Plunkett v. United Elec. Service

• Decision Date: 12 January 1948
• Docket Number: 38119.
• Citation: 36 So.2d 704,214 La. 145
• Court: Louisiana Supreme Court
• Parties: PLUNKETT et ux. v. UNITED ELECTRIC SERVICE.

36 So.2d 704

214 La. 145

PLUNKETT et ux. v. UNITED ELECTRIC SERVICE.

No. 38119.

Supreme Court of Louisiana

January 12, 1948

On Rehearing June 15, 1948.

Appeal from First Judicial District Court, Parish of Caddo; James U. Galloway Judge.

Thompson & Thompson, of Winnsboro, and Blanchard, Goldstein Walker & O'Quin, of Shreveport, for defendant-appellant.

Hussey & Smith, of Shreveport, for plaintiffs-appellees and for intervenors-appellees.

HAMITER Justice.

The residence of plaintiffs (John H. Plunkett and his wife), situated at Municipal No. 217 Boulevard Street in the City of Shreveport together with its contents, was partially destroyed by fire during the early morning of December 25, 1943. For the loss sustained they were paid by the Louisiana Fire Insurance Company of Baton Rouge (insurer of the house) $6,677.28 and by the American Central Insurance Company of St. Louis, Missouri (insurer of the personal property) $2,000, the limit of its policy.

Thereafter, plaintiffs instituted this suit to recover damages from the United Electric Service, a commercial partnership domiciled in the City of Monroe, charging that the fire resulted from a central heating unit installed in the attic of their house by that defendant. They prayed for an award in the total amount of $14,815.78, subject to and with recognition of the subrogations given the insurers for the sums respectively paid to them, the claim being itemized as follows:

A. Damages to house and loss of use of occupancy thereof during reconstruction, $6677.28;

B. Value of furnishings, fixtures and personal property destroyed $6638.50;

C. Cost of moving from and to said house, inconvenience in being deprived of use thereof, lack of heat, and physical and mental anguish, $1500.00.

For a cause of action, plaintiffs alleged:

'That petitioners do not know the exact cause of the failure of said heating unit to properly function, but aver that if said heating furnace had been properly and carefully installed that same would have operated efficiently and would not have burned petitioners' said house, and petitioners further aver that the proximate cause of the fire which partially burned petitioners' house was the faulty installation or adjustment of said heating unit by said United Electric Service.'

Joining plaintiffs in the suit, by way of intervention, were the mentioned insurers. Each asked judgment, under and by reason of its subrogation, for the amount of insurance paid.

In the answer defendant admitted the installation of the heating unit, denied that it caused the fire, and averred that it was installed with the utmost care and in a proper manner.

After a trial of the merits defendant was condemned to pay to the Louisiana Fire Insurance Company of Baton Rouge $6,098.15; to the American Central Insurance Company of St. Louis, Missouri, $2,000; and to plaintiffs, $1,000.

From the judgment defendant appealed. Answering the appeal were the Louisiana Fire Insurance Company of Baton Rouge and the plaintiffs, they praying that the judgment be increased in their favor, respectively, to $6,677.28 and $5,988.50.

In his well considered written reasons for judgment the trial judge correctly set forth the undisputed pertinent facts of the litigation as follows:

'In December of 1943, defendant entered into a verbal agreement with plaintiffs to furnish and install in plaintiffs' residence, for the price of $500.00, a central heating unit to replace the one then in the house which was considered of inadequate capacity. Plaintiffs' house was completed in February of 1941, and was originally equipped with air ducts and a vertical type furnace or heating unit which was located in a closet on the first floor. The one installed by defendant to replace it was a Lennox horizontal type gas furnace consisting of main unit (furnace), fan, motor and controls. In installing the unit, defendant connected the existing duct work in the house to a small new amount of duct work by defendant made necessary by the change in location of the heating unit. The furnace installed by the defendant burns natural gas to heat air which is distributed through the ducts to the various rooms of the house by a blower fan operated by a motor using electric current serving the house. Defendant extended the gas pipes from the first floor to the attic and extended the electric wires in the attic, to connect both with the unit.

'Defendant, domiciled in Monroe, Louisiana, sent three of its employees to Shreveport and they did the work of installing the heating unit in the Plunkett home. No permit was obtained by defendant or any of its employees from the Building Inspector, the Plumbing Inspector or Electrical Inspector of Shreveport, nor was the work inspected by these officials as required by ordinance of the City of Shreveport. No pressure tests were made on the gas extension lines installed. These employees of defendant began the installation work about three o'clock in the afternoon of December 22nd and completed the same and started the unit operating about 11 P.M. of the same date when they left the Plunkett home. On December 23rd, in the afternoon, Mr. M. E. Phillips, manager and engineer of the heating and air conditioning division of defendant's business, came to the Plunkett home, checked and approved the general installation of the unit and pronounced the unit to be working and operating satisfactorily. The unit continued to function thereafter until about ten o'clock of the night of December 24th, when the electrical current in the City of Shreveport was disrupted by rainy and freezing weather causing wires in the City to break under the accumulation of ice. The electricity servicing the Plunkett home was cut off and the house became very cold as the heat from the furnace was no longer conveyed into the lower part of the house by the electrically operated blower.

'The living quarters of the Plunkett home were on the lower floor. On the night of December 24th, practically the entire family was ill with 'flu'. Mrs. Plunkett had gotten up out of bed with her baby who was ill and gone into the kitchen where there was a gas range which she lighted for warmth. She says she sat in front of the range most of the night until about six o'clock in the morning of December 25th (Christmas), when she heard someone pounding on the front door and shouting. It was then discovered that the attic of the house was enveloped in flames and the Plunketts rushed from the building in night clothes and barefooted.

* * *

* * *

'The evidence discloses that this heating unit is a manufactured product, but comes disassembled or broken down. It is assembled or put together at the time and place of installation. The mechanical controls thereon are set at the same time and place. All these things, together with the new gas and electrical extensions, were done in this case by defendant's employees. * * *'

This brings us to a consideration of the issues in the case, the first of which is whether or not the fire started from the heating unit. Of course, appellees contend that it did. Defendant, in vigorously challenging that contention, insists that the heating unit was perfectly designed and carefully installed and regulated. And it suggests possible reasons for the commencement of the fire, such as rats playing with matches and also spontaneous combustion in the mass of clothes and other personal property stored in the attic.

In resolving this issue of fact in favor of appellees, the trial judge commented that, 'The evidence makes inescapable the conclusion that the fire started from the heating unit.' With this conclusion we cannot disagree; the record fully supports it. Among the first to reach the scene shortly after the fire's commencement were Captain Turner J. Mangham and his assistants of Station No. 7 of the Shreveport Fire Department. Captain Mangham testified:

'Q. Captain Mangham, will you relate to the Court just what you did when you arrived at their residence at 217 Boulevard in the City of Shreveport on that date?

'A. Yes, sir. We had a telephone alarm to 217 Boulevard, house on fire. We came on down Centenary Boulevard and the other company laid hose and my company made up. On arrival we saw the fire coming out of the eact end of the gable and the house was full of smoke, so we tried to make our entrance to get to the seat of the fire as quick as possible. We gained entrance through the front door and went to the little hallway, which is usually an easy place to get into the attic. You could tell most of the fire seemed to be coming from the attic. We made entrance with a two and a half inch line with a one and one-eighth inch nozzle through the opening for the attic ventilator fan; found most of the fire to our right, the north side of the house, most of the seat of the fire, around a heating unit installed in the attic. Closets below and under were also involved in fire. We put out the large portion of the fire, found escaping gas, ordered gas meter cut off, checked and put out the remaining fire, which was mostly around that section. I think that covers it very well.'

Further, he testified:

'Q. Was this one of the cases where there was any doubt in your mind as to what caused the fire?

'A. All indications pointing to the start of that fire settled my mind beyond a reasonable doubt that it started around that heating unit and was caused from that heating unit.

'Q. Did you find anything in any part of the building that indicated to your mind that the fire could have been caused by anything else other than the heating unit?

'A. No, sir, I did not.'

Accompanying Captain Mangham into the burning house were firemen C. A Freeman and Homer G. McDowell, both of whom were...