People v. Neff

Defendant was charged in two counts with the crime of manslaughter, in that, on January 12,1952, he unlawfully and without malice killed two persons. The deaths resulted from carbon monoxide poisoning, which was caused by fumes from a gas heater in a hotel where defendant was employed as manager. In a trial by jury, he was found guilty as charged in each count. His motion for a new trial was denied. Imposition of sentence was "suspended, and probation was granted upon the condition that he serve six months in the county jail. He appeals from the order denying his motion for a new trial and from the judgment.

Appellant contends that the judgment is contrary to law, and that the court erred in instructing the jury.

On January 1, 1950, the Farmers and Merchants Bank and Mr. and Mrs. D. S. Snyder entered into a written lease agreement whereby the bank leased the Grant Hotel in Long-Beach to Mr. and Mrs. Snyder. During said month the Snyders employed defendant, their son-in-law, as manager of the hotel. From that time to the time of trial, defendant continued to work in that capacity. Mrs. Snyder died on November 26, 1951. Thereafter, Mr. Snyder lived at the hotel part of the time, and was living there in January, 1952.

On January 11, 1952, Ronald Wallace, Jr., and Wanda Wallace, husband and wife, registered at the hotel and occupied room 12. On January 12th, about noon, a maid entered the room and found that Mr. and Mrs. Wallace were dead. They were on a bed, and, according to the maid’s testimony, the gas radiator was burning “full blast.”

Room 12 was approximately 12 feet long and 11, feet wide. The door of the room was in the west wall, and there was a double window in the east wall and a double window in the north wall. Inside the room there were two beds, a dresser, a small table, a washbasin and the gas radiator. The bed on which Mr. and Mrs. Wallace were lying was near the door. The gas radiator was connected to a gas supply pipe which extended from the south wall. In the said wall, by the gas pipe, and about 18 inches above the floor, there was a circular opening into a rectangular cement vent or flue within the wall. Said vent or flue extended from said circular opening to the roof and its inside dimensions were 2 inches by 4 inches. A police officer, who made a drawing of the floor plan of the room (People’s Exhibit 1), testified that, according to marks on the floor which could have been made by that radiator, the radiator was about 3 feet from the bed on which Mr. and Mrs. Wallace were found, and the back of the radiator was about 6 inches from the south wall. Said radiator was approximately 30 years old and was manufactured by the Pacific Gas Steam Radiator Company. In the top of the radiator there were two holes, each being one-half inch in diameter, which apparently had been drilled after the radiator was purchased. In the back of the radiator there was a vent outlet. The outlet, which was below the level of the burner, had been enlarged from its

The maid, called as a witness by the People, testified that when she opened the door of the room the fumes rushed at her, and the flame was coming out from under the open heater; she went to the radiator, turned the gas off, and observed that the vent pipe was out of the radiator and lying on the floor; the other end of the vent pipe was in the (wall) socket; she then left the room, saw defendant in the hall and told him there were two bodies on the bed and for him to “Take over”; defendant and his wife walked into the room and closed the door—this was about 12:15 p. m.; they stayed in there for “a while”; she (witness) stood there five seconds and then went upstairs to work; thereafter the defendant came to the witness and told her to practically close her eyes to what she had seen and to keep her mouth shut—■ that he would take care of what had happened; about 3 p. m., she entered room 12 again and observed that the pipe was “shoved into the radiator.” She testified further that on two occasions prior to the deaths of Mr. and Mrs. Wallace she had called defendant’s attention to the vent pipe because she had observed the pipe on the floor like she found it on the 12th, and defendant told her that he would take care of it; the first time she told defendant about the vent pipe was in the fall (1951), when she had moved an occupant of room 12 to another room; defendant asked her why she moved the occupant from room 12, and she told him that "the occupant had objected to gas fumes; she told defendant “that gas is leaking in that heater,” and it is time that he “took care of that before some danger comes to someone”; the second time she mentioned the vent pipe to defendant was about five days before the deaths of Mr. and Mrs. Wallace, at which time she told defendant, “You haven’t fixed that vent pipe into that radiator as yet. Do something about it before some danger will come to someone.” On cross-examination, counsel for defendant read testimony of the witness, from the transcript of the preliminary examination, to the effect that she saw the vent pipe out of the radiator on January 11th and she did not attempt to put it back and she did not tell the defendant about it; and that she did not

The superintendent of distribution for the gas department of the city of Long Beach, called as a witness by the People, testified that on January 16th he went to the hotel; he went into room 12 and ascertained the size of the orifice in the radiator (size No. 51*); it would permit 18 to 20 cubic feet of gas per hour to go through the valve; in his opinion that size heater is not capable of burning that much gas properly; the product of incomplete combustion is carbon monoxide.

Another employee of that gas department, called as a witness by the People, testified that he was a “trouble shooter” for the department and had worked there about 31 years; he had become familiar with various types of gas heating equipment; on January 16th he went to room 12 to connect the heater; he noticed that the part of the vent which goes into the heater was very loose and barely inserted into the heater; when he lighted the heater the flame came through the two holes; he considered this was an improper adjustment, and he removed the orifice, which was a No. 51, and put in a smaller orifice, which was a No. 57; on January 17th, he returned to room 12, disconnected the heater and turned it over to the police department; on February 4th, he went to room 12 and installed the heater, as nearly as he could, in the same “spot” it was in before he removed it; on February 16th, he removed the heaters from all the rooms in the hotel at the request of defendant, and 20 of the 47 or 49 heaters were similar to the heater in room 12.

Mr. Berry, called as a witness by the People, testified that he had been a consulting gas engineer since 1926; he had been employed by the district attorney to make an investigation in this ease; on February 4th, he went to room 12 and conducted certain tests in the presence of another engineer, defendant and others; he examined the old flue— it was a rectangular cement flue, very commonly used in the

Another witness, called by the People, testified that he was assistant manager of the American Gas Association Laboratories, Incorporated, a nationally recognized testing lab

Mr. Fairchilds, called as a witness by defendant, testified that he is a consulting gas engineer; he was in room 12 when Mr. Berry conducted the tests; they were fairly and scientifically conducted, and the proper equipment was used; within a few minutes after the heater was lighted there was a strong odor of aldehydes which indicated that there was carbon monoxide present in substantial quantities; the heater was overfired and overpiped; the safe quantity of gas which could be piped into the heater and burned in that room would not be over 7 cubic feet an hour; the holes in the top of the heater would take care of some of the overfiring, and they would tend to cause additional combustion; the heater is the only one of that description he has ever seen with holes in it; it is not necessarily true that, with the two holes in the heater, some of the gas would escape into the room unconsumed; without the holes in the top, the heater would be apt to go out and not burn at all when first lighted; he did not consider that the heater was of a safe design, and he would not recommend that the heater have holes in the top; the vent, being below the burner, precludes the removal of all the noxious fumes; a concrete vent is one of the poorest types for a heater of this kind; they went to the roof and “checked,” and after the heater had been burning for two hours the vent was not handling the fumes from that heater.

Defendant's wife testified that she has been employed at the hotel continuously as a clerk or manager since her father bought the hotel; after the bodies were discovered she saw defendant go into the room and he did not close the door; she (witness) did not go into the room with him but remained near the door; the maid never made any complaint to defendant in her presence that the heater was out of working order.

Defendant testified that he had worked at the hotel since January, 1950; his duties were to check people in, see that they were comfortable and act as clerk and manager of the

It does not appear whether appellant knew, prior to the deaths, that Mr. and Mrs. Wallace had registered at the hotel or that they were occupants of room 12.

As above shown, appellant was charged in two counts with manslaughter, and he was found guilty as charged. The following instruction was given: “Manslaughter is the unlawful killing of a human being without malice. One kind of manslaughter, the definition of which is pertinent in this ease, is involuntary manslaughter, being that which is done in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. ’ ’ It cannot be determined whether the verdict was based upon a finding that appellant committed an unlawful act, or that he committed a lawful act in an unlawful manner or without due caution and circumspection.

A question herein is whether appellant committed an unlawful act. The People argue that appellent violated certain provisions of the State Housing Act (Health & Saf. Code). The provisions referred to are: that the internal area of the vent (in the wall leading to the outside air) shall not be less than 12 square inches (Health & Saf. Code,

Defendant contends that the duty to comply with those provisions of the State Housing Act did not rest upon him as an employee of the lessee.

As above shown, the internal area of the cement vent in the wall was 8 square inches, which was smaller than the minimum area required by the State Housing Act (12 square inches). In order to increase the size of the wall vent to comply with the statutory requirement it would have been necessary, of course, to make a major structural alteration of the hotel building. It does not appear that the defendant was authorized by the owner or lessee or anyone to make any structural change in the building. He had no statutory duty to make a structural change in the building. Furthermore, it is provided in section 41, chapter 1127, (p. 2895) of the Statutes of 1951 Regular Session, that no provision of the act “shall be construed to require a structural addition, structural alteration or a structural change in or on an existing building or the replacement of an existing appliance which requires a structural addition, structural alteration or a structural change in or on an existing building where such is not required by law prior to the effective date of this act.” An instruction was given which embodied the provisions of said section 41. There was no evidence that the hotel building was not in existence prior to the enactment of the statute, in 1937, requiring that the internal area of a vent be not less than 12 square inches. The appellant did not commit an unlawful act in failing to enlarge the wall vent.

The provision of the State Housing Act that “Every gas burning appliance shall be approved by a nationally recognized testing agency” is uncertain and vague. It cannot be determined from that act or any statute (1) what is meant by the words “a nationally recognized testing agency” or (2) whether any such testing agency exists by virtue of any statute; or (3) whether any such agency is empowered by law to issue any certificate of approval. Section 15004.2 of the Health and Safety Code does state that “ ‘Approved agency’ means an established and recognized agency regularly engaged in conducting tests or furnishing inspection services, and approved by the enforcement agency.” That section, however, does not define “a nationally recognized

As above shown, the vent outlet of the heater was below the level of the burner. The expert testimony was that such construction was unsound, the design was unsafe, and the heater might be dangerous even when properly connected to the vent pipe. There were similar heaters in approximately 20 other rooms in the hotel. It is apparent that the cost of purchasing and installing heaters of different construction and design would be extensive. The appellant was manager of the hotel. He testified that his duties were to act as clerk and manager, and to check people into the hotel. He also testified that when the heaters and plumbing had to be replaced the bank (owner) and Mr. Snyder (lessee) had them replaced. There is no evidence that appellant was required under any agreement with the owner or lessee to purchase and install new heaters or repair the heaters which were in the hotel. The two respects in which the heater was allegedly in disrepair, as distinguished from the faulty construction and design of the heater, were: (1) the two holes in the top of the heater, and (2) the oversize of the vent outlet, in the back of the heater, which caused the vent pipe to fit loosely in the heater. Each of said two holes was one-half inch in diameter. The holes were not the result of deterioration, but were placed in the heater after it had been purchased, apparently for the purpose of improving it. There was expert testimony that if the holes were not there, it is likely that the heater would “go out” when first lighted. Also, there was expert testimony that the holes did not have much bearing on whether the heater was safe, and that with

Another question herein is whether appellant committed a lawful act without due caution and circumspection. As above shown, there was evidence to the effect that the maid notified appellant on two occasions prior to the deaths that the end of the vent pipe (which connected with the heater) was out of the heater and lying on the floor. Appellant testified to the effect that he had not been so notified; and that he did not know that the vent pipe connection or the heater was defective. The maid testified further that she and appellant quarreled frequently during the time she worked at the hotel, and when she quit working there she was angry with him. The evidence as to whether appellant knew or should have known of the defective condition of the vent pipe connection was conflicting,—it was legally sufficient to support either a finding that he knew or should have known of such condition, or a finding that he did not know and should not have known of it. Appellant argues to the effect that, in view of that close question of fact, certain instructions given at the request of the People were erroneous. He refers (1) to an instruction defining negligence and ordinary care as those words are usually defined in civil eases (People’s instruction No. 18) ; and (2) to instructions which include statements to the effect that in a manslaughter case negligence, or lack of due caution and circumspection, does not need to amount to wantonness or recldessness (People’s instructions Nos. 30 and 16.) The instructions so referred to, except No. 16, are quoted in the

The judgment and the order denying the motion for a new trial are reversed.

Shinn, P. J., and Vallée, J., concurred.

Eespondent’s petition for a hearing by the Supreme Court was denied June 11, 1953. Carter, J., and Spence, J., were of the opinion that the petition should be granted.