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Mercer v. Vinson

Supreme Court of Arizona

March 11, 1959

Charles E. MERCER, administrator of the estate of Paul Dean Horton, deceased, and as administrator of the estate of Herrietta Jo Horton, deceased, Appellant,
James M. VINSON and Carroll L. Rima, Appellees.

Page 855

Rehearing Denied April 15, 1959.

Page 856

[85 Ariz. 283] Clark & Carson, Phoenix, for appellant.

McKesson & Renaud and J. Gordon Cook, Phoenix, for appellee Vinson.

Snell & Wilmer, Phoenix, for appellee Carroll L. Rima.


This action was commenced by appellant as administrator of the estates of Paul Dean Horton and his wife, Henrietta Jo Horton, deceased, for their wrongful deaths caused by the inhalation of carbon monoxide gas. Appellee Vinson was the owner of a house trailer rented to the decedents which was occupied by them at the time of their deaths. Appellee Rima was the owner of a trailer park in which the trailer was occupying space. At the close of all the evidence, the trial court directed a verdict in favor of the appellees and against the appellant on the ground that there was no question of fact to be presented to the jury for its determination.

The appellant assigns as error the granting of the motion for a directed verdict for two reasons: (1) There was sufficient evidence to establish that the deaths of decedents were solely and proximately caused by the latent defects in the premises; and (2) the Gas Appliance Act, A.R.S. § 36-1621 et seq. governed the liability in that there was a failure to install a vent or flue in the gas heater of the trailer prior to the occupation by decedents. Since we are of the opinion that the Gas Appliance Act is applicable in that the legislature has prescribed the duty owed by the appellees to the deceased, which duty was admittedly breached, it is unnecessary to determine whether appellant's alternate theory of liability sounding in common-law negligence has any application to the facts.

The evidence is undisputed that a young married couple, Paul Dean Horton, aged nineteen, and Henrietta Jo Horton, his wife, aged seventeen, on October 16, 1952 rented a house trailer owned by Vinson. This trailer was equipped with a liquefied petroleum gas space heater. Such a gas appliance is, by definition, an appliance included within the purview of the statute A.R.S. § 36-1621. On November 9, 1952, decedents were both found dead on the bed inside the trailer, and subsequently the cause of death was determined to be carbon monoxide poisoning. The gas heater was unvented; that is to say, there was no vent or flue attached to the collar of the heater

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extending to the outside air above the roof line.

The Gas Appliance Act, A.R.S. subsection A of Section 36-1623 provides:

'Gas appliances designed for space heating or water heating installed or placed in tourist courts, camps, hotels and lodging houses after June 26, 1952 shall be connected to an effective [85 Ariz. 284] vent or flue leading to the outside air not less in size than the vent collar on the appliance.'

It is apparent from the most casual reading of this statute that if the housing accommodation rented to the decedents comes within any of the categories specified by the statute, then the undisputed evidence establishes its violation. We said in Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125, 127, that there can be no dissent from the principle very aptly set forth in Salt River Valley Water Users Ass'n v. Compton, 39 Ariz. 491, 8 P.2d 249, 251:

'Actionable negligence may be of two kinds, either statutory or common law. Where a valid statute, enacted for the public safety, or governmental regulations made in pursuance thereof, provide that a certain thing must or must not be done, if a failure to comply with the regulations is the proximate cause of injury to another, such failure is actionable negligence per se.'

It is asserted that the statute has no application to this case because the gas heater was installed prior to the effective date of the Act of June 26, 1952. The testimony shows that Vinson acquired this trailer on July 2, 1952; that it appeared the heater was a factory installation and that the trailer was a 1948 model; that therefore the only reasonable inference is that the heater had been installed in the trailer long before the effective date of the Act. We reject this. A.R.S. § 36-1623 requires that gas appliances installed or placed after June 26, 1952 be connected to an effective vent or flue leading to the outside air. Assuming that the heater was installed in the trailer at the time of the manufacture thereof, nevertheless it was not placed on Rima's property until October of 1952. We think the act of placing the trailer in the tourist park also placed the gas appliance thereon, and since this was subsequent to the effective date of the Act, it was within the purview of the statute.

We do not think that one who moves a cabin or a hut or, as here, a trailer with a gas appliance in it is in a different category than a person who constructs or builds such a cabin or hut on the land and then or thereafter installs a gas appliance in violation of the statute. The Act does not contemplate a distinction based on degrees of portability. Such a distinction must be rejected because there is no basis whatsoever in the statute for it. Accordingly, it was error for the trial court to direct a verdict in favor of Vinson because irrespective of the presence or absence of Rima's liability, Vinson's action in placing the heater after the effective date of the Act in a trailer park was a violation of the Act.

[85 Ariz. 285] This leads us to the appellees' next contention. It is urged that the words 'tourist courts', 'camps', 'hotels', and 'lodging houses' do not include the business in which Rima was engaged, that is, trailer parks. The answer to this is, of course, to be resolved by a determination of whether a trailer park can be categorically included within any of the enumerated words. In so far as the Act generally is concerned, it is remedial in character, being designed to protect the health and safety of persons using these classes of public accommodations. As such, it will be construed liberally to effect the legislative purpose.

A trailer park is just what the words seem to imply. It is a place where space may be rented upon which to park trailers. The statute is specifically directed to the venting of gas appliances in those types of accommodations usually considered as of a transient or temporary nature. This leads to the conclusion that in its application

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the statute was intended to cover accommodations primarily designed to serve those ...

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