Opinion
No. 34728.
December 8, 1941.
1. GAS.
One who for a valuable consideration installs a "dangerous instrumentality," such as a gas heater, is in such installation charged by law with knowledge of particular dangers characteristic of instrumentality and of manner and means by which the dangers are likely to eventuate into actual harm, and with the duty to use that degree of care which is commensurate with the danger to guard or insulate against it.
2. GAS.
When the installation, for a valuable consideration, of a gas heater is in a structure which is being erected by another contractor, and the work done or being done by that contractor near the heater is such as to make the situation appear dangerous, the installer must inform owner that work as done or being done by contractor will cause heater to become dangerous, and, if installer fails to so forewarn, he will be liable for consequent damage to same extent as if he had done the work which brought about dangerous situation.
3. GAS.
A contractor which installed a gas heater in school district's auditorium building was liable for damages caused by fire resulting from failure to properly insulate heater when it was installed in wall, notwithstanding that combustible wooden studs in wall were placed near heater by general contractor who constructed building.
APPEAL from the chancery court of Stone county, HON. D.M. RUSSELL, Chancellor.
Hugh F. Causey, of Cleveland, for appellant.
Appellant contends that it was not negligence to install the heater within the wall, because the original plans and specifications designated the heater to be placed within the wall, and such was the interpretation placed on the plans and specifications by the school trustees acting by their architects, the general contractor, M.T. Reed Construction Company, and all of the supervisors and inspectors, as well as appellant. The appellant cannot be held responsible for faulty structional requirements contained in the plans and specifications.
Appellant contends that the appellant was not negligent in that it did not encase the heater too near to wood or other combustible materials. All woodwork and other combustible materials were placed in the building and near the heater by M.T. Reed Construction Company. It was the duty of the school trustees acting by their representatives, the architects, to order the combustible materials removed to a safe distance from the heater, the proof showing conclusively that Mr. Norwood, one of the architects who was in actual charge of the construction of the building, knew that wood blocks and other combustible materials were in close proximity to the heater at least three weeks before the fire, and did nothing to remedy the situation before the fire, but after the fire on the advice of the architects the school trustees did remedy the situation by adopting new plans and specifications requiring the heater to be installed out of the wall, a safe distance from combustible materials.
Where an owner has knowledge that defective materials or workmanship has been put into his building, he cannot say that he has been deceived or damaged.
Collins v. Money, 4 How. (Miss.) 11.
In Bulman Furniture Co. v. Schmuck, 175 Ark. 442, 299 S.W. 765, it appears that plaintiffs purchased a gas stove which was installed by the seller of the stove too near to combustible materials, and was used by plaintiffs, knowing that the stove would likely cause a fire. It was held in that case that: "If the plaintiffs knew, or by the exercise of care should have known and appreciated the danger, then they could not recover."
It was held by the Supreme Court of Oklahoma in Holmbole v. Neal, 171 P. 334, 335, that if the injury complained of is the result of a negligent act of another party, and if the doctrine of respondeat superior does not apply, then the contractor is not liable.
A builder who undertakes work independently of other contractors and who has not general direction of the work is not liable for defects caused by them.
9 C.J. 755, paragraph 92.
A contractor is not liable in damages on account of faulty constructural requirements contained in the plans and specifications, nor is he liable where he performs his work under the direction of the owner or his representative.
Louisiana Shipbuilding Co. v. Burg, etc., 158 La. 548, 104 So. 364-365; McKnight v. Mayor of New York, 54 N.E. 661, 663; State v. Commercial Casualty Co., 248 N.W. 807, 810, 811; Penn Bridge Co. v. City of New Orleans, 222 Fed. 738; Southgate v. Sanford, 137 S.E. 485; Oklahoma City v. Derr, 235 P. 218.
Even a general guaranty of good condition during a period subsequent to completion has been construed not to include liability for mistake or miscalculation in an architect's plans. It is not an intention that would be erected or be reasonably inferred from a general guaranty of work to be done.
State v. Commercial Casualty Co., supra.
Appellant did not encase combustible materials near this heater; that was done by the M.T. Reed Construction Company. Appellant cannot be held liable on account of the faulty plans, or specifications, or structural requirements, or acts or omissions, of the school trustees, or any of its representatives, or of the other contractors.
Under appellant's contract it could not cut or remove the stud or any other part of the building erected by, or essential to, the work of any other contractor. Under the contract, as we have shown, that could only be done by the other contractor or by order of the architect, which order was not given until after the fire, although both the architect and Mr. Bufkin knew three weeks before the fire that combustible materials had been constructed near the heater.
Watkins Eager, of Jackson, and U.B. Parker, of Wiggins, for appellees.
Liability in this case is based not only upon provisions of the contract between appellant and the trustees as to the fitness and propriety of their installation and their warranty of the same, but also upon the implied warranty or agreement that the installation would be proper and the heaters left in working condition, properly insulated, if insulation was necessary.
A person selling an article or substance and installing it or an instrumentality for using it is liable for any damages sustained by the purchaser from negligence in the installation.
45 C.J. 894.
The vendor and installer of the heaters here involved is liable for damages sustained by the trustees from negligence in said installation.
See Barabe v. Duhrkop Oven Company (Mass.), 121 N.E. 415; Columbus, etc., Railroad Co. v. Coleman, 172 Miss. 511, 160 So. 277; Farmers Gin Co., Inc., v. Leach, 118 Miss. 784, 174 So. 566; Hemingway v. I.C.R.R. Co. (C.C.A. 5) (Miss.), 114 Fed. 843; Jaeger v. Elizabethtown Consolidated Gas Co., 11 Atl. Rep. 2d 746; Kumberger v. Congress Spring Co. (N.Y.), 53 N.E. 3; Louisiana Oil Corp. v. Davis, 172 Miss. 126, 158 So. 792; Mississippi Power Light Company v. Sumner Gin Company, 156 Miss. 830, 127 So. 284; Ness Creameries v. Barthes et al., 170 Miss. 865, 155 So. 222; S.H. Kress Co. v. Markline, 117 Miss. 37, 77 So. 858; Wright v. Holland Furnace Company, 186 Minn. 265, 243 N.W. 387.
Argued orally by Hugh F. Causey, for appellant, and by Elizabeth Hulen, for appellee.
Appellant was the contractor for the installation of the equipment constituting the gas heating system in a new auditorium building for the Leland Consolidated School District. Among the units installed was a large Pittsburg heater located within the curtain wall on the side of the stage. This heater was a heavy cast-iron instrumentality finished with aluminum bronze, and its dimensions were approximately 3 1/3 feet high, 28 inches wide and 31 inches deep. The proof is to the effect that in installing such a heater within a wall the heater must be insulated from the wall by noncombustible material between the heater and any combustible material in the wall or else there shall be no combustible material in the wall nearer the heater than say six inches at least, and if one or the other of these precautions is not taken fire will probably be communicated from the heater to the wall.
The contract for the construction of the building was held by another concern which we will call the construction company. When the construction company had proceeded with its work to the extent that the outside walls had been erected, the roof put on, the first or rough flooring laid, and the studding had been placed in the curtain walls, appellant sent its foreman to install the gas pipes and also the heaters in the curtain walls. Appellant's employee found that the upright studs in the curtain walls then fastened in place were of pine wood each 2 x 6 and were 16 inches apart. In the wall where the heater was placed which caused the fire for which this suit was brought, appellant's employee removed one of the studs, leaving thereby at that point a space between the studs of approximately 32 inches; and in this space appellant swung the heater, suspending it by pipes or rods fastened from above, with the result that the sides of the heater were each within about 2 inches of the wooden studs.
When this had been done, the construction company proceeded to the completion of the curtain walls which was done by plaster laid on wooden laths. In this process the wooden laths were brought even nearer to the heater than the two inches last above mentioned. No noncombustible insulation between the heater and the combustible material in the wall was installed either by appellant or any other person. The result, as should have been well known and anticipated by appellant, was that when the heaters were put into operation and on the first occasion when they had operated for any considerable period of time, fire from the particular heater mentioned was communicated to the combustible material in the curtain wall, causing the damage for which appellees recovered in the trial court.
Appellant has interposed several defenses, first among which is the contention that it did not place the studs or the wooden laths in the close and dangerous proximity to the heater as has been above stated but that this was done by the construction company for which that company alone should be liable; and appellant says in effect that although it left the heater swung in the wall within about 2 inches of the wooden studs on each side of the heater, it was the duty of the construction company to remove these studs and to replace them at a safe distance from the heater, and that in the plastering the construction company should have used metal laths, not the wooden laths which were actually used.
The construction company is not a party to the suit and we have no occasion to express any opinion whether it had any liability in the premises. But the further facts are that after the wall had been completed by the construction company and when appellant's foreman was in the building doing some further work in the performance of its contract the attention of appellant was called to the fact that the curtain wall at and around the heater had been completed by the construction company in the manner aforementioned and appellant's foreman was asked the direct question by the superintendent in charge for the trustees of the school whether the stated proximity to the heater of the uninsulated combustible materials did not make it dangerous and appellant's foreman then and there assured the superintendent that the installation as it then existed was entirely safe, that the fan which was a part of the heater would keep the sides of the heater cool to such an extent that there would be no danger.
One who for a valuable consideration installs a dangerous instrumentality, of which a gas heater is an example, is in such installation charged by law (1) with knowledge of the particular dangers characteristic of the instrumentality and of the manner and means by which the danger or dangers are likely to eventuate into actual harm, and (2) with the duty to use that degree of care which is commensurate with the danger, to guard or insulate against it. Such a rule has its roots in an impelling necessity in the promotion of the safety and security of life and property — it has its foundation in the essence of the social compact.
And as a corollary of what has just been said, when the installation is in a structure which, in the main, is being erected by another contractor, and the work done or being done by the other contractor about or near the heater is such as to make the situation of the heater dangerous, the party who has the contract for the installation of the heater must inform the owner that the work as done or being done by the other contractor will cause the heater to become dangerous and likely to set fire to the structure, thereby forewarning the owner so that he may have the dangers created by the other contractor removed or remedied; and in the event the installer of the heater fails so to forewarn he will be liable for the consequent damage to the same extent as if he had himself done the work which brought about the dangerous situation. A fortiori, the installer of such an instrumentality is subject to liability if by word or deed he leads those who are to use the instrumentality to believe it to be of a character, or in a condition or situation safer than he knows it to be. A.L.I. Rest. Torts, Sec. 388, Comment b, p. 1040. Among the several cases on this point is Jaeger v. Elizabethtown Consol. Gas. Co., 124 N.J.L. 420, 11 A.2d 746.
It may be that an exception is to be made in what is said in the next foregoing paragraph, namely, that if the danger created by the other contractor is known to the owner and is well understood by him as one obviously likely to produce harm and so much so that a warning to him would have been but an idle ceremony and of no service to the owner, then the failure to warn may be excluded as a proximate or contributing cause; but there is no such case here, and we have therefore no occasion to pronounce upon the suggested exception.
The record in this case embraces six volumes, the briefs more than 300 printed pages. Numerous points, offensive and defensive, have been made and argued. To follow out each of these or even the most of them would require an opinion of an excessive length. We have stated the leading facts and the more important of the principles particularly applicable thereto, and we shall not pursue the discussion further than to add that every contention has been carefully examined and we find no reversible error.
Affirmed.