Mack v. Hugh W. Comstock Associates, Inc.

• Decision Date: 16 March 1964
• Citation: 225 Cal.App.2d 583,37 Cal.Rptr. 466
• Court: California Court of Appeals Court of Appeals
• Parties: George E. MACK and Gladys Elizabeth Mack, Plaintiffs and Appellants, v. HUGH W. COMSTOCK ASSOCIATES, INC., a corporation, Boothe Radiant Heat, Inc., a corporation, Defendants and Respondents. Civ. 21380.

Page 466

37 Cal.Rptr. 466

225 Cal.App.2d 583

George E. MACK and Gladys Elizabeth Mack, Plaintiffs and Appellants, v. HUGH W. COMSTOCK ASSOCIATES, INC., a corporation, Boothe Radiant Heat, Inc., a corporation, Defendants and Respondents.

Civ. 21380.

District Court of Appeal, First District, Division 2, California.

March 16, 1964.

Drummond & Murphy, Monterey, Patricia Lane, Carmel, for appellants.

Lacey, Holbrook & Meyenberg, John R. Lamoreaux, Salinas, for respondent Hugh W. Comstock Associates, Inc.

TAYLOR, Justice.

The plaintiffs appeal from a judgment of dismissal entered on an order sustaining the defendants' demurrers to their amended complaint and granting a motion to strike after plaintiffs had declined an opportunity to amend. The chief questions on appeal concern the proper measure of consequential damages recoverable in an action for breach of warranty and the statute of limitations.

The facts alleged by the second amended complaint are as follows: The plaintiffs, George and Gladys Mack, husband and wife, entered into a written contract in August 1954 with the defendant, Hugh W. Comstock Associates, Inc., hereafter referred to as Comstock, to have the latter construct a home in Pebble Beach at a cost of $110,923. The general contractor Comstock thereafter secured a heating subcontractor, defendant Boothe Radiant Heat, Inc., hereafter referred to as Boothe, to furnish and install a radiant heating system in accordance with the plans and specifications. Under the terms of their written agreement, Boothe expressly warranted to Comstock that the heating system would be free from defects of workmanship and materials for a period of five years, of merchantable quality and fit for the use intended. Comstock and Boothe in turn expressly and impliedly made the identical warranties concerning the radiant heating system to the plaintiffs.

The plaintiffs' home was completed about November 12, 1956. On numerous occasions in 1957, beginning in March, shortly after the plaintiffs moved in, and then on approximately six occasions in 1958 and 1959, leaks appeared in the radiant heating system. Leaks also appeared on April 17, 1960, May 16, 1960, August 13, 1960, October 23, 1960, March 30, 1961, July 10, 1961, July 17, 1962, and August 8, 1962.

Immediately on discovering each of these leaks, the plaintiffs notified defendants, who promptly attempted to repair the heating system and on each occasion assured the plaintiffs there would be no further leaks. As a result of the leaks, the baseboards in the plaintiffs' home had to be removed, the custom carpeting and padding rolled up and replaced, as well as the gas shut off, boilers drained, furniture moved, etc. Plaintiffs also hired a watchman to inspect the premises for leaks in the heating system when they were away from home. In October 1962, the plaintiff's necessarily abandoned the radiant heating system installed by the defendants and replaced it with another system.

The complaint further alleged that the defects in workmanship and material which caused the leaks in the heating system resulted in great damage to the plaintiffs' home and furnishings and caused the plaintiffs mental anguish and humiliation. The complaint sought general damages in the sum of $25,000; $9,673.46 for the loss of carpeting, padding, new plumbing, painting, repairs an the expenses of installing a new heating system, and $350 living expenses during the repair and replacement of the carpeting and heating system. ¹

Defendant Boothe demurred generally and also specially, alleging that the cause of action was barred by the statute of limitations (Code Civ.Proc. §§ 337, subd. 1; 338, subd. 3) and that the complaint was uncertain because it could not be ascertained how the plaintiffs had sustained general damages of $25,000. Defendant Comstock also demurred generally and specially, alleging that all causes of action were barred by the statute of limitations (Code Civ.Proc. §§ 340, subd. 3; 338, subds. 2, 3; 337, subd. 1; 339, subd. 1). Thereafter, Comstock filed its motion to strike all portions of the complaint except those dealing with the breach of warranty. The trial court entered its order granting the motion to strike, sustaining the demurrers, and giving plaintiffs 15 days within which to amend the complaint '* * * to state a cause of action for damage to the radiant heating plant itself, or recovery of the cost thereof, but not for any resultant damages or any other consequential damage to any other property or person.' Plaintiffs declined to amend and the court entered the judgment of dismissal from which this appeal is taken.

The trial court erred in ruling that the appellants could not recover for the damage to their real and personal property as well as other consequential damages resulting from the defective radiant heating plant, designed, manufactured and installed by the respondents.

The transactions between the parties were contracts for labor and materials rather than contracts of sale under the Uniform Sales Act (Civ.Code § 1789, subds (6), (7); Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Cavanaugh, 217 A.C.A. 547, 549, 32 Cal.Rptr. 144) but the causes of action and measure of damages for breach of implied warranty are the same in both instances (Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 12 Cal.Rptr. 257, 360 P.2d 897). The liability need not be viewed as purely contractual, as the appellants contend, or purely delictual, as the respondents contend. The measure of damages for breach of warranty (Civ.Code § 1789, subd. (6)) is substantially identical to that set forth for negligence actions (Civ.Code §§ 3300, 3333; Tremeroli v. Austin Trailer Equip. Co., 102 Cal.App.2d 464, 480, 227 P.2d 923; Rutherford v. Standard Engineering Corp., 88 Cal.App.2d 554, 568, 199 P.2d 354). The same rules of foreseeability apply to an express contractual warranty (Maecherlein v. Sealy Mattress Co., 145 Cal.App.2d 275 at 278, 302 P.2d 331) as to an implied warranty (Aced v. Hobbs-Sesack, supra). The modern view is that in consumer transactions (as distinguished from mercantile transactions), the recovery is best measured by the tort yardstick allowing recoupment for all damages proximately resulting from the breach (Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897; Ezer, The Impact of the Uniform Commercial Code on the California Law of Sales Warranties, 8 U.C.L.A. 281, 307; Prosser, Strict Liability to the Consumer, 69 Yale L.J., 1099).

It is well settled in California that in an action for a breach of warranty, consequential damages can be recovered (Grupe v. Glick, 26 Cal.2d 680, 160 P.2d 832). This court recently held lost profits, generally a much more controversial component of damages than those alleged in the instant complaint, recoverable in an action for breach of warranty (Tremeroli v. Austin Trailer Equip. Co., supra, 102 Cal.App.2d at 481 and 482, 227 P.2d 923). Authorities in other jurisdictions have allowed property and other consequential damages to homeowners resulting from defective or defectively installed furnaces or stoves (Handy v. Holland Furnace Co. (1960) 11 Wis.2d 151, 105 N.W.2d 299; Williams v. Ballenger et al. (1952), 87 Ga.App. 255, 73 S.E.2d 509).

The respondents had the duty to provide a radiant heating system fit for the purpose for which it was intended and the appellants had a right to rely thereon (Handy v. Holland Furnace Co., supra). The heat was supplied from hot water pipes installed in the floor and it was clearly foreseeable that a failure or leakage in the pipes could result in damage to the floors, as well as the woodwork and contents of the rooms, thus making the home temporarily unlivable. These items and the reasonable expenses entailed thereby are properly within the concept of allowable consequential damages.

We agree with the trial court's ruling that mental suffering is not a proper item of damages in this case. Although damages for...