Gaida v. Hourgettes

• Decision Date: 02 November 1953
• Docket Number: No. 19915,19915
• Citation: 67 So.2d 737
• Parties: GAIDA v. HOURGETTES.
• Court: Court of Appeal of Louisiana — District of US

Page 737

67 So.2d 737

GAIDA v. HOURGETTES.

No. 19915.

Court of Appeal of Louisiana, Orleans.

Nov. 2, 1953.

Jacob H. Morrison and Nat. B. knight, New Orleans, for plaintiff and appellant.

Louis H. Marrero III, Marrero, for defendant and appellee,

McBRIDE, Judge.

In the month of December, 1947, Mrs. Guiseppa Trompetto, wife of Lynn C. Orgeron, verbally leased the furnished premises 514 Second Street, Gretna, Jefferson Parish, from the defendant, who was the owner thereof in her own paraphernal right. At that time Lynn C. Orgeron was away on duty as a career member of the United States Navy. The leased premises consisted of one side of the typical one-story double 'shotgun' house; that is to say, the building was divided into two dwelling compartments covered by the same roof, both sides or units being exact counterparts except in one salient detail. Upon entering the house from a small front porch, the first room is a living room; then moving towards the rear the next room is a small hall with a bathroom beside it; then came the bedroom, and lastly, the kitchen. Heating facilities furnished by the lessor consisted of two open gas heaters characterized as 'space heaters,' the larger of which was located in the first room, and the other, of very small size, was located in the bathroom. The kitchen was equipped with a storage-type water heater of twenty-gallon capacity with a Bunsen burner. It is conceded that the water heater had been installed by the defendant-landlord in 1940 without a vent to the outside, which fact was unknown to any of the plaintiffs. The weight of the testimony of experts who appeared at the trial is that a vent or flue to a water heater of such type is necessary to carry off into the outside atmosphere noxious fumes caused by the gas consumed by the heater, which fumes could be dangerous to life if permitted to escape into the dwelling house. Even Crawford, defendant's expert, admitted that he would have required that the water heater be vented to the outside as provided by the National Board of Fire Underwriters in Pamphlet 54, and that it has been the recognized custom for at least ten years to vent water heaters in such a fashion. While the water heater in the house occupied by the Orgeron family was unvented, there is no dispute that the water heater of the same type located in the other half of the house occupied by Mr. and Mrs. Tierney, who are likewise tenants of the defendant, was properly and adequately vented to the outside.

During the absence of Lynn C. Orgeron with the United States Navy the premises 514 Second Street were occupied by his wife, their two-year-old child, and Mrs. Orgeron's half-sister, Lida Gaida, who subsequently became the wife of Andrew Schaubhut. A few days before the events hereinafter discussed Lynn C. Orgeron returned to Gretna on leave and occupied the house along with his wife, child, and sister-in-law. On the evening of January 18, 1948, these four occupants of the house, together with four other persons, were asphyxiated while congregated in the premises.

Seven damage suits resulted from the mass asphyxiation, all directed against the defendant as lessor, which were consolidated for trial and the evidence adduced was made applicable to all. The trial resulted in a separate judgment in each case dismissing the demands of the plaintiffs, all of whom have perfected appeals. The appeal of Mrs. Lida Gaida Schaubhut was the first of the seven docketed in this court.

The essence of plaintiffs' cases is that the water heater, which had been improperly installed and maintained by the lessor without vent or flue to the outside, of which circumstance the lessee, his family, and guests had no notice or knowledge, was the cause of the damages inflicted upon plaintiffs in that the noxious fumes emitted from the combusion of gases burned in the hot water heater could not escape from the dwelling unit. They seek to compress their claims within the doctrine of a landlord's liability to his tenant and persons lawfully on the premises, as enunciated by Klein v. Young, 163 La. 59, 111 So. 495, and as provided by LSA-C.C. arts. 2322, 2693 and 2695, for their damages by reason of vices and defects in the leased premises which the lessor should have foreseen and guarded against.

The defense to the suits revolves around several propositions: (a) That the sole cause of the injuries to plaintiffs was due to the fact that they 'sealed tight' the house and denied themselves access to outside air, and that therefore their asphyxiations were no more than could have been expected under the circumstances; (b) that the two space heaters, and not the water heater, were the offending agents; (c) that an abnormal amount of heating equipment was used which consumed all of the oxygen in the house and caused carbon monoxide fumes to permeate the premises; (d) that when the hot water heater was installed in 1940 neither the building nor the plumbing code of the City of Gretna specifically required that the water heater be vented to the outside; and (e) that the tenants allowed the faucets to run to prevent the pipes from bursting, which contributed to or was an independent cause of the asphyxiations.

Sunday, January 18, 1948, was extremely cold for this vicinity, and the thermometer hovered somewhere between 25~ and 30~ F. A cold water pipe beneath the house had burst, and upon the refusal of Mrs. Charles, the defendant, to repair it, Lynn C. Orgeron and Andrew Schaubhut repaired the broken pipe themselves and finished their work between 10:00 and 11:00 in the morning. Needless to say the Orgeron family continuously kept in full operation the two space heaters above alluded to, and while most of the witnesses for plaintiff testified that the doors and windows were kept closed, there is uncontradicted testimony to the effect that one of the windows was kept slightly open. Lynn C. Orgeron and his wife, after having experienced the vexations caused by the broken pipe, openedslightly all water faucets in the house, including those connected with the water heater, so that water could trickle through and prevent the water line from freezing and bursting the pipes. While Mr. and Mrs. Orgeron and their next-door neighbor, Mrs. Tierney, the latter also being one of the plaintiffs, testified that Mrs. Charles authorized and advised them to open the faucets, the defendant denies their statements.

At this point it might be well to relate the movements of the persons involved in the unfortunate occurrence. There are some unimportant discrepancies as to the time element, which need not be discussed or considered. Substantially the testimony shows that before noon Lynn C. Orgeron, his wife, and Lida Gaida left the premises and attended church. In the afternoon Andrew Schaubhut, who had departed in the morning after repairing the broken pipe, returned and he, together with his fiancee, Miss Gaida, left to attend a moving picture show. About this time Mrs. Lynn C. Orgeron prepared supper, and then Eugene C. Orgeron and his wife, the parents of Lynn C. Orgeron, 'stopped by' and after remaining for about thirty minutes left to play Keno at an establishment in the neighborhood. Mr. and Mrs. Aby Barrios, the latter a sister of Lynn C. Orgeron, called at about 5:30 p. m., and after visiting briefly, left also to go to the moving picture show.

About 8:00 p. m. the two-year-old child of Mr. and Mrs. Lynn C. Orgeron showed symptoms of sickness in the kitchen by becoming nauseated and intermittently unconscious, and about 8:30 p. m. Mrs. Lynn C. Orgeron also became ill. Around 9:30 p. m. Lida Gaida and Andrew Schaubhut, in company with Mr. and Mrs. Aby Barrios, returned. Schaubhut and Miss Gaida remained in the house, but Mr. and Mrs. Barrios departed for their home. At approximately 9:45 p. m. a telephone call was made to Dr. Floyd Hindelang by Mrs. Lynn C. Orgeron. Plaintiffs' versions are that before the doctor arrived Lynn C. Orgeron, Lida Gaida, and Andrew Schaubhut also had become ill, and the latter then called to Mrs. Tierney next door, and she, pursuant to Schaubhut's summons, came over at approximately 10:30 p. m. and became ill shortly thereafter. About this time Mrs. Barrios was called from her home, and she also experienced illness after entering the premises. It seems as though news of the asphyxiations had gotten about, and Mrs. Edna C. Orgeron, the wife of Eugene C. Orgeron, received word in the Keno Parlor to come to the premises where she arrived at about 10:45 p. m.

The time of the arrival of Dr. Hindelang at the scene is somewhat uncertain, but when he reached the premises, according to his testimony, he found that Mrs. Lynn C. Orgeron and her child had fainted, but that all of the other persons in the house were 'all right.' He states that during the course of his administrations to Mrs. Orgeron and the child, the others became sick and suffered dizziness, weakness, severe pains in the head, and some were nauseated. Dr. Hindelang himself became affected and walked into the kitchen where he discerned a peculiar odor and noticed that the unvented water heater was in full operation. He thereupon turned off the gas and threw open all doors and windows in the house, whereupon everyone seemed to recover except Mrs. Eugene C. Orgeron, who was found to be dead. Dr. Hindelang's diagnosis was that the stricken persons suffered from carbon monoxide gas poisoning. He explained that carbon monoxide displaces the oxygen in the air, and that when a person inhales the poisonous gas his blood stream is denied oxygen, which could be fatal to the victim.

We are convinced that the carbon monoxide which affected those in the home on that Sunday evening was emitted by and escaped from the unvented water heater in the kitchen of the premises. Mrs. Tierney, the...