Slayton v. Wright

• Decision Date: 27 March 1969
• Citation: 76 Cal.Rptr. 494,271 Cal.App.2d 219
• Court: California Court of Appeals Court of Appeals
• Parties: Mamie J. SLAYTON et al., Plaintiffs and Respondents, v. Owen WRIGHT, Defendant and Appellant. Civ. 9031.

Page 494

76 Cal.Rptr. 494

271 Cal.App.2d 219

Mamie J. SLAYTON et al., Plaintiffs and Respondents, v. Owen WRIGHT, Defendant and Appellant.

Civ. 9031.

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

March 27, 1969.

Hearing Denied May 21, 1969.

[271 Cal.App.2d 223] Jacobs, Jacobs, Nelson & Witmer and M. Lyle Nelson, Santa Ana, for defendant and appellant.

[271 Cal.App.2d 224] Hurwitz & Hurwitz, Orange, for plaintiffs and respondents.

OPINION

KERRIGAN, Associate Justice.

On September 14, 1963, the plaintiff, Mamie J. Slayton, and two co-employees of LaVida Mineral Springs, Nina Lackey and Robert V. Pague, sustained severe personal injuries when a water heater exploded in the main building of the health resort. The three employees filed separate actions for damages and named the following persons and firms as defendants: Gaffers & Sattler, Inc., the manufacturer of the Mission Heater which exploded; Claude Williamson, the plumbing contractor who supplied and was responsible for the installation of the heater; appellant, Owen Wright, a plumber who was in Williamson's employ in December 1957, when the heater was ordered, and who performed the actual installation work; Carrier Corporation, the manufacturer of another water heating unit located in the basement of LaVida Mineral Springs, known in the trade as a Day & Night Heater; and Wright & Eckart, a partnership composed of the appellant Owen Wright and Richard Eckart, the firm which supplied and installed the Day & Night Heater in December 1960. However, Carrier Corporation was dismissed as a defendant before the commencement of trial.

Plaintiff's spouse, Norman Slayton, joined in her suit against the purported third party tortfeasors and claimed damages for loss of his wife's services.

LaVida's workmen's compensation carrier, Guarantee Insurance Co., sought reimbursement from the third parties for benefits paid the three employees. It filed complaints-in-intervention in the Lackey and Pague suits and a separate action for benefits paid to Mamie J. Slayton. The employees' actions were predicated on negligence and strict liability. The defendants raised the concurrent negligence of the employer LaVida as an affirmative defense in each of the four actions.

The employees' actions and Guarantee's separate subrogation suit were consolidated for jury trial. Special verdict forms were submitted to the jury for a specific finding as to whether the employer, LaVida, was negligent and whether such negligence was a proximate cause of the explosion. The jury found that LaVida was concurrently negligent, and that such negligence was a proximate cause of the injuries and damages sustained by the three employees.

The jury returned verdicts against the plumbing contractor Williamson and his former employee Wright in the following sums: Mamie J. Slayton--$250,000; Norman Slayton--$50,000; Nina Lackey--$100,000; and Robert V. Pague--$10,000. The jury found in favor of the defendants Gaffers & Sattler, Inc. with Wright and Eckart, a copartnership. In accordance with the findings contained in the special verdicts, Guarantee, LaVida's subrogee, took nothing.

Prior to rendition of the verdicts, counsel stipulated that all benefits paid by Guarantee to the time of trial could be deducted from the employees' verdicts. The following sums had been expended for compensation and medical costs: Mamie J. Slayton--$32,173.22; Nina Lackey--$22,677.65; and Robert V. Pague--$2,023.07. In the judgment on the verdicts, the court deducted the aforesaid sums from the awards in favor of the three employees. The net awards were: Mamie J. Slayton--$217,826.78; Nina Lackey--$77,322.35; and Robert V. Pague--$7,976.93. Subsequently, on motions for new trial filed by defendants Williamson and Wright, the court reduced the verdict in Norman Slayton's favor to $10,000.

This appeal from the judgment in favor of Mamie J. Slayton, Norman Slayton, Nina Lackey and Robert V. Pague is taken solely by Owen Wright. Williamson filed a notice of appeal but failed to perfect his appeal.

The water heating system located in the basement of the main building at LaVida Mineral Springs consisted of a 530-gallon storage tank with a Day & Night Heater at one end and a smaller Mission Heater at the other end. Two 1 1/2 inch galvanized pipelines connected each heater to the storage tank. The bottom pipelines were utilized for cold water running from the tank to the heaters, and the top pipelines were for hot water running back from the heaters to the tank. A gate valve was located on each pipeline between the tank and the heaters. Thus, each heater had two gate valves. When both valves were closed, the water in the heater became isolated or 'trapped.' Operation of the Mission Heater was controlled by a probe-type thermostat located in the storage tank, with two aluminum lines running from the thermostat to the bottom of the heater where the pilot control was located.

The water heating system was originally installed in 1927 when the buildings were constructed. The source of the water was an underground reservoir located about 1/4 mile from the resort. The temperature of mineral waters in the reservoir was approximately 112 degrees, and to maintain this temperature during use, and to allow for 'lost' heat in traveling the 1/4 mile line to the storage tank, the thermostats in the heating system were set at 140--160 degrees. After the water was heated, it was then piped to the resort's bath house and hotel rooms for use.

The Mission Heater was sold by Williamson to LaVida in December 1957. Williamson directed the appellant to install the unit. Neither the manufacturer nor supplier ever equipped the heater involved with a temperature pressure relief unit--a safety device which releases excessive steam when water becomes overheated and exceeds the boiling point of 212 degrees Farenheit. A thermostat in the storage tank controlled the burners in the Mission unit but the evidence reflects that a thermostat may 'strick' and not 'cut off' the burners at the setting point.

In 1958 Williamson sold his plumbing business to appellant and Richard Eckart, and the latter parties formed a partnership. In December 1960 LaVida purchased a Day & Night Heater from the partnership. Appellant installed this unit at the other end of the basement as a replacement for an old heater. No temperature pressure relief valve was placed on the new unit, although the new heater was equipped with two thermostats. In addition to installing the new heater, the 1 1/2 inch lines from the Day & Night Heater to the storage tank were replaced, and in removing the old lines, Wright observed that the insides were built up with mineral deposits to the extent that he could barely get one finger into the pipes. He called this to the resort manager's attention.

In April 1963, six months before the explosion, trouble developed in the Mission Heater. The burners would not go on. Wright's partner, Eckart, responded to a call from LaVida to repair the unit. The thermostat in the storage tank, which was connected with the Mission Heater and actuated the Mission's burners, was apparently defective. The storage tank thermostat was known as a Titan BT 40. Eckart attempted to order a new Titan Thermostat from the supplier. The supplier told Eckart he would have to see the old thermostat to fill the order. Eckart removed a Grayson Thermostat from an old domestic heater he had on hand and which he intended to scrap. He returned to LaVida, removed the Titan Termostat from the storage tank and installed the old Grayson Thermostat as a substitute. The probe of the Titan was approximately 8 inches; that on the old Grayson was only 4 inches. The Titan was sent to the supplier. Approximately two weeks before the explosion, the old Titan was returned to Eckart with the order unfilled. At the time of the explosion, the old Grayson Thermostat which controlled the Mission Heater's water temperature was still in the storage tank.

On the day of the explosion, the manager was on vacation and his father-in-law acted as his replacement during his absence. About 1 1/2 hours before the explosion, the acting manager was preparing to leave on a business trip to Bakersfield when he received a report of a leaky faucet in one of the tubs utilized by the guests. He visited the basement with the intention of turning off the water to the tub. He evidently first turned a valve located on one of the walls of the basement, but was informed by an employee upstairs that the faucet was still leaking. While his testimony was contradictory and conflicting, it appears that he closed one or both of the gate valves on the pipelines connecting the Mission Heater and the storage tank. Thereafter, he advised a young employee to tell the resort repairman that the valves should be fixed. He then left for Bakersfield. The youngster never saw the repairman before the blast.

The evidence is overwhelming that had the Mission Heater been equipped with a temperature pressure relief valve the explosion would not have occurred. Wright, himself, testified that before he installed the Mission Heater, he had been employed as a plumber in the Modesto area, and that it had been his practice to install such safety devices on both commercial and domestic water heaters. He further testified, when questioned on his failure to install such a temperature pressure device: 'If I had have done (sic) what I would want to do, what I think really should be done (sic), I would (have) put it on there.' Thermostatic control did not constitute an adequate safety measure because of the possibility of a malfunction.

There was further evidence that the explosion of the heater was at least partially caused by its becoming isolated from the storage tank. This condition occurred because the two gate valves on the 1 1/2-inch lines were closed. Thus, the conduct of LaVida's acting manager on the day of the explosion, in...