Sheary v. Hallock's of Middletown, Inc.

• Decision Date: 23 January 1962
• Citation: Sheary v. Hallock's of Middletown, Inc., 177 A.2d 680, 149 Conn. 188 (Conn. 1962)
• Court: Connecticut Supreme Court
• Parties: Albert E. SHEARY, Administrator (ESTATES of Brian DAVIS et al.), et al. v. HALLOCK'S OF MIDDLETOWN, INC., et al. Supreme Court of Errors of Connecticut

Page 680

177 A.2d 680

149 Conn. 188

Albert E. SHEARY, Administrator (ESTATES of Brian DAVIS et al.), et al. v.HALLOCK'S OF MIDDLETOWN, INC., et al.

Supreme Court of Errors of Connecticut.

Jan. 23, 1962.

P. Corbin Kohn, Hartford, and Andrew J. O'Keefe, Hartford, for appellant(named defendant).

Joseph P. Kenny, Hartford, with whom was Leslie R. Brimmer, Hartford, for appellees(plaintiffs).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

SHEA, Justice.

The plaintiff administrator brought this action to recover damages for the deaths of four minor children, alleged to have been caused by the negligence of the defendants and by the breach of an implied warranty in the sale of a stove by the named defendant, hereinafter called the defendant.The plaintiffMargaret Davis, the mother of the children, sought damages for personal injuries sustained by her.The jury returned verdicts for the plaintiffs, and the defendant has appealed from the judgment rendered thereon.The defendant claims that the trial court erred in denying its motion to set aside the verdicts, in refusing to render judgment notwithstanding the verdicts, in charging the jury and in certain rulings on evidence.

The jury could reasonably have found the following facts: In October, 1957, the plaintiffMargaret Davis and her husband purchased from the defendant a combination oil and gas stove which was installed by the defendant's employees in the Davis apartment at the rear of the third floor of a house in Middletown.The gas burners on the stove were not connected.On this type of stove, there are two oil burners which are supplied with oil from a tank in back of the stove.Oil is drawn from this tank under the principle of barometric pressure.The flow of oil to each burner is controlled by a separate valve containing numbers from one to ten.There is no connection between the two burners, and oil cannot flow from one burner to the other.When the stove is installed, it should be level.The burners should be placed in a position on the same level as a sump into which oil drops from the supply tank, so that when the supply valves are wide open, the oil will rise in the base of the burner to, but never above, the level of the oil in the sump.The plaintiff Margaret did not have any difficulty in operating the stove from the time of its installation in October, 1957, until April 18, 1958, when a fire occurred.On that day at about 5 p. m., she lit the front burner and set the valve, according to her usual practice, at position No. 3.About 9 p. m., she went out of the house to do an errand.She left the eldest child Janet, then three years and nine months old, in charge of the other children--Brian, age two years and eight months; Sally, one year and seven months; and Wendy, one month.

When Margaret left the house, the rear burner on the stove was not in operation.She was gone between five and ten minutes.During her absence, a flash fire occurred in the apartment.Subsequently, the lifeless bodies of the four children were found in a bedroom adjoining the kitchen.Margaret sustained injuries when she attempted to enter the apartment while the fire was in progress.After the fire was put out by the fire department, there was evidence of extensive burning throughout the whole kitchen.The valve to the front burner of the stove was found to be open about one-quarter of the way, and the valve to the rear burner was turned on to the full position at No. 10.The oil tank was empty but intact.The lid over the rear burner of the stove was tilted, and a heavy aluminum pot on that lid was partially melted.The rear panel of the stove directly over the rear burner, the aluminum trim and some of the glass trim had also melted.Since the melting point of aluminum is about 1200 degrees Fahrenheit, there would have had to be a concentrated and intense fire outside the stove near the rear burner.The door and window in the rear of the kitchen were completely burned out.The flue pipe which led to the chimney was found in back of the stove in the corner.

The crucial question before the jury was what caused the fire.Originally, the plaintiffs brought this action in three counts.The first count, in which the plaintiffs sought recovery from the landlord for negligence, was withdrawn during the trial.In the second count, the plaintiffs sought recovery from the defendant under an implied warranty of merchantability.In the third count, they sought recovery from the defendant for negligence.The gist of the third count is that the defendant failed to make a reasonable and adequate inspection of the stove, that the stove was negligently constructed and inadequate and unsafe for use, that it did not have a safety device to shut off the flow of oil in the event of a flameout, that the defendant failed to provide safety devices or to take other precautions before permitting the stove to be put to use, that the stove was defective and inherently dangerous for use, and that the defendant failed to warn the plaintiff Margaret of the danger in using the stove when necessary safety controls had not been provided.The second and third counts of the complaint were made more specific by alleging, inter alia, that the defendant had installed the stove 'in violation and breach of Sections 29-59and29-60 of the 1958 Revision of the General Statutes, and further Article 8 of the Regulations for the Installation of Oil Burning Equipment, effective October 9, 1956, and promulgated under said statutes by the Commissioner of State Police.'

In the course of the trial, the plaintiffs offered in evidence a pamphlet comprising regulations for the installation of oil burning equipment issued by the commissioner of state police pursuant to General Statutes, § 29-60.The defendant objected on the ground that there was no foundation for the introduction of the regulations, that the regulations were matters of law which should be covered by the judge's charge, and that they should not be submitted to the jury as an exhibit.The objection was overruled, and the defendant excepted to the court's ruling.The pamphlet consists of over forty pages and includes eight different articles of regulations, with many sections and subsections.The regulations cover a broad field and, as stated therein, 'are intended to provide for the prevention of injury to life and damage to property, and protection from hazards incident to the installation and operation of oil burners and equipment including tanks, piping, pump control devices and accessories [with certain exceptions, including internal combustion engines, oil lamps, etc.].'Conn.Dept.Regs. § 172-6-1(a).The court erred in permitting the pamphlet to be marked as an exhibit in evidence and in allowing it, in its entirety, to go to the jury for their examination.In the first place, the allegations of the complaint refer only to violations of article 8 of these regulations....