Miller v. Young, 53457

• Citation: 168 N.W.2d 45
• Decision Date: 06 May 1969
• Docket Number: No. 53457,53457
• Parties: James N. MILLER et al., Appellees, v. Richard H. YOUNG et al., Appellants.
• Court: United States State Supreme Court of Iowa

Page 45

168 N.W.2d 45

James N. MILLER et al., Appellees, v. Richard H. YOUNG et al., Appellants.

No. 53457.

Supreme Court of Iowa.

May 6, 1969.

William McKinley, of Newman, Redfern, McKinley & Olsen, Cedar Falls, for appellants.

Dennis Damsgaard, of Christoffersen & Damsgaard, Cedar Falls, for appellees.

MASON, Justice.

In this law action tried to a jury plaintiffs seek recovery for property damages and personal injuries allegedly sustained as a result of defendants' negligence in the installation of heating equipment in the home plaintiffs occupied.

James N. and Doris Miller and their five minor children are plaintiffs. Defendants are owners and operators of Young Heating Company or Young Plumbing and Heating Company and their employee Paul Canfield. Ownership of the company was widely spread among the members of the Young family in 1963. Neither this diversity of ownership nor the fact that at different times the business of the company had been carried on in two different names is significant here.

For simplification the business entity and defendants-owners will be referred to as Young. Relevant business dealings with Young and Canfield were conducted entirely by the principal plaintiff James N. Miller, hereafter referred to as Miller. References to other plaintiffs will be made by their specific names.

As each plaintiff makes a separate claim, the case involves seven different actions for damages. Defendants' liability, if any, rests on the same basis as to each plaintiff.

I. The trial court withdrew the issue of damages for permanent injury, future pain, all claims for medical expense, past, present and future, and loss of earnings. The only elements of damages submitted to the jury were pain, suffering and discomfort of each plaintiff between October 1, 1963 and September 29, 1964, and damages to paneling in the basement recreation room not to exceed $2,673.07.

The jury returned verdicts of $14,848.91 for the father-husband, $10,000 for the mother-wife and $2000 for each child.

The trial court overruled defendants' motions for judgment notwithstanding the verdict as to all plaintiffs and overruled their motion for new trial as to the five plaintiff children and to Mr. Miller if he filed a remittitur of all of his judgment in excess of $8763.07 and as to Doris Miller, if she filed a remittitur of all her damages in excess of $8000--reductions of $6175.84 and $2000 respectively.

The remittiturs were filed and defendants appeal, asserting error in overruling their motions for directed verdict, judgment notwithstanding the verdict and new trial.

II. After Miller bought this house in July 1963, he discovered it needed many repairs. He had it completely redecorated so it would be equivalent to a brand new house and contracted with Young for installation of air conditioning units, two new furnaces and two new hot water heaters in the months of August, September and October, 1963. Defendant Canfield handled the contract between Miller and Young. When the Miller family moved into the new house about October 8, 1963, Young's work had been completed. At first they used the air conditioner which worked fine, and the heat later in the fall as needed. As soon as the heat came on to any appreciable extent, water started condensing on the lowest tier of windows and moved up approximately six feet.

When the heat first came on in the fall of 1963 Doris Miller thought she could smell gas. Miller testified he didn't think she could, although he could smell a faint odor.

When these conditions persisted Miller called Canfield a number of times at his office and home. Canfield came to the Miller home only once but on other occasions told Miller to disregard the slight odor and the water vapor. Because of other work done by Young in Miller's office and other home, he had complete reliance on Canfield's competency and thought the water vapor would disappear. Canfield made recommendations which failed to cure the problem and it became more pronounced early in 1964.

Miller described in detail the condition caused by the water vapor. Since defendants concede their negligence was a cause of excessive moisture in the home as will appear hereinafter, we will not describe this result further.

Miller testified that in the fall of 1963 and early months of 1964 there was a 'skunky' odor in the house but not the odor of heating gas. He felt he was being afflicted with the family laziness, was lethargic and slowed up appreciably, slept at odd times during the day when he was home, slept longer than usual or has since. During this period he had a general 'blah' feeling, headaches and didn't feel attentive. He felt fine during the summer of 1964, his health problem was only during the heating season; when the faulty installation was discovered and corrected sometime after September 29, 1964, he went back to sleeping the usual number of hours, his headaches cleared up and the lethargic feeling disappeared.

Miller described the children's condition as about the same except they were cranky and irritable, slept much longer and those who were articulate complained of headaches which was abnormal for these healthy children.

Doris testified that between October 1, 1963 and September 29, 1964, she didn't feel well, had chest pains and stomach cramps, dropped out of her clubs or organizations, didn't feel well and neither did her children. She described their vomiting as passing from one child to the other weeks apart, the condition as a constant nightmare and mess, the children as cranky, with the oldest complaining of headaches. Although she had headaches, they were nothing compared to her chest pains and stomach cramps.

Doris went to the doctor for the chest pains but he found nothing organically wrong.

She testified that the night of September 27, 1964, she smelled gas and persuaded Miller to call Iowa Public Service. They came out, found a small leak which they fixed and told Millers not to worry if they smelled a little gas as it would lurk in the corners a day or so.

September 29 she got three of the children off to school, awakened her husband who had fallen asleep reading the newspaper, dressed the two younger children and put them in the living room to play. After Miller left, Doris went about her kitchen work. When she couldn't hear the children talking--the little boy was five, the little girl 1 1/2 and both were usually quite noisy--she went into the living room to check on them. She then had a tremendous headache. The children were both asleep on the floor. She helped the boy and carried the girl outside, put them on some summer furniture. The boy woke up, told his mother he had to vomit and wanted a towel. When she went back into the house Doris realized the odor in the air was overpowering and made her sicker than she already was. She asked a neighbor to look after the children while she called Iowa Public Service and opened the doors and windows.

After the utility representative came to the house and the improper venting of the heating equipment was later corrected, the problems of the headaches and the children's sickness cleared up. Doris had never suffered from chest pains, stomach cramps and headaches before the heat was turned on.

Mrs. Miller detailed the discomfort and suffering caused her and the family by the excessive moisture in the home. The whole affair had caused her to become apprehensive and nervous, although there had been some improvement at time of trial.

Dr. William C. Drier, a general practitioner in Waterloo since 1956 who had been the Miller family doctor for approximately 10 to 15 years, testified asphyxiation is a lack of oxygen circulation in the blood stream and could be from several causes. He explained the dependency of all body tissues upon oxygen for their normal function, the affinity of carbon monoxide for hemoglobin, and indicated if a person were to inhale some air that contained both oxygen and carbon monoxide the hemoglobin would pick up the carbon monoxide first.

Dr. Drier described the primary symptoms of people who have inhaled carbon monoxide as 'headaches, dizziness, generalized fatigue, easy fatigability, some nausea, vomiting, depending upon the percentage of the degree of asphyxiation; later on, perhaps, convulsions and then they are comatose, unconscious;' any minute amount of carbon monoxide in the air would cause a simple headache, more would be required to create fatigue.

When he had seen Doris between September 1963 and September 1964, she complained of chest pains, some nausea, shortness of breath and abdominal pains. He referred her to Mayo Clinic but they found no organic disease.

In a hypothetical question the doctor was asked whether, assuming in connection with complaints made by her to him, Doris Miller was at various times between September 1963 and September 1964 exposed to carbon monoxide, had inhaled some carbon monoxide gas even in small amounts, he had an opinion based on reasonable medical certainty as to the connection of her complaints with inhaling carbon monoxide gas. He testified it is possible these symptoms could have been due to inhalation of a gas of some sort and in retrospect it is possible and probable.

In another hypothetical question the doctor was asked to assume that during the period involved the children were inhaling even small quantities of carbon monoxide gas and suffering from headaches, lethargy and general dullness. He was then asked if he had an opinion whether these symptoms could be caused by inhalation of small quantities of carbon monoxide gas.

The doctor had not seen the children in connection with these complaints but testified if the children exhibited these symptoms and if there was definite evidence of carbon monoxide in the air, it is both possible and probable their symptoms could have been referable to that gas.

Canfield did not inspect the chimney of the Miller home prior to the installation or...