Blume v. Weaver

412 S.W.2d 760, 1967 Tex. App. LEXIS 2315
CourtCourt of Appeals of Texas
DecidedJanuary 20, 1967
Docket4084
StatusPublished
Cited by8 cases

This text of 412 S.W.2d 760 (Blume v. Weaver) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blume v. Weaver, 412 S.W.2d 760, 1967 Tex. App. LEXIS 2315 (Tex. Ct. App. 1967).

Opinion

COLLINGS, Justice.

James C. Weaver, individually and as next friend for Michael Weaver, a minor, and his wife Lorraine W. Weaver, brought suit against Lloyd R. Blume, Lowell R. Blume and Linton Building Company, Inc. Plaintiffs alleged that defendants had contracted to construct a dwelling in a good and workmanlike manner and in accordance with an agreed plan, including provisions for central heating and air conditioning; that there was an improper construction of the house and of the central heating unit by the defendants or their subcontractors, wherefore, plaintiffs sought damages for an alleged breach of contract to correct such defects. Plaintiffs also sought damages for alleged physical pain and mental suffering by reason of carbon monoxide poisoning or intoxication sustained by plaintiffs because of the improper construction of the central heating system. The case was tried before a jury and based upon its findings, judgment was rendered against the defendants Lloyd R. Blume and Lowell R. Blume for damages on both counts. All relief sought against Linton Building Company, Inc., was denied. Lloyd R. Blume and Lowell R. Blume have appealed.

The record shows that appellants entered into a written contract with Mr. and Mrs. Weaver to sell them a certain tract of land and to construct thereon a dwelling in accordance with an agreed plan. The evidence further shows that the Weavers fully complied with their obligations under the contract by certain payments of money, the execution of a vendor’s lien note in the sum of $13,100.00 and a deed of trust on the property. Appellants acted as general contractors on the construction job and some of the work was let by them to subcontractors. In connection with appellees’ claim for damages by reason of carbon monoxide poisoning because of improper construction of the central heating system the jury found that James C. Weaver, Lorraine Weaver and the minor, Michael Weaver, suffered injuries in December, 1962, and January 1963; that such injuries resulted from monoxide intoxication; that the furnace installed in the Weaver home gave off carbon monoxide gas which escaped into the house; that the giving off of such carbon monoxide gas resulted from the manner in which the furnace was installed; that the manner of the installation was negligent, and that such negligence was a proximate cause of the injuries suffered by the Weavers. The jury further found that the amount of money, if paid in cash, which would reasonably compensate the Weavers *762 for their injuries proximately resulting from the inhaling of such carbon monoxide gas was as follows: James C. Weaver, Five Hundred Dollars; Lorraine Weaver, Eight Hundred Dollars, and Michael Weaver, One Hundred Dollars. In their points 19 through 39 appellants complain of the lack of pleadings and the lack and insufficiency of the evidence to support such findings.

We sustain appellants’ points complaining of the insufficiency of the evidence to support the findings that the furnace in the Weaver home gave off carbon monoxide gas and that the injuries sustained by appellees resulted from carbon monoxide intoxication. The testimony concerning carbon monoxide poisoning and the injuries alleged to have resulted to appellees therefrom came from three witnesses, ap-pellees, James Weaver and wife, Lorraine Weaver and Mr. James R. Gant. Mr. and Mrs. Weaver testified, in effect, that in November of 1962, two months after moving into the house in question, the weather became cold enough to turn on the furnace; that after the furnace was turned on and the nights began to be cold members of the family would wake up in the mornings with headaches, dizziness and nausea; that such conditions were particularly apparent when it was so cold that the heater was burning a great portion of the night; that when the nights were not so cold or when they turned the thermostat down so that the furnace would not operate so much they were not bothered by headaches, dizziness and sickness, but, if in the morning they turned the thermostat up so the furnace would begin to burn again, the nausea, dizziness and headaches would reappear; that, particularly in the back bedrooms and bath, one’s head would begin to ache within a short period of time and there would be nausea and dizziness. Mrs. Weaver stated that on some occasions she got up with a headache and went out of the house to her clothes line and the fresh air always made her feel better. She also stated that on mornings when her husband woke up with a headache and nausea which continued until he went to work that he would feel better after he left the house and got to his work. Mr. and Mrs. Weaver both testified concerning the condition of their son who occupied a back bedroom. They stated that one night while the furnace was on they heard their son calling and went back to see about him; that his lips and fingernails were blue; that he complained of a bad headache and was very sick and dizzy; that on one occasion he began feeling bad as he sat at his desk; that when he went to his closet and reached up on the shelf for something he felt even worse and went to his bed. The boy’s condition was such that the parents were alarmed and carried him to Galveston County Hospital where he was examined and treated by a physician. He was so ill that his parents had to support him to get him into the car. The visit to the hospital was on Saturday night January 12th and the boy continued to be sick and dizzy and suffer from headaches until Monday when the Weavers took him to their family physician. The Weavers testified that their physician could not determine the cause of their son’s illness; that it was evident that the boy was ill but the doctor was unable to determine what was causing it; that the doctor did not at that time recognize the boy’s condition as anything that he could identify. Mr. and Mrs. Weaver testified that during this period they also suffered greatly from nausea and headache.

The evidence indicates that the trouble with headaches and sickness lasted through the winter of 1962-63 and part of the next winter. Mrs. Weaver testified that it appeared to her and her husband that the trouble was connected in some way with the central heating furnace although they couldn’t smell any gas; that on several occasions they considered the possibility that it might be something in the air they were breathing. In any event the matter caused them much concern, worry and strain. The Weavers left the bedroom windows open at night and took turns staying awake. Sometimes they turned the furnace off, even *763 when it was very cold. They noted that when the furnace was off there were no illnesses, but when the furnace was turned on headaches and nausea returned. Sometimes when it was cold the Weavers had to wear coats in the house because they were afraid to trust the furnace.

Mr. Jim Gant was district manager for Lennox Industries, Inc., which company installed the central heating unit in the Weaver home. Mr. Gant came to the home of the Weavers to inspect the furnace two or three times during October 1963. His visit and inspection was in response to a letter written by the Weavers to his company. He stated that the purpose of his inspection was to determine if the unit had been installed properly and in accordance with good practice. He stated that Mrs.

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Bluebook (online)
412 S.W.2d 760, 1967 Tex. App. LEXIS 2315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blume-v-weaver-texapp-1967.