Hooton v. Kenneth B. Mumaw Plumbing & Heating Co.

Levine, J., delivered the opinion of the Court. After the heating system in their 100-year old Catonsville home failed early in 1970, appellants (the Hootons) entered ⁵⁶⁷ into a contract for a replacement with appellee (Mumaw), which spawned the dispute leading to this appeal. Previously, the Hooton dwelling, which had not been air-conditioned, was heated with a steam-heat system utilizing a single boiler located in the basement. Pursuant to the contract, Mumaw replaced this with two separate “forced air” systems, one located in the basement designed to heat and cool the first floor, and the other located on the third floor for the purpose of serving that level and the second floor.

After those systems proved to be inadequate, the Hootons filed suit against Mumaw, alleging a breach of the contract and violations of the Baltimore County Building Code. At the conclusion of the Hootons’ case, tried without a jury, the trial judge granted Mumaw’s “motion for a directed verdict.” From that decision, this appeal is taken. The contract, in addition to specifying what was to be performed by Mumaw, provided: “4. Cold air return for 1st floor will be taken off main bottom step in hallway and also cold return put in one of the rear rooms.

This will give sufficient circulation for heating and cooling. “2. Furnish and install American Standard heating cooling unit adequate to heat and cool 2nd and 3rd floors. “. . . All work to be completed in workmanlike manner according to standard practices. . . .” (emphasis added). The basic contract price was $3400, all but $400 of which had been paid prior to the trial.

In their trial testimony, the Hootons vividly described the discomfort they had experienced after Mumaw completed its ⁵⁶⁸ work. For example, in mid-winter it was apparently not unusual for the temperature in some parts of their house to hover near the 50-degree mark — and even below that — while the thermostat was set at 80 degrees. As a consequence, they found it necessary to resort to space heaters, hot water bottles and heavy clothing, including Mrs. Hooton’s fur coat. They had similar problems with the air-conditioning, as illustrated by the testimony that in hot weather, they were unable to force the temperature below 85 degrees.

To establish their claim that these conditions resulted from defective performance by Mumaw, the Hootons produced as a witness, Fred W. Von Behren (Von Behren), whose qualifications as an expert went unchallenged. He held a degree in mechanical engineering from Johns Hopkins University, and also had pursued graduate studies in electrical engineering. His firm was engaged in designing utility systems in the heating, ventilating, air-conditioning, plumbing and electrical fields. In addition to designing such systems, he studied existing operations for inadequacies or deficiencies.

As the result of three visits to the Hooton residence, Von Behren arrived at certain conclusions respecting the work done by Mumaw, and also designed a replacement system. He testified that, in his opinion, the systems installed by Mumaw “were inadequate for either cooling or heating [the Hooton] residence.” By that, he meant that “the way they were installed and the way they were operating, it was not possible to achieve a reasonable level of comfort in either cold weather or in extremely warm weather.” He attributed this inadequacy to the “materials used, the design concepts that went into the system, and also the methods of construction.” By way of further specification, Von Behren stated that the air distribution system was too undersized because some of the ducts did not meet nationally recognized standards. In addition, the components of the systems were improperly installed in certain areas; there were “a large number of offsets, bends and fittings, and this just builds up friction to ⁵⁶⁹ the point where the fans cannot push the air through all this friction.” To further demonstrate the defects of the Mumaw systems, he testified that the air distribution limitations caused the heating systems to “go on and off and stay off for substantial portions of the time. . . . There is no way that sufficient heat could go to keep the place comfortable, yet, the automatic controls on the equipment keep it from operating because the equipment was so hot and the inadequacy of removal of flue gas had the safety controls cutting off the fan repeatedly . . . .” Since he was of the opinion that “there is no way that this system [installed by Mumaw] can be put in a satisfactory operable condition,” Von Behren concluded that, save for some minor parts, it should be replaced by an entirely new plant.

To that end, he designed a plan calling for a hot water system circulating through peripheral baseboards, retaining the forced-air concept only for the air-conditioning. The low bid for installing the system recommended by Von Behren was $9,750. In granting Mumaw’s “motion for directed verdict,” the trial judge ruled from the bench that the Hootons’ failure to prove how much damages they had sustained, if any, was fatal to their case. In the course of announcing his decision, he made the following observation concerning Von Behren’s opinion that the systems installed by Mumaw should be replaced: “. . .

What he wants to do is tear everything up and put in a new system. I am impressed with the gentleman’s qualifications, but I am not too impressed with the conclusion he comes to in this case. He says that the new system would cost nine thousand dollars or more, and, certainly, that doesn't make sense to This Court. . . .” (emphasis added). In their appeal to this Court, the Hootons present two issues for our consideration.

First, they contend that the lower court erred by not allowing Von Behren to testify that Mumaw violated certain provisions of the Baltimore County ⁵⁷⁰ Building Code. Secondly, and of greater consequence, they contend that the court erred in dismissing their case without requiring Mumaw to go forward with its defense. They maintain that the court failed to apply the correct test for dismissing a case at the conclusion of the plaintiffs evidence. (1) The Hootons sought to elicit testimony from Von Behren that Mumaw had violated the Baltimore County Building Code in several respects.

After a brief colloquy with counsel, the court sustained an objection to the admission of this testimony on the basis that the witness had failed to actually bring the code itself to court, and because he was apparently unable to furnish the specific code sections in question. In attacking this ruling, the Hootons contend that it was unnecessary for them to offer the building code into evidence, since Maryland Code (1957, 1971 Repl. Vol.) Art. 35, § 66A, which governed at the time of this trial, provided that: “The public laws, ordinances, regulations, and resolutions approved and enacted by the respective counties . . . shall be judicially noticed or shall be read in evidence ....” (emphasis added) 1 Thus, they say, it was unnecessary to present formal proof of the building code or otherwise offer it in evidence. See Plitko v. State, 11 Md. App. 35, 40 , 272 A. 2d 669 (1971), cert. denied, 261 Md. 728 (1971).

Mumaw does not seriously resist this argument, but urges instead that any error in this regard was harmless, since Von Behren was not shown to possess any expert qualifications concerning the building code. In view of the witness’ manifest qualifications as an expert in mechanical engineering, we do not agree that it was necessary for him to demonstrate that he was an expert ⁵⁷¹ on the Baltimore County Building Code itself, whatever that might have required, in order to testify that it had been violated. We cannot reach this issue here, however, since the Hootons made no proffer of what violations they proposed to establish. Since the case must