Hadad v. Booth

• Decision Date: 10 October 1955
• Docket Number: No. 39730,39730
• Citation: Hadad v. Booth, 225 Miss. 63, 82 So.2d 639 (Miss. 1955)
• Parties: John HADAD, Jr., and Cletus Hadad v. George T. BOOTH, Sr., et al.
• Court: Mississippi Supreme Court

Page 639

82 So.2d 639

225 Miss. 63

John HADAD, Jr., and Cletus Hadad v. George T. BOOTH, Sr., et al.

No. 39730.

Supreme Court of Mississippi.

Oct. 10, 1955.

Brunini, Everett, Grantham & Quin, J. Stanford Terry, Vicksburg, for appellants.

W. J. Vollor, Ramsey & Ramsey, Vicksburg, for appellees.

ETHRIDGE, Justice.

This suit was instituted in the Circuit Court of Warren County by John Hadad, Jr., and Cletus Hadad, appellants, against appellees George T. Booth, Sr., and others, a partnership doing business as George T. Booth & Sons (hereinafter referred to as Booth or the plumbers) and against Dan Cole and Ed L. Clark, doing business as B & G Electric Company, a partnership (hereinafter referred to as Cole or electric company). The action was for damages for negligence of the plumbers and the electric company in installing a natural gas furnace or heater in the attic of the home being constructed by Hadad, and for resulting damages when the heater set the house on fire and badly damaged it. The trial court heard testimony for both sides, and then gave a peremptory instruction for defendants.

In June 1951 Mr. and Mrs. Hadad decided to construct a new home in the City of Vicksburg. It was of a substantial size, its final cost being $30,800. Hadad was his own contractor, and employed R. W. Ables as his supervisor or superintendent of the construction. He contracted for the electric wiring of the house with B & G Electric Company, and that work was done by Cole, apparently under an oral agreement. Booth was in the plumbing business. Hadad made a written contract with that partnership in the form of a letter, not dated, from Booth of Hadad as follows: 'We propose to furnish all labor & materials for roughing in & setting of fixtures & equipment to be furnished by you for the sum of $1020.00 tax included. This price includes all permits & fees exclusive of deposits for services normally required of the owner of the dwelling.' Other than these two contracts for electric and plumbing work, apparently Hadad himself supervised the construction of the house through Ables, his superintendent. He also purchased directly for himself all of the materials that went into the structure.

Sometime before the house was completed in November 1951, Hadad and Ables drove to Jackson, where Hadad purchased from the Wholesale Plumbing Company, of which O. C. Campbell was the manager, a Reznor suspension type of central heater. This kind of heater is one which is made for suspension from the ceiling. It contained a fan which would blow the hot air through metal ducts into the several rooms. It was a 300,000 B. T. U. heater, designed so that one-half of its capacity was available to be used on each side separately from the remainder of the unit. The total capacity of the heater was more than was needed for Hadad's house, but Hadad intended to use only one side of it, with half of its maximum capacity. The heater was delivered to the house by the seller, and Ables and other employees of Hadad put it up in the attic, in order, he testified, to get it out of the way of the workmen downstairs. Ables said that he had no intention of installing the heater or locating its position, because it was necessary for a licensed plumber and an electrician to do this. Hadad stated that he saw the heater in the attic after it was placed there by Ables; that he instructed Ables to put a piece of asbestos material under it in order, Ables said, to keep any oil or grease from falling off of the fan's motor into the ceiling of the room below.

Hadad testified that the only thing that Ables was doing was helping the plumbers and electricians to put the heater up in the attic; and that Ables did not install the heater. Hadad asked his architect, who drew the plans for the house, to put the heater in the attic because he understood that was the way 'they were installing heaters.' He told Ables to 'reinforce the location where the heater was to be placed.' He thought that the heater was designed for the attic, and the blueprints called for its location. There are no architect's blueprints or plans in the record. He saw the heater after Ables had placed it in the attic. Hadad said that he did not know whether it was a suspension type of heater; but that he told Campbell when he purchased it that it was going to be placed in the attic. There was no discussion with Campbell about how the heater was to be set. All that Ables did was to place the heater in the attic in order for the plumber to come along and install it. When it was installed, only the burners on one side were connected and in operation. Hadad said that Booth and Cole had agreed to and did install the heater.

Several days before November 19, 1951, Booth connected the gas pipes to the heater and placed a new valve in it in substitution for a defective valve. Cole connected electric wires to a utility-box on the heater, and connected an electric thermostat to it. Neither attempted to suspend the heater from the ceiling of the attic, as should have been done, but left it sitting on the asbestos over the wood flooring. On the morning of November 19 Booth turned one side of the heater on and left the house shortly thereafter, after some delay to make sure that it was operating satisfactorily. Around 2 o'clock that afternoon, November 19, Hadad was at his father's house next door when he was advised that the house was full of smoke. He ran over to it, went into the attic, and turned off the gas switch leading to the furnace. He noticed that the heater was red hot, and, he stated, so advised Booth, although Booth denied this. He immediately got Booth and Cole to come over to the house and to check the heater. Cole remained there for about thirty minutes and Booth stayed about two hours, examining the unit in order to ascertain whether it was working right. The house was too cold for the thermostat to work automatically, so Booth worked it back and forth several times manually. He determined that the heater was working satisfactorily, so he returned the keys to Mrs. Hadad. Both she and her husband said that Booth advised them that the heater was working all right, and that he did not think they would have any more trouble with it. All of Hadad's furniture had been moved into the house. The family planned to move in the next day. Early the next morning, around 1:30 a. m., November 20th, the house caught on fire. No one was occupying it, and no one had been in it after Booth had left around 4:00 p. m. on the afternoon before. The house and furniture were considerably damaged by the fire, and this suit was brought for the resulting damages.

The testimony of Joseph Hosemann, Chief of the Vicksburg Fire Department, and of J. D. McDonald, Deputy State Fire Marshal, who supervised the fighting of the fire and examined its effects thereafter, along with other testimony, establishes by the great weight of the evidence that the cause of the fire was the installation of the heater on the floor of the attic with a zero clearance. It should have been suspended from the ceiling with several inches of clearance under it. The heater was installed by placing it on a floor of pine sheeting in the attic. On top of this flooring and under the heater was a quarter-inch asbestos board. Chief Hosemann stated that Booth told him after the fire that he had had trouble with one of the valves when he installed the heater, but that he had put it in satisfactory operation. In Hosemann's opinion the burners on the heater were too close to the floor, the floor became overheated, and the radiation from the heater went through the asbestos board to the wood surface, thereby igniting it. This asbestos board will conduct heat. There were three or four safety devices on the heater, which could cut it off, but with the installation as made, he was of the opinion that it would have eventually ignited the flooring. McDonald testified that Booth told him 'he had put the heater up', and that he had had to replace a broken magnetic valve; that they had trouble with it a few days before and had reworked it. Cole testified that the only thing he did was to attach the electric wiring to the heater and to a thermostat. Booth's version was that his job was simply to roughin the pipe for the heater, and then to hook the gas pipes onto it. He said that Hadad asked him to light it,...