Ewing v. Balan

SHINN, P. J.

Action by a tenant against his landlords for property damage resulting from a fire caused by the explosion of a defective gas water heater supplied by defendants. Trial was to the court, which made findings and entered judgment in favor of plaintiff for $1,500 damages. Defendants appeal from the judgment and have noticed an appeal from the denial of their motion for new trial.

Plaintiff testified that he rented an unfurnished duplex apartment from defendants in February 1956 on a month to month tenancy. Defendants had previously installed a gas water heater which was located inside a closet in the kitchen. Plaintiff paid the gas bill. On May 20th, he observed that the heater was out of order; the fire had gone out and gas was leaking. After turning off the gas at the main valve, he waited a few minutes, then turned on the gas and lighted

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the fire with a match. Plaintiff then telephoned Mrs. Balan and asked her to send someone to look at the heater. She told him that she would discuss the matter with him when she came over to collect the rent. When Mrs. Balan came to the house a few days later, plaintiff asked her to have the heater fixed and she said that she would tell her husband about it. On June 7th, the heater was again out of order. Plaintiff turned off the gas, waited, turned on the gas and relighted the fire as he had done on the previous occasion. He then contacted Mrs. Balan by telephone and asked her if she had talked to Mr. Balan about repairing it. Mrs. Balan told him that her husband was going to have the heater fixed. Belying upon his conversations with Mrs. Balan, plaintiff did not call the gas company. Early the following morning, the heater exploded, causing a fire that spread through the kitchen and living room and destroyed or damaged most of plaintiff’s furniture and other belongings.

In her testimony, Mrs. Balan denied having had any conversations with plaintiff about repairing the heater.

The court found: Defendants reserved to themselves the control of, and undertook to care for and maintain all portions of the demised premises. Plaintiff notified defendants of the defective heater prior to June 8th and requested them to repair it. The fire occurring on that date was caused by the negligence of defendants in failing to use reasonable care to keep the premises in a safe condition, in creating a dangerous condition on the premises, and in failing to repair or replace the heater although they knew it was defective and had ample opportunity to remedy the condition. The court found to be untrue the allegations of the answer that plaintiff was also negligent and that the demised premises were under his exclusive dominion and control.