Listerman v. Day & Night Plumbing & Heating Service, Inc.
| Decision Date | 13 November 1964 |
| Docket Number | No. 8314,8314 |
| Citation | 384 S.W.2d 111 |
| Parties | Margaret LISTERMAN and John W. Listerman, Plaintiffs-Respondents, v. DAY AND NIGHT PLUMBING AND HEATING SERVICE, INC., Defendant and Third-Party Plaintiff-Respondent, and EMPIRE SHEET METAL COMPANY, a corporation, Third-Party Defendant-Appellant. |
| Court | Missouri Court of Appeals |
White, Dickey & Skelton, Springfield, for third-party defendant--appellant.
Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for defendant and third-party plaintiff--respondent.
William A. Wear, Springfield, for plaintiffs--respondents.
Plaintiffs, John W. Listerman and Margaret Listerman, husband and wife, sued Day and Night Plumbing and Heating Service, Inc. (hereinafter called Day and Night), for damage to plaintiffs' 1 1/2-story frame dwelling house at 1925 West Lee Street, Springfield, Missouri, by reason of a fire on October 20, 1962, alleged to have resulted from negligence in the installation of a 'free-standing fireplace heater.' By leave of court, Day and Night, as third-party plaintiff, filed its third-party petition against Empire Sheet Metal Company, a corporation (hereinafter called Empire), as third-party defendant, predicated on Empire's alleged obligation to indemnify Day and Night for whatever sum the latter might be required to pay plaintiffs and for attorneys' fees in defendaing against plaintiffs' claim. In due time, the case was tried by the court sitting as a jury, with plaintiffs proceeding on their original petition against Day and Night, as sole defendant, and with Day and Night at the same time proceeding on its third-party petition against Empire, as third-party defendant. The court's judgment (1) found the issues for plaintiffs on their petition, assessed their damages at $1,250, and adjudged recovery thereof from Day and Night, (2) found the issues for Day and Night on its third-party petition, assessed its damages at $1,250 and the additional sum of $250 as attorneys' fees, and adjudged recovery thereof by Day and Night from Empire, and (3) taxed all costs against Empire. Its timely motion for new trial having been overruled, Empire has perfected this appeal 'from the judgment entered in this action.' Neither plaintiffs nor Day and Night filed a motion for new trial or notice of appeal; and counsel here agree that Day and Night has satisfied the judgment obtained by plaintiffs on their petition.
Plaintiff Margaret 1 purchased the 'freestanding fireplace heater' from Sears Roebuck and Company in April 1962 and shortly thereafter the heater, knocked down and packaged, was delivered to the Listerman home. Sears furnished a 12-page booklet (hereinafter referred to as Sears' instruction booklet), containing precise and detailed instructions for installation of the heater; and, at the same time, Sears recommended Day and Night as an independent installer. Pursuant to that recommendation, plaintiff contacted James A. Raney of Day and Night; and, after discussion of the proposed installation, Raney stated (so plaintiff testified that 'he would contract the job' and she said that she 'would trust him to put it in for [her]--he would know what to do' and delivered Sears' instruction booklet to him.
The eight-inch insulated flue pipe from the heater was not to be vented into a chimney but was to run vertically through the first-floor ceiling, through an attic space, and out through the roof; and, knowing that 'it would take a sheet metal man to do that work,' Raney 'engaged Empire to do the work for us.' In paragraph 2 of its third-party petition, Day and Night alleged that it 'employed the third-party defendant [Empire] as an indepenaent subcontractor for the purpose of making said installation'; and, in its answer to the third-party petition, Empire admitted the quoted allegation. (All emphasis herein is ours.) The undisputed evidence was that Empire's employees installed the heater, the insulated flue pipe, and the rectangular metal casing around the flue pipe between the fireplace unit and the first-floor ceiling where the pipe otherwise would have been open to view and also above the roof where the pipe otherwise would have been subject to the elements, and that no employee of Day and Night participated in, or was present during, the installation by Empire. In short, both the pleadings and the evidence established that Empire's legal status with respect to the installation was that of an independent subcontractor within the contemplation and meaning of the widely-accepted definition that '[a]n independent contractor [or subcontractor] is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking. 2
The flue pipe supplied with the heater was 24-gauge galvanized pipe completely insulated with fiberglass, one inch in thickness, held in place around the pipe by 'a chicken-wire mesh.' But the pipe furnished with the heater only reached about twelve to eighteen inches above the first-floor ceiling, so Empire prepared and set additional 4-foot sections of pipe which extended upward through the attic space and roof and to the top of the upright metal casing, about 5 1/2 feet above the level at which the casing was attached to the roof. However, the top of the metal casing still did not extend above the ridgepole, because the pitch of the roof was 'very steep.'
Installation of the heater and flue pipe was completed by Empire in August 1962, after some unavoidable delay incident to preparation of the fire brick base by a firm not identified in the transcript. Before using the heater, plaintiff called Raney of Day and Night and 'asked him for an inspection'; and, after he had 'looked it over real good,' Raney told plaintiff that 'the job looked all right to me.' On October 20, 1962, plaintiff burned some paper and empty milk cartons in the heater, that being (so she said) the first fire in it. Soon after that fire was started, a neighbor notified plaintiff that the 'roof was smoking.' The fire department responded to plaintiff's call; but, before the fire was extinguished, a hole some 'six feet square or bigger' (hereinafter referred to simply as the hole) had been burned through the roof, the firemen had chopped another opening in the roof and had pulled down a ceiling in an upstairs bedroom (adjacent to the attic space through which the flue pipe ran) to reach the fire, and the rafters had been charred deeply over a considerable area. No complaint is made here concerning the amount of damages assessed.
The basic factual issues upon trial of plaintiffs' claim of negligent installation were (1) as to whether the flue pipe had been left bare and uninsulated for a space of four to five inches at or just below the roof and (2) as to whether heat from the flue pipe had started the fire. On the first issue, the direct evidence was in irreconcilable conflict. Plaintiff Margaret testified that, both before and after the fire, she had seen the unisulated flue pipe, bare for a vertical distance of four or five inches just below the roof, 'enough times that I was worried'--'I would say about ten times'; and that, in fact, her observation of this insulation gap before the fire 'was the reason I was calling [upon Raney] for an inspection.' However, she did not mention the insulation gap in her telephone conversation with Raney, and she did not point out the gap to him personally because she worked outside the home 'from seven till five' and was not at home when Raney made his prefire inspection.
On the other hand, Raney of Day and Night stated that there was no insulation gap and no exposed section of the flue pipe when he inspected the installation before the fire; and both Harold Dooley of Empire, who 'built' the additional sections of flue pipe and installed them, and Ralph Cline of Empire, who assisted in installation, insisted that, when they completed and left the job, there was no insulation gap and no portion of the flue pipe was bare.
As Empire states in its brief, 'everyone admits' that there was a gap in the insulation and chicken-wire mesh after the fire; and Empire poses the query, 'is it not probable that a fireman working on the roof cut open the wire and insulation for purposes of inspection to make sure that all possible sources of burning had been extinguished?' But there was no evidence to that effect, and any such finding would rest on nothing more than sheer speculation and unbridled surmise.
When Raney of Day and Night inspected the flue pipe in the attic area of the Listerman home about 11 A. M. on Monday, October 22, 1962, in response to plaintiff Margaret's postfire telephonic request on Saturday, October 20, he found (so he testified) no insulation gap--'it looked like it did when I first saw it' before the fire. No representative of Empire made a postfire inspection of the Listerman home until Clarence Dooley, Empire's presidenttreasurer, went there some three or four weeks after the fire. Dooley then found (so he stated upon trial) that the chickenwire mesh Shortly thereafter Dooley, accompanied by Raney and Green of Day and Night and by Willard Sharp, fire warden of the Springfield Fire Department, returned to the Listerman home and Dooley took Sharp 'personally inside at that time and showed him where the wire had been cut and the insulation removed.' According to Dooley, Sharp 'told me that he hadn't noticed it before.'
The testimony of fire warden Sharp, a witness for plaintiffs, did not run in the same channel as that of Raney and Dooley. Sharp made three postfire trips to the...
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