397 F.2d 971 (5th Cir. 1968), 24976, Stewart & Foulke, Inc. v. Robertshaw Controls Co.

• Docket Nº: 24976.
• Citation: 397 F.2d 971
• Party Name: STEWART & FOULKE, INC., et al., Appellants, v. ROBERTSHAW CONTROLS COMPANY and Dearborn Stove Company (Now Chancellor Corporation), Appellees.
• Case Date: July 12, 1968
• Court: United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 971

397 F.2d 971 (5th Cir. 1968)

STEWART & FOULKE, INC., et al., Appellants,

v.

ROBERTSHAW CONTROLS COMPANY and Dearborn Stove Company (Now Chancellor Corporation), Appellees.

No. 24976.

United States Court of Appeals, Fifth Circuit.

July 12, 1968

Page 972

Robert A. Gwinn, Dallas, Tex., Gus Sacopulos, Terre Haute, Ind., for appellants.

William N. Hamilton, John W. Copeland, Dallas, Tex., for appellees.

Before RIVES, BELL and GOLDBERG, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

This is an appeal from an action for indemnity based on breach of implied warranty by a retailer, Stewart & Foulke, Inc., appellant herein, against a stove manufacturer, Chancellor Corporation, and the manufacturer of a component part thereof, Robertshaw Controls Company. The action is to satisfy two Indiana judgments obtained against Stewart & Foulke through settlement agreements by the purchaser of a gas stove who was injured when the stove exploded and by the owners of the building which was demolished in the explosion.

Having denied motions for directed verdict filed by all parties, special issues were submitted by the court to a jury. The jury determined that the Indiana judgments did not result from a 'full dress, arm's length, good faith adversary proceeding' as that phrase was defined by the court. The jury also determined that the negligence of Stewart & Foulke was the proximate cause of the explosion, and that the stove was subjected to an abnormal and unintended use. Judgment was entered for the defendants. We affirm on the jury's first finding--the non-adversary proceeding issue. In this view of the case we do not reach the other assignments of error.

Chancellor manufactured the stove in question; Robertshaw manufactured its magnetic control valve. Chancellor sold the stove to Skelly Oil Company, not a

Page 973

party to this suit, who sold it to Stewart & Foulke and it was then sold, in turn, to Claude Bender. Bender had the stove installed in a building where he worked. The building was owned by Mr. and Mrs. Dome. The stove exploded some two years after it was purchased when Bender attempted to light it. The Domes and Bender filed separate suits against Stewart & Foulke in Indiana based on a breach of implied warranty. The basis of the alleged breach was that the magnetic control valve did not operate properly and therefore the stove was not reasonably fit for its intended use.

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