cause, but there can only be one sole producing cause."

In General Motors Corp. v. Hopkins, 548 S.W.2d 344, 351 (Tex.Sup.1977), the Court noted the definition that the trial court in that case used, and that definition of producing cause is substantially the same definition as above with the added requirement in Hopkins that "but for the said cause the occurrence or injuries would not have occurred." Compare Jones v. Traders & General Ins. Co., 140 Tex. 599, 169 S.W.2d 160, 162 (Tex.Comm'n App.1943, opinion adopted).

Dover initially points to expert testimony that even with a mismatched burner and case, a proper vent would have prevented any harm. Dover then concludes that but for the improper venting, Perez would not have died; and, thus, the negligent venting was the sole producing cause of death.

There may be more than one producing cause of any injury, though. General Motors Corp. v. Hopkins, supra. And, testimony in this case is abundant that all of the 25,000 BTU Dover heaters in the thirteen other apartments contained properly matched burners and cases, but were improperly vented in the same manner and, similar to the heater in Perez' apartment had received no maintenance since installation. There were other people in those apartments, but there were no reported deaths of any of them. There was no testimony of any other resident having ill effects in the other apartments, and Preis testified that the heater in Perez' apartment was the only heater in his apartments which had malfunctioned. Consequently, the effects of the mismatched case and burner were necessary components of Perez' death and we can assume that had Dover properly warned of such dangers, or had designed the product so as to prevent a mismatching, that the mismatching would not have occurred and Perez probably would not have died. Technical Chemical Company v. Jacobs,480 S.W.2d 602, 606 (Tex.Sup.1972). It was the combination of the mismatched burner and case and improper venting which caused Perez' death. Where several causes producing harm are concurrent and each is an efficient cause without which the injury would not have happened, then the injury may be attributed to all or any of the causes. See South Austin Drive-In Theater v. Thomison, 421 S.W.2d 933, 952 (Tex.Civ.App. Austin 1967, writ ref'd, n. r. e.). Dover's arguments concerning sole producing cause are overruled.

Dover then argues that the evidence is conclusive that improper venting and maintenance was a new and independent cause of the death, breaking the causal connection between the mismatched components and the death.

In contravention to this position, we first note that there was some evidence that even if the heater had been properly vented, a mismatched burner and case could be dangerous to the occupant.

Secondly, we note that new and independent cause is not an issue to be submitted to the jury, but is an element to be considered by the jury in determining the existence of producing cause. Compare Dallas Railway & Terminal Company v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 383 (1952), Pioneer Natural Gas Co. v. Caraway, 562 S.W.2d 284 (Tex.Civ.App. Eastland 1978, writ ref'd, n. r. e.). In a products liability case, whether an intervening act will constitute a new and independent cause is generally a question of foreseeability. 1 L. Frumer and N. Friedman, Products Liability § 11.04(1) (1975); Griggs v. Firestone Tire and Rubber Company, 513 F.2d 851 (8th Cir. 1975). See also General Motors Corp. v. Hopkins, supra; C. A. Hoover and Son v. O. M. Franklin Serum Company, 444 S.W.2d 596, 598 (Tex.Sup.1969); 72 C.J.S.Supp. Products Liability §§ 30-32 (1975). In this regard appellant is asserting, in effect, that Dover could not have foreseen that Preis would improperly vent and maintain the heater.

At trial, Dover's expert testified Dover could not have foreseen or anticipated that someone would improperly install one of its heaters. He then stated, however, that some units probably are improperly installed. He also stated that Dover knew that mismatched components could cause many problems. Dover's expert also...