Lutheran Church of Good Shepherd of Baton Rouge v. Canfield

• Decision Date: 09 March 1970
• Docket Number: No. 7912,7912
• Citation: 233 So.2d 331
• Parties: LUTHERAN CHURCH OF the GOOD SHEPHERD OF BATON ROUGE, Louisiana v. John CANFIELD et al.
• Court: Court of Appeal of Louisiana — District of US

Page 331

233 So.2d 331

LUTHERAN CHURCH OF the GOOD SHEPHERD OF BATON ROUGE, Louisiana v.John CANFIELD et al.

No. 7912.

Court of Appeal of Louisiana, First Circuit.

March 9, 1970.

Rehearing Denied April 13, 1970.

Taylor, Porter, Brooks & Phillips, by William A. Norfolk, Dodd, Hirsch, Barker, Avant & Wall, by James D. Thomas, II, Dyer & Wilson, by Billy O. Wilson, Seale, Smith, Baine & Phelps, and Kantrow, Spaht, Weaver & Walter, Baton Rouge, for appellant.

Robert L. Kleinpeter, Baton Rouge, for appellees.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

This action seeks recovery of $31,299.28 damages sustained in a fire which originated in a heating unit in the newly constructed Lutheran Church of the Good Shepherd (Church), Baton Rouge, Louisiana.Plaintiff, The Lutheran Benevolent Association(Association) sues as subrogee of the Church.Defendants are (1)John H. Canfield, General Contractor (Canfield), who built the church; (2) Bergeron Sheet Metal Works (Bergeron), the subcontractor who installed two heating units in the church, and (3)The Payne Company, manufacturer of the heating systems.The trial court rejected plaintiff's demands against all defendants save Payne who was held liable under the doctrine of res ipsa loquitur.Payne has appealed contending the trial court erred in (1) applying the principle of res ipsa loquitur to the facts of this case; (2) failing to find Payne free of negligence, and (3) failing to hold the Church guilty of contributory negligence through its pastor-agent, Reverend Arthur C. Widiger.We find the doctrine of res ipsa loquitur inapplicable and also find that plaintiff has failed to establish negligence on the part of any defendant with that degree of certainty required by law.We reverse the judgment against Payne and dismiss plaintiff's action as to all defendants.

Canfield and Bergeron third partied Underwood, Verges & Associates, Inc.(Architects), the designing architects, and E. E. Verges, individually (Verges), member of the firm.These third partyplaintiffs contend they merely followed the Architects' plan, therefore, they should recover from the Architects and Verges in the event the contractor and subcontractor be found liable.The Architects and Verges denied liability and in turn third partied James V. Reuter, Consulting Mechanical Engineer who planned the heating systems under retainer by Verges.Canfield devolutively appealed asserting contributory negligence on the part of the Church .Alternatively, Canfield urges that either Payne, the Architects or Verges were negligent.Bergeron has likewise appealed reserving its rights against Payne, Architects, Verges and Reuter in the event Bergeron should be cast on appeal.Plaintiff has also appealed asking affirmation of the judgment rendered below.Alternatively, plaintiff seeks judgment against Canfield, Bergeron or the Architects.

In the year 1965, Canfield, as prime contractor, constructed a church for plaintiff, pursuant to complete plans and specifications prepared and furnished by the Architects.The plans called for installation of two heating units specified by Reuter who was engaged by the Architects to design the heating system and supervise its installation.The original plans called for the heaters to be installed in the open loft or choir of the building, one on either side.It was contemplated that the stairwell to the choir or loft would serve as a source of 'return air' to the units.However, in the course of installation, City Inspector, H. A. Martin(Martin), concluded it was inadvisable to use the stairwell as a source of return air.He also deemed it better to enclose the heaters in separate rooms so that they would not draw combustion air directly from the inside of the building in which the congregation would assemble.It is undisputed that consideration of Martin's recommendation prompted a change in the initial plans pursuant to consultations between Reuter, the Architects and Canfield.Instead of enclosing the heaters in rooms as suggested by Martin, it was decided to extend the intake ducts of the heaters to obtain fresh air from outside.

The heaters were shipped from Payne's factory no later than early June, 1965, each in two separate crates.One carton contained the main portion of the heater, the other held the draft diverter and combustion air duct.The combustion air duct is simply a flat panel which attaches to one end of the heater with metal screws.When correctly affixed, the open end of the duct fits flush with the top of the heater leaving a rectangular opening measuring approximately four by twenty-four inches.Through this aperture, combustion air is admitted into the heater from the immediate area in which it is installed.The draft diverter also attaches to the main heater housing by metal screws.The intake opening of the manufacturer supplied duct was not equipped with phalanges, holes or plates indicating that an attachment or extension was to be affixed thereto .

To obtain outside air as deemed advisable by Martin, the intake duct of each unit was modified.With the knowledge, consent and approval of the Architects, Canfield, Reuter and Martin, it was decided not to enclose the heaters in separate rooms but rather to extend the intake ducts into a crawl space which received outside air from a louver in the wall or roof of the building.Bergeron was directed to fabricate round metal ducts measuring approximately 12 inches in diameter.Each duct was equipped with an attachment to fit over the open end of the ducts furnished by Payne.The extensions were then run approximately five feet to the wall next to each heater.Openings were cut in the walls to admit the ducts into the crawl space.From there the ducts were run to a point near the louver, a distance of approximately 55 feet.

Essentially the heater consists of four basic components.They are (1) a burner assembly or combustion chamber consisting of the burner and a series of hollow metal casings known as heat exchangers; (2) a conditioned air compartment in which air is heated for distribution throughout the area to be heated; (3) an electrically operated fan, and (4) an air intake duct to provide air for combustion.The unit is one known as a gravity flow heater insofar as the flow of combustion air into the burner is concerned.The burner is what is known as an 'in shot burner' deriving its name from the fact that gas for combustion is injected into the burner.Combustion air is provided by means of an intake duct which is simply a flat panel attached to one end of the unit by screws.When properly attached the open end of the duct fits flush with the top of the heater leaving an opening approximately four by twenty-four inches for admission of air into the burner.The combustion chamber is separated from the conditioned air chamber by means of an insulated metal plate.Combustion takes place in the burner assembly by projecting the flame inside the hollow heat exchangers thus heating their outer surface.Heated air is produced by the fan drawing room air into the heater, propelling the air over the heated surface of the heat exchangers and thence into a system of distribution ducts.Openings (registers) in the distribution system permit the escape of heated air as desired throughout the building.The area in which air passes over the heat exchangers is known as the conditioned air compartment.At or near the top of the conditioned air compartment is an opening which permits the heated air to enter the distribution ducts.A system of 'collection boxes', which are attached to a flue or vent, provides a means of escape for exhaust gases and fumes which are thusly discharged from the combustion chamber through the roof of the building.The flue is equipped with a down draft diverter which prevents drafts or wind gusts from proceeding downward into the combustion chamber.This insures against an adverse gas-air mixture in the burner and also prevents extinguishment of the pilot light which is necessary for automatic operation.On or near the top of the burner assembly is situated a safety switch to sense and control temperature in the combustion chamber.To prevent overheating, this switch is factory set to break the electrical circuit to the gas supply valve and shut off the gas should the temperature in that area exceed 230 .This particular feature is an extra safety device used exclusively by Payne.A bulkhead consisting of an insulated metal panel separates the burner assembly from the conditioned air compartment.At or near the point where the fan blows air out of the conditioned air compartment into the distribution system, is situated a safety device known as a high limit switch.This instrument is set by the manufacturer to stop the flow of gas should the temperature in the conditioned air compartment exceed 250 .The fan is equipped with a pre-set switch which turns the fan on when the temperature in the combusion chamber reaches 110 --120 .Inside the conditioned air compartment is a manual reset switch whose purpose is to react and shut off the gas should the blower or fan cease to function.Gas is furnished the burner assembly by means of an electrically controlled gas valve and a regulator whose purpose is to keep gas pressure constant.Temperature in the building is controlled by a thermostat which electrically activates the gas supply valve to turn the gas on and off to maintain room temperature at the desired level.

The heaters were installed in or about June, 1965.In early to mid September, 1965, construction progressed to the point the building commenced being used as a church.Shortly after occupancy, three service calls concerning the heaters' operations were made by Bergeron's employee, M. P. Bergeron.Between occupancy in September, 1965 and the occurrence of the fire on January 25, 1966, a gas line was extended from the meter furnishing gas to the heaters to an...