Cogswell v. Robertshaw Controls Co.

• Decision Date: 30 January 1979
• Docket Number: No. 76-233,ITT-G,76-233
• Citation: 274 N.W.2d 647,87 Wis.2d 243
• Court: Wisconsin Supreme Court
• Parties: Merton B. COGSWELL and Vera J. Cogswell, Harold E. Robbins and Audrey S. Robbins, Lillian Peterson and Roger K. Peterson, Roger Leland Peterson, a minor by his Guardian ad litem, John W. Fetzner, Plaintiffs, v. ROBERTSHAW CONTROLS COMPANY and The Travelers Insurance Company, Appellants,eneral Controls, Inc., Respondent.

Page 647

274 N.W.2d 647

87 Wis.2d 243

Merton B. COGSWELL and Vera J. Cogswell, Harold E. Robbins

and Audrey S. Robbins, Lillian Peterson and Roger K.

Peterson, Roger Leland Peterson, a minor by his Guardian ad

litem, John W. Fetzner, Plaintiffs, v. ROBERTSHAW CONTROLS COMPANY and The Travelers Insurance

Company, Appellants,

ITT-General Controls, Inc., Respondent.

No. 76-233.

Supreme Court of Wisconsin.

Submitted on Briefs Nov. 29, 1978.

Decided Jan. 30, 1979.

Doar, Drill, Norman, Bakke, Bell & Skow, New Richmond, for appellants.

Wilcox & Wilcox, Eau Claire, for respondent.

DAY, Justice.

This is an appeal from a judgment dismissing the third-party complaint and cross-complaints of the defendants Robertshaw Controls Company and The Travelers Insurance Company (appellants) against defendant ITT-General Controls, Inc. (respondent), entered July 20, 1976, the Honorable Robert F. Pfiffner, presiding.

The question on appeal is: Was the finding by the trial judge that a defect in the Unitrol valve in the water heater manufactured by Robertshaw caused an explosion injuring the plaintiffs against the great weight and clear preponderance of the evidence?

This case involves a dispute between two manufacturers as to whose product was responsible for causing a gas explosion in the basement of a summer cabin on Upper Eau Claire Lake in Bayfield County.

In September of 1965, Colonel Roger K. Peterson and Lillian Peterson acquired the cabin which they used over a period of five years as a vacation home. In the basement of the cabin there was a propane gas fired furnace containing an ITT-General Control B52 valve and pilot relay valve. There was also a water heater in the basement containing a Robertshaw Unitrol 110 control which regulated the flow of gas to the main burner and the pilot burner. In the case of each appliance, the valve was designed to shut down the flow of gas in the event that the pilot light was extinguished. In addition, there was an electrically activated water pump in the basement.

Colonel Peterson followed a routine of shutting down the gas and water system at the end of the vacation season every fall, and re-establishing the systems in the following spring. The first time he lit the water heater after acquiring the cabin, he had trouble lighting the pilot light, but thereafter he never had any trouble with either appliance until the accident. Col. Peterson was the only one who either activated or shut down the furnace or water heater during the period from 1965 to 1971, except for one occasion when he contracted with a local plumbing and heating company to start up the systems.

At Easter, 1971, Col. Peterson re-established the flow of gas and water into the house and lit the burners in the furnace and water heater. From that time on until the accident, July 20, 1971, no one manipulated the controls on the water heater or the furnace.

A few days before the accident, Mrs. Peterson and her two children went up to the cabin. Colonel Peterson was away on assignment with the Air Force. On the evening of July 20, 1971 around 9:00 or 9:15 p. m., Mrs. Peterson ran water in the kitchen sink to clean up the kitchen when she noticed that there was no hot water. On inquiry, she learned that her daughter had run a bath at about 7:00 p. m. and the water "wasn't all that warm." Mrs. Peterson went down to the basement to investigate and saw that there was no flame in the pilot or main burner of the water heater. However, she saw that the dial on the control of the water heater was pointed to the "On" position. She attempted to turn the dial to "Off," but she could not move it. She did not check to see whether the pilot light in the furnace was on. The weather was cool enough to wear jackets at night.

Mrs. Peterson and her son Roger Leland Peterson left the cabin to get assistance from a neighbor. The neighbor, Mr. Merton Cogswell, came back to the Peterson cabin, along with Mr. Harold Robbins. Mrs. Peterson, her son Roger, Mr. Cogswell and Mr. Robbins went down to the basement of the cabin. Mrs. Peterson testified that the furnace was not running at the time they entered the basement. No one testified to smelling gas upon entering the basement. Mr. Robbins testified that he smelled gas for the first time at the instant of the explosion.

Mr. Cogswell went over to the water heater and examined the control. The dial was pointed toward "On." He saw no flame in the pilot or main burner. He neither heard nor smelled gas escaping from the main burner or the pilot. He could not turn the gas cock dial to the "Off" position. He next depressed the red reset button, and with the button depressed, he succeeded in turning the dial first counterclockwise, and then clockwise to the "Off" position. He continued to depress the red button, and knelt down with his face within six inches of the main burner. He neither heard nor smelled gas escaping. With his finger on the red button, he again turned the dial to "On." As he turned the dial from "Off" to "On," he heard a rumble, followed immediately by an explosion. He said that the rumble sounded like the ignition of gas, like a gas fired furnace going on. Mr. Cogswell variously estimated the amount of time he spent in the basement as two to four minutes on one occasion and six minutes on another occasion. He testified that he did not hear the water pump switch on when he was in the basement. Mr. Robbins testified that he heard a swish and a click almost simultaneous with the explosion. He said that he was familiar with water pumps and the sound he heard was not one he would associate with a water pump running. He smelled gas at the time he heard the swish and click.

Kenneth Atherholt, assistant to the general manager of Robertshaw Controls, explained that the Unitrol 110 valve on the water heater was designed to interrupt the flow of gas from the storage source through the control in the event that the pilot light were to go out. The valve is located immediately below the red button on the top of the control. When the red button is depressed manually, it opens the valve. If the dial is in an "Off" position, gas from the storage source will flow only as far as the gas cock and no further. If the dial is at the "Pilot" position, the gas will flow from the storage source into the valve and down to the pilot. However, if the dial is in the "On" position, and the valve is open, the gas would flow from the storage source into the valve and to both the pilot and main burners. Mr. Atherholt said that under industry standards, the maximum permissible time between the extinguishing of the pilot burner flame and the close of the valve below the red button is three minutes. This time period is called dropout time. He testified that when the Unitrol 110 valve was tested subsequent to the accident, the valve shut down within a minute.

The ITT-General Control valve on the furnace was also tested for dropout time. Mr. Atherholt testified that four times the pilot light was lit and then extinguished, and it was still possible to relight the pilot without resetting the valve. From this he concluded the general valve was not functioning properly because it should not be possible to re-establish the pilot light once the thermocouple near the pilot light has cooled. The tests on the General valve were repeated at a later date with...