Redman v. Community Hotel Corp.

• Decision Date: 21 July 1953
• Docket Number: Nos. 10521 and 10522,s. 10521 and 10522
• Citation: 76 S.E.2d 759,138 W.Va. 456
• Court: West Virginia Supreme Court
• Parties: REDMAN, v. COMMUNITY HOTEL CORP., etc., et al. REDMAN v. STANDARD ENGINEERING CO., etc., et al.

Page 759

76 S.E.2d 759

138 W.Va. 456

REDMAN, v. COMMUNITY HOTEL CORP., etc., et al.

REDMAN v. STANDARD ENGINEERING CO., etc., et al.

Nos. 10521 and 10522.

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1953.

Decided June 16, 1953.

Dissenting Opinion July 21, 1953.

Syllabus by the Court.

1. Upon writ of error in a civil action, this Court wil not consider an assignment of error relating to the giving or refusing of an instruction, where the ground of the assignment of error is not based on a specific objection.

2. 'Where one places a steam boiler upon his premises and operates the same in lawful business with care and skill, so that it is no nuisance, in the absence of proof of fault or negligence in him, he is not liable for damages to his neighbor occasioned by the explosion of the boiler.' Point 1, Syllabus, Veith v. [Hope] Salt [& Coal] Co., 51 W.Va. 96 [41 S.E. 187, 57 L.R.A. 410].

3. An inference of negligence which may arise upon the application of the res ipsa loquitur doctrine may be rebutted.

4. Where an inference of negligence arising from the application of the res ipsa loquitur doctrine is conclusively, or by a clear preponderance of the evidence, rebutted, the question of negligence becomes one of law for the court.

5. 'The object of all questions to experts should be to obtain their opinion as to matters of skill or science which are in controversy, and at the same time to exclude their opinions as to the effect of the evidence in establishing controverted facts.' Point 5, Syllabus, State v. Musgrave, 43 W.Va. 672 .

6. Where in the trial of an action based on negligence in the operation of a steam boiler, resulting in injury from escaping steam from a pipe broken by the tilting of a boiler, after an explosion, it appears from a view by the jury that steel supports were attached to the boiler, and that the tilting of the boiler probably could not have occurred with the supports attached thereto, it is not prejudicial error to admit evidence to the effect that such supports were attached subsequent to the explosion.

Jackson, Kelly, Morrison & Moxley, Charleston, W. T. O'Farrell, Charleston, for plaintiff in error, Community Hotel Corp.

J. Campbell Palmer, III, Charleston, for plaintiff in error, Standard Engineering Co.

Samuel D. Lopinsky and Jackson D. Altizer, Charleston, for defendant in error.

GIVEN, Judge.

Defendants, Community Hotel Corporation and Standard Engineering Company, referred to in this opinion as Community and Standard, respectively, were proceeded against in the Court of Common Pleas of Kanawha County by Nellie Redman, administratrix of the estate of Clyde Redman deceased. The action was for recovery of damages for wrongful death resulting from an explosion. Community demurred to the evidence of plaintiff. The trial court overruled the demurrer and, after the jury had returned a conditional verdict in the amount of ten thousand dollars, in a manner agreed upon by counsel, entered judgment against Community in that amount. Standard offered evidence in defense. After considering all the evidence, the jury returned a verdict against Standard in the amount of ten thousand dollars. The trial court set aside the verdict as to Standard and granted it a new trial. Writs of error were granted Community and the plaintiff by the Circuit Court of Kanawha County. That court reversed the judgment of the Court of Common Pleas as it related to Standard, affirmed the judgment as it related to Community, and entered a joint judgment against Community and Standard in the amount of ten thousand dollars. This Court granted separate writs of error to Community and Standard.

The injury which caused the death of plaintiff's decedent resulted from an explosion in the operation of a steam boiler, fired by natural gas, then being operated in a new addition to the Daniel Boone Hotel, owned and operated by Community. The addition was not completed at the time of the explosion. Standard was under written contract with Community to do the plumbing, which included the installation of the boiler and the burner hereinafter described. The boiler and the burner were, however, purchased by Community and were delivered to Standard completely finished and ready for installation. A dispute exists between Community and Standard as to which was actually operating the boiler at the time of the explosion. The boiler had not been accepted by Community from Standard under the contract and Standard had not been paid for its installation. Standard contends, however, that Community had taken charge of the boiler and was operating it at the time of the explosion, and had operated it for approximately two months prior thereto, under a provision of the contract which reads: 'The Owners shall have the right to take possession of or use any completed or partially completed part of the work.' Plaintiff contends that Community was operating the boiler with the consent, under the direction, and with the help and advice of Standard, and that therefore Community and Standard were jointly operating the boiler and had joint control thereof at the time of the explosion.

As before noted, the boiler was delivered to Standard as a complete integral unit, ready for installation. To install the boiler, a very large one, it was necessary to construct what is usually referred to in the evidence as a fire box. The plans and specifications of the architect employed by and responsible to Community, relating to the fire box, were very minute in detail. Standard employed G. W. Higginbotham Company, a partnership, to construct the fire box. Higginbotham Company was the contractor which constructed the addition to the hotel, other than the part thereof being done by Standard, and was originally a defendant in the action, along with Community and Standard, but, on motion of plaintiff, was dismissed prior to the taking of any evidence. The fire box was of masonry construction. It was of rectangular shape, '36 inches high from the boiler room floor to the boiler water leg.' The walls were 26 inches thick, 12 inches of 'load-bearing' brick, 5 inches of insulation and 9 inches of fire brick. Over top of the masonry was placed a one half inch thick 'steel bearing plate to distribute the weight of the boiler.' Leading from the rear of the fire box to the 'stack', or chimney, was the metal breeching. The breeching of two boilers supplying steam for the older part of the hotel was connected to the same stack by separate breeching. In front of the fire box was a one half inch thick steel plate, provided with proper openings, for the gas burner. The fire box served a dual purpose. It supported the weight of the boiler and afforded a complete combustion chamber.

The burner was purchased by Standard, but Community designated and required the purchase of the particular type and make of burner, a 'Fan Air burner as manufactured by the Mettler Company of Los Angeles.' It was delivered to Standard as a complete integral unit ready for installation in the fire box. It was 'an automatic gas burner consisting of multiple gas jets firing in a horizontal position and equipped with an integral blower to provide the air combustion.' The burner was also provided with a pilot light fixture, to which was connected, by a quartz tube, a photo-electric tube. The photo-electric tube or cell is sensitive to a very small portion of the available light spectrum. There exists in the evidence a sharp conflict whether the photo-electric cell is sensitive to red rays, such as emanate from very hot brick. A representative of the manufacturer of the burner testified that it was sensitive only 'to the white light or the bluish-white light which is relative to the ultraviolet end of the visible spectrum.' The purpose of this assembly, often referred to as an 'electric eye', is to control the intake of gas into the combustion chamber. With the pilot light not burning, the photo-electric cell is supposed to no longer generate 'a current and this relay in this housing here falls out killing the electric circuit to this diaphragm valve and the valve closes and the burner goes off.' In other words, when the pilot light goes out, the burner automatically shuts off the entire gas supply, except that which passes to the pilot light fixture.

The explosion occurred in December, 1949, about 11:45 a. m. It seems not to be disputed that the explosion actually occurred in the breaching near the rear of the burner installed by Standard. Part of one wall supporting the boiler was blown down, permitting the boiler to tilt, breaking a large steam pipe. Plaintiff's decedent was severely burned, by escaping steam from the broken pipe, from which burns he died a few days later. Part of the work to be performed by Standard, under its contract with Community, was the insulation of all steam pipes installed by it. This work had been subcontracted by Standard to Asbestos Service Company. Plaintiff's decedent was an employee of the subcontractor, and was engaged in that work, at the time of the explosion, about fifteen feet distant from the boiler under which the explosion took place.

A view of the premises was had by the jury. The jury was permitted to view and examine the boiler, burner and fire box. At the view, it was pointed out to the jury, and later shown by the testimony of Griffis, an employee of Community and a witness for plaintiff, that steel supports were affixed to the boiler subsequent to the time of the explosion, but before the repairing of the fire box walls. No objection was made to the pointing out of such facts at the view, or to Griffis' testimony to that effect while at the view, but each defendant duly objected to that part of the testimony of Griffis when given in the court room, after the view.

Plaintiff's Instruction No. 1, given to the jury, is in the following language: 'The Court instructs the jury that if you believe from a preponderance of...