Holland Furnace Co. v. Nauracaj
| Decision Date | 19 April 1938 |
| Docket Number | 15685. |
| Citation | 14 N.E.2d 339,105 Ind.App. 574 |
| Parties | HOLLAND FURNACE CO. v. NAURACAJ et al. |
| Court | Indiana Appellate Court |
Louis M. Hammerschmidt and Milton A. Johnson, both of South Bend Ralph E. Allen, of Ligonier, and Ernest Merrick Hawkins, of Fowler, for appellant.
Norton & Norton, of Crown Point, Fraser & Iham, of Fowler and Carl Fancheschini, for appellees.
Appellee Sophia Nauracaj instituted this action against appellant and appellee Brecka to recover damages alleged to have resulted from the negligence of appellant in the installation of a furnace on her property, pursuant to a written contract entered into by appellant with appellee Brecka, who was, at the time, a tenant of appellee Nauracaj and in possession of the premises where the furnace was installed. The amended complaint was in one paragraph. Appellant unsuccessfully demurred to this complaint for insufficient facts, and reserved an exception to the ruling of the court. Appellant then filed an answer in three paragraphs, the first a general denial, the second alleging in substance that appellee Nauracaj was not in possession or entitled to the possession of the premises during the period in which the furnace was installed, and the third alleging that all entries by appellant on the premises were with the consent and permission of appellee Brecka, while Brecka was in possession of the premises as tenant of appellee Nauracaj. The issues were closed by a reply in general denial. Before the trial of the cause, appellee Nauracaj filed ten interrogatories to be answered by appellant under oath. A motion filed by appellant to strike out these interrogatories was overruled, and the interrogatories were then answered. The cause was tried by a jury which returned a general verdict in favor of appellee Brecka and against appellant, assessing damages in favor of appellee Nauracaj in the sum of $5,000, together with answers to interrogatories. Judgment was entered in accordance with the general verdict. In due time appellant filed its motion for a new trial which was overruled, and this appeal followed. Appellant assigns as error for reversal: (1) Alleged error in overruling the demurrer to the complaint (2) alleged error in overruling the motion to strike out the interrogatories; (3) alleged error in overruling the motion for a new trial. The causes for a new trial presented by appellant's brief are: Error of the court in the giving of each of the instructions upon its own motion, error in the admission and exclusion of certain evidence, and error in refusing to direct a verdict.
That part of the complaint necessary to dispose of the objections urged by the demurrer is substantially as follows: That on the 12th day of September, 1928, appellee Nauracaj was the owner of certain real estate situated in East Chicago, Ind.; that on said date she leased the premises to appellee Brecka to be used as a dancing pavilion and roller skating rink, and appellee Brecka entered into possession thereof; that appellant, Holland Furnace Company, is a corporation engaged in the sale and installation and furnishing of its furnaces in homes and buildings, said furnaces being used for heating purposes; that on or about October 3, 1928, appellant and appellee Brecka, without the consent of and against the direct order and prohibition of appellee Nauracaj, planned to install a furnace on said premises, and did install said furnace in appellee Nauracaj's building situated upon appellee Nauracaj's real estate; that said real estate was within the corporate limits of the city of East Chicago; that the appellant and appellee Brecka, in so doing, wantonly and recklessly, and against the express order of appellee Nauracaj, and without her consent, ignored and violated the building ordinances of the city of East Chicago and its Municipal Code, and section 248 of said Municipal Code; that the appellant and appellee Brecka did then and there, without any care whatever, and without any lawful right, and with wanton, reckless negligence, install a metal furnace less than 10 inches from unprotected woodwork in said building; that they then proceeded, without any knowledge or notice to the owner, and against her express order, to build a fire in said furnace; that as a result of their unlawful, careless, and negligent acts, the woodwork and building caught fire, burning a large hole in the floor and the adjoining timbers and supports; that said fire was finally extinguished, whereupon appellee Nauracaj demanded that said furnace be removed from her building; that immediately thereafter appellant and appellee Brecka proceeded to reinstall said furnace in said building; that the acts of said appellant and appellee Brecka were unlawful and were performed wantonly, recklessly, without any regard to appellee Nauracaj's rights in her property, they knowing that the result of their placing of the said furnace in said building and permitting fire therein would be disastrous to said building and against appellee Nauracaj's rights as the owner of said building, and that said building very probably would be damaged or burned entirely by the placing of said furnace therein in the manner and style contemplated by appellant and appellee Brecka; that appellant and appellee Brecka, in the installation and placing of said furnace in the building, violated the provision of section 248 of the Municipal Code of said city of East Chicago, which provided that all furnaces shall be placed on a foundation of brick or stone, by installing said furnace without placing it upon a foundation of brick or stone, without placing it at least 10 inches away from combustible wood material, and without protecting the wooden materials of the building, so as to prevent the same from igniting and burning; that said furnace was installed upon a wooden stage in said building; that around the furnace, and as a part of the furnace, was placed a metal covering; that appellant and appellee Brecka failed to provide sufficient open space at the bottom of said covering and adequate out conveyance to allow the air to conduct the generated heat upward and out over the top thereof, so that when a fire was built therein, the heat from said furnace became so intense in the space between the furnace and the covering, both above and below, that the wooden flooring, timbers, and wood constituting said stage, and the parts of the building near said furnace, became ignited and caught fire and burned, spreading through all parts of said building, by reason of which the building was damaged to the extent as defined by the allegations of the complaint; that all of said damages were sustained as the result and were proximately caused on account of and by the unlawful, wanton, reckless, careless, and negligent acts of the appellant and appellee Brecka, and each of them, in placing said furnace as aforesaid, in building a fire therein, and in permitting fire to be built therein as aforesaid, all against the appellee Nauracaj's orders and her prohibition; that appellee Nauracaj did not consent to any of said acts or contribute in any way to the damage of her said property.
Appellant's objections to the complaint, as disclosed by the memorandum attached to its demurrer, are: (1) It does not disclose such a relation between appellee Nauracaj and appellant that the latter will be answerable in damages to the former for the injuries complained of. That is, the complaint does not allege any contractual relation existing between appellee Nauracaj and appellant. It does not disclose any privity of contract. It does not allege the breach of any duty owing by appellant to appellee Nauracaj. (2) The complaint does not disclose that the negligence of appellant was the proximate cause of the injury.
In support of the proposition asserted by appellant in its memorandum, that appellant owed no duty to appellee Nauracaj because of no privity of contract between them, appellant urges the application of the general rule, that: "Where an independent contractor is employed to construct or install any given work or instrumentality, and has done the same and it has been accepted by the employer and the contractor discharged, he is no longer liable to third persons for injuries received as a result of defective construction or installation."
The above rule is supported by numerous decisions, including those of our own state, and is approved by all of the text-writers. Wharton, Neg. 368; Moll, Ind. Contractors, § 177, p. 291. See, also, § 44, Vol. 20, R.C.L. p. 49; § 22, 45 C.J. p. 649; Daugherty v. Herzog, 1896, 145 Ind. 255, 44 N.E. 457, 32 L.R.A. 837, 57 Am.St.Rep. 204.
It is broadly true that where the charge of negligence is based upon a breach of duty arising out of contractual relations no cause of action arises in favor of one not in privity to such contract. 'As well settled and as authoritative as the general rule itself are certain exceptions. Such exceptions arise where one has, by sale or otherwise, put into circulation, so to speak, some noxious or imminently dangerous thing which is likely to cause serious injury to any person into whose hands it may come, including poisons not labeled, explosives, vicious animals, etc. These exceptions apply, not only to sales of personalty, but to the construction of structures imminently dangerous to human life, while such structure is within the possession and control of the wrongdoer. If the thing sold or constructed be not imminently dangerous to human life, but may...
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