Dow v. Holly Mfg. Co.

• Decision Date: 18 February 1958
• Citation: 49 Cal.2d 720,321 P.2d 736
• Court: California Supreme Court
• Parties: Leona Faye DOW and Leona Faye Dow, as Guardian ad litem of Richard Floyd Dow, a Minor, Plaintiffs and Respondents, v. HOLLY MANUFACTURING COMPANY (a Corporation), et al., Defendants, George W. Bledsoe, Defendant and Appellant. L. A. 24695

Page 736

321 P.2d 736

49 Cal.2d 720

Leona Faye DOW and Leona Faye Dow, as Guardian ad litem of Richard Floyd Dow, a Minor, Plaintiffs and Respondents, v. HOLLY MANUFACTURING COMPANY (a Corporation), et al., Defendants, George W. Bledsoe, Defendant and Appellant.

L. A. 24695.

Supreme Court of California

Feb. 18, 1958.

Gray, Cary, Ames & Frye and Sterling Hutcheson, San Diego, for appellant.

McInnis, Hamilton & Fitzgerald and John W. McInnis, San Diego, for respondents.

CARTER, Justice.

Plaintiff Leona Faye Dow is the widow of Howard Dow and the mother of Patricia and Arthur Dow. Plaintiff, Richard Dow, is the son of Howard Dow and brother of Patricia and Arthur. Plaintiffs were awarded damages against defendant Bledsoe for the wrongful deaths of Howard, Patricia and Arthur. The case was tried before a jury and no verdict was rendered with respect to defendant Holly Manufacturing Company. Defendant Bledsoe, hereinafter referred to as defendant, appeals from the judgment.

The deaths were caused by asphyxiation from carbon monoxide coming from a gas heater in the home of the Dow family. Dover, a plumbing contractor who installed the heater, was not a party to the action.

The home was built by defendant Bledsoe, as general contractor, for Mr. Muth between September, 1950 and February, 1951; defendant also prepared the plans and specifications. Mr. Muth was the then owner of the property. Muth never occupied the house. He sold it to Mr. and Mrs. Petty in April, 1951; they occupied the house until they sold it to the Dows in 1953. Plaintiff, Mrs. Dow, left her home with one son, Richard, the other plaintiff, for a visit in the middle west on January 15, 1954. They returned on January 26, at 8:00 p. m. and found the doors and windows closed, the hall gas heater on and Mr. Dow and the two children dead from asphyxiation.

The plans and specifications provided for the installation in the walls of the house of two 25,000 B.T.U. gas heaters, one in the living room, thermostatically controlled, and the other in the hall, manually controlled. Defendant contracted with Dover, a licensed plumbing contractor, to install the heaters. ¹ Dover bought two heaters from the Holly Manufacturing Company and had his employees install them in the walls. He also installed, immediately above the hall heater, a 'secondary heat exchanger,' which was also installed in the wall above the top of the heater and below the ceiling and around the vent which extended upward to the roof, and a grill was placed in the wall just below the ceiling to admit heat into the room. Heat and the products of combustion arose through the vents from the heaters. Defendant saw the secondary heat exchanger when the wall studding was still uncovered. The heaters themselves were installed when the house was nearly completed. The city building inspectors also saw the 'secondary heat exchanger' and made no complaint to defendant. Defendant examined the heaters to see if the American Gas Association seal was on them.

It appears that above the burner there is a heat exchanger which is a metal box concealed by panels on the front of the heater. The flue to the roof (heater vent) goes from that exchanger to the roof. There is a grill at the top of the panel from which heat flows, the air being heated because the box or exchanger is heated. Dover also put a grill in the wall near the ceiling above the heater, giving access to the area around the flue which is heated by reason of the flue passing through it. That is referred to as a 'secondary heat exchanger.'

There is evidence that after the deaths the hall heater, including the flue, were heavily sooted, cutting down the area for the out-flow through the flue; that the flame was yellow instead of blue as it should have been, which meant an overfiring (too much gas coming into the burner) and the impairment of passage by the soot; that there was soot on the grill near the ceiling and on the wall and ceiling; that the heater had been changed to accommodate the secondary heat exchanger and had the wrong burner for it; that the orifices which admitted the gas for burning were too large, being proper for a 35,000 rather than a 25,000 B. T. U. heater; that the heater was a 25,000 B. T. U. design; that as a result of the larger orifices sooting would occur, which, over a period of time, would result in carbon monoxide entering the house from the heater; that carbon monoxide is a colorless and odorless gas, and it was coming from the heater in large quantities when tested after the deaths; that the effect of installing a secondary heat exchanger on a heater like the hall heater would be that the heater would be only partially vented, and a substantial portion of the products of combustion would spill out of the relief opening in the draft head; that one could not install a secondary heat exchanger on the hall heater without altering the appliance; that the use of a secondary heat exchanger with the hall heater would cause flue products to spill out of the relief opening in the draft head; that products of combustion would come into the room because of poorly constructed vent features; that because the hall heater was not adapted to a secondary heat exchanger it was not good practice to use one and would be more of a hazard if the heater were overfired. While there is some inconsistency within the testimony of some of plaintiffs' witnesses and there is otherwise a conflict in the evidence, those were matters for resolution by the finder of fact, the jury here. The evidence is thus sufficient to show the installation of a defective heater, which clearly constituted negligence. Whether that negligence was on the part of Dover or defendant is unimportant for the reasons hereinafter appearing.

It should first be observed that the owner for whom the house was built by defendant general contractor had accepted the house and it had been transferred by him, with title finally vesting in the Dows. At one time this was an obstacle to recovery from the general contractor on the theory that there was no privity of contract between the contractor and the person injured, but it is no longer the law, as obviously, the problem presented is the same as where a manufacturer negligently manufactures an article which subsequently injures someone other than the purchaser of the article. See famous case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696. Commenting on this subject a well-known text writer states: 'Where the defendant has in fact misperformed his contract, and is to be charged with 'misfeasance' resulting in injury to a third person, it is to be expected that liability to third persons will be found more readily; and in general this has been true. Even here, however, the great obstacle has been the notion of the necessity of 'privity of contract' inherited from the misinterpretation of Winterbottom v. Wright. * * * All this is now ancient history. The analogy of the seller has prevailed, and the late decisions are agreed that the man who negligently repairs a vehicle or any other chattel is liable to others who may be injured because of that negligence, to the same extent as if he had made and sold the chattel in the first instance.' (Prosser on Torts, (2d ed.) p. 517.) And with respect to building contractors: 'Until quite recent years it was the prevailing rule that the contractor would be liable for any injury resulting from his negligence before his work was completed, but that his responsibility was terminated and he was not liable to any third person once the structure was completed and accepted by the owner. * * *

'The present state of the law is not altogether clear because of the survival of so many of these exceptions, which afford an opportunity to hold the defendant liable without stating any general rule. It appears, however, that the analogy of MacPherson v. Buick Motor Co. is at last being accepted. Several recent decisions have placed building contractors on the same footing as sellers of goods, and have held them to the general standard of reasonable care for the protection of anyone who may foreseeably be endangered by the negligence, even after acceptance of the work.' (Prosser on Torts (2d ed.) p. 517.) See, also, Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 183; Moran v. Pittsburg-Des Moines Steel Co., 3 Cir., 166 F.2d 908; Hunter v. Quality Homes, 6 Terry 100, 45 Del. 100, 68 A.2d 620; Colton v. Foulkes, 259 Wis. 142, 47 N.W.2d 901; Colbert v. Holland Furnace Co., 333 Ill. 78, 164 N.E. 162, 60 A.L.R. 353; Wright v. Holland Furnace Co., 186 Minn. 265, 243 N.W. 387; Rest. Torts, § 385; cases collected 42 Va.L.Rev. 403; 13 A.L.R.2d 191.

Turning to the question of whether the general...