Theurer v. Condon

• Decision Date: 12 August 1949
• Docket Number: 30582.
• Citation: 34 Wn.2d 448,209 P.2d 311
• Parties: THEURER et al. v. CONDON et ux.
• Court: Washington Supreme Court

209 P.2d 311

34 Wn.2d 448

THEURER et al. v. CONDON et ux.

No. 30582.

Supreme Court of Washington

August 12, 1949

Department 1

Action by Carl Theurer and another against R. B. Condon and wife sole traders doing business as Benjamin Franklin Electric Company and as Good Housekeeping Shop, to recover for damage to apartment house by reason of fire allegedly resulting from negligent installation of oil burning appliances. Upon the death of named plaintiff, Katherine W. Theurer, individually and as executrix of the estate of Carl Theurer, deceased, was substituted as a party plaintiff. Judgment for plaintiffs and defendants appeal.

Judgment affirmed.

Where defendants' negligence in so installing oil burner and tank in buyer's apartment that in filling tank container would have to be held over stove was proximate cause of fire contributory negligence of tenant's agents in permitting oil to drip on heated stove while filling tank did not bar recovery by owner of apartment house for damage thereto since tenant was not owner's agent.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Reischling & Laurie, Seattle, for appellants.

Patterson & Patterson and Frederick C. Peterson, Seattle, for respondents.

BEALS Justice.

This action was instituted by Carl Theurer and Ella C. Theurer, as plaintiffs, against R. B. Condon and Jane Doe Condon, sole traders doing business as Benjamin Franklin Electric Company and Good Housekeeping Shop. In their complaint, plaintiffs asked for judgment against defendant is the sum of $737.83, on account of damages to an appartment house owned by plaintiffs, the damages having been occasioned by a fire which, plaintiffs alleged, was proximately the result of defendants' negligence in installing an oil supply tank and oil burning device in a range in one of the apartments located in the building.

By an amended complaint, filed November 26, 1947, it was alleged that, after the institution of the action, the plaintiff Carl Theurer had died, leaving a last will and testament; that the appointment of plaintiff Katherine W. Theurer as executrix thereof had been confirmed by the court, and that she was the acting and qualified executrix of the estate of Carl Theurer, deceased.

By the amended complaint, Katherine W. Theurer, as executrix of the estate of Carl Theurer, deceased, was substituted in place of Mr. Theurer as party plaintiff, and the action continued, damages being demanded as set forth in the original complaint.

By their answer, defendants denied all negligence on their part and pleaded affirmatively several defenses, namely, (1) that, if plaintiffs suffered any damages, as alleged in the complaint, such damages were the result of the negligence of plaintiffs or their tenants; (2) that, if the installation of the oil supply tank and other appliances by defendants had been negligently accomplished, such negligence, if any, occurred not later than early in the year 1938, and that, as plaintiffs alleged that they had suffered damages as the result of a fire which occurred during November, 1944, there was no causal connection between the installation of the appliances by defendants and the fire, the latter having occurred at such a long period of time after the installation; (3) that any hazard which existed because of the operation of the oil burner, and so forth, was assumed by plaintiffs or their tenants, the appliances having been used for more than seven years after the installation thereof; and (4) that the installation of the appliances was ordered by Mrs. E. S. Johnson (known at the date of filing the answer as Daisy B. Leavens), who occupied an apartment in the building owned by plaintiffs, for the purpose of converting the cooking range therein into an oil burner; that defendants installed the applicances ordered, complying with the fire ordinances and other regulations of the city of Seattle, and that, if any fire occurred, as alleged in the complaint, such fire was occasioned by the negligence of Daisy B. Leavens or other persons operating the oil burner. Defendants also pleaded affirmatively the statute of limitations.

By their reply, plaintiffs denied the affirmative allegations contained in defendants' answer.

The action was tried to the court, sitting without a jury, and resulted in the entry of findings of fact and conclusions of law in favor of the plaintiffs, followed by a judgment in favor of the plaintiffs and against the defendants for $737.83, together with costs, from which judgment defendants have appealed.

Appellants assign error upon the denial by the trial court of their motion for nonsuit, made at the close of respondents' case; upon the denial of their motion for dismissal of the action, made at the close of the evidence; and upon the entry of judgment in favor of respondents. Appellants do not assign error upon any finding of fact made by the trial court, and we, therefore, consider the findings as established facts in the case. Brydges v. Millionair Club, Inc., 15 Wash.2d 714, 132 P.2d 188.

The statement of facts discloses very little dispute in the evidence.

During the year 1937, the Theurers were the owners of a small apartment house located at 1608 Twelfth avenue in Seattle, and were represented by a local agent. In May, 1937, Mrs. Johnson, through the agent, leased an apartment on the second floor. Many repairs were required, and it was agreed that the lessee would place the apartment in reasonably good condition for a credit of three months' rent. The tenant installed her own coal cooking range in the apartment and, in December, 1937, desiring that the coal range be converted into an oil burner, Mrs. Johnson (whom we hereafter refer to as Mrs. Leavens) purchased from appellants an appropriate appliance, which appellants installed. It appears that the oil for the burner was contained in a tank, with a capacity of a little less than six gallons, which was attached to the wall at the back of the range, the distance between the back of the stove and the front of the tank being approximately three inches. The fifty-gallon storage tank for the oil was about fifteen feet distant from the outside of the building. The tenant received typewritten instructions concerning the use of the stove, one provision thereof reading as follows: 'Never allow oil to run into burner when burner is hot, or light a hot burner.'

The tenant used the stove as an oil burner, without incident, until November 6, 1944. On that day, the tenant and Mr. Leavens, her then husband, were at home ill. Mrs. Leavens had just finished cooking their lunch on the range, which was still hot, when two friends, who had agreed to bring oil to the apartment from the storage tank and fill the reservoir at the back of the range, called at the apartment. These friends commenced to fill the reservoir attached to the stove, pouring oil therein from a one-gallon can. Apparently, some oil dropped from the can to the top of the hot stove, causing a flash fire which resulted in substantial damage to the building.

This action was instituted July 17, 1945, by the respondents for the recovery of damages from appellants on account of injuries to the building. By their amended complaint, supplemented by a bill of particulars, respondents alleged their ownership of the apartment house, the damage thereto by fire in the sum of $737.83; that the proximate cause of the damage was the negligence of the appellants in installing the oil supply tank and the oil-burning device in the range in such close proximity one to the other and in such a position that it was necessary to reach over the oil burner to replenish the fuel in the oil tank, and that the installation was so made in violation of ordinances of the city of Seattle, which were pleaded in the amended complaint.

By the bill of particulars filed by respondents (which was later made a part of the amended complaint by reference thereto), ordinance No. 59867 of the city of Seattle, effective August 22, 1916, with amendments to January 1, 1938, was pleaded, it being stated that the installation by appellants of the oil burner was made in violation of the terms of that ordinance. It was also stated in the bill of particulars that, by § 218 of the ordinance, it was required that a written permit from the chief of the fire department be procured Before installing any oil-burning equipment, where the estimated cost of installation exceeded ten dollars, and that no such permit was procured in connection with the installation above referred to, which cost in excess of ten dollars.

The trial court found that the fire was occasioned by the spilling of some oil upon the surface of the heated stove while the oil tank was being refilled, as above set forth. Finding No. 5 reads as follows: 'That plaintiffs and their agent, Henry Broderick, Inc., had no knowledge of the installation of said oil burning range nor were they consulted by the tenant, R.I. Leavens, in the installation of said range.'

The trial court expressed the view that the installation of the oil tank by appellants was defective and was negligently and wrongfully accomplished, and that this defective installation was the proximate cause of the damages suffered by respondents; that there was no contributory negligence or assumption of risk of fire on the part of respondents; that no duty rested upon respondents to inspect the property rented under conditions such as appeared from the evidence, and that the action was not barred by the statute of limitations, having been commenced within two years from the date the damage occurred.

In their brief, appellant present their arguments under two headings, first, that it should be held that respondents' action was not commenced within...