Dealers Transport Co. v. Battery Distributing Co.

• Decision Date: 04 June 1965
• Citation: 402 S.W.2d 441
• Parties: 2 UCC Rep.Serv. 896 DEALERS TRANSPORT COMPANY, Inc., Appellant, v. BATTERY DISTRIBUTING COMPANY, Inc. and General Dynamics Corporation, Appellees. BATTERY DISTRIBUTING COMPANY, Inc., Appellant, v. GENERAL DYNAMICS CORPORATION, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 441

402 S.W.2d 441

2 UCC Rep.Serv. 896

DEALERS TRANSPORT COMPANY, Inc., Appellant, v. BATTERY DISTRIBUTING COMPANY, Inc. and General Dynamics

Corporation, Appellees.

BATTERY DISTRIBUTING COMPANY, Inc., Appellant, v. GENERAL DYNAMICS CORPORATION, Appellee.

Court of Appeals of Kentucky.

June 4, 1965.

As Modified on Denial of Rehearing May 13, 1966.

James W. Hendricks, Thomas W. Speckman, Gavin H. Cochran, Marshall, Cochran, Heyburn & Wells, Louisville, for Dealers Transport Co. Inc.

Wm. A. Miller, Louisville, for Battery Distributing Co. Inc.

Fielden Woodward, Robert P. Hobson, Woodward, Hobson & Fulton, Louisville, for General Dynamics Corp.

DAVIS, Commissioner.

The appellant, Dealers Transport Company, suffered property damage when a fire on its premises caused an explosion of acetylene gas. This action was instituted by Dealers against appellee Battery Distributing Company (the jobber from whom appellant obtained the acetylene tanks in controversy) and against appellee General Dynamics Corporation (the company which had manufactured the acetylene gas and injected it under pressure into the tanks). Hereafter we shall refer to appellant as Dealers, and to the appellees as Battery (jobber) and General (manufacurer). The damage claims were premised alternatively on the theories of negligence and breach of implied warranty.

The trial court granted summary judgment absolving General (the manufacturer) from liability. The case was submitted to a jury with respect to Dealer's claim against Battery; the jury found for Battery. Appellant presents five assignments of error: (1) The trial court erred in granting summary judgment for General; (2) appellant is entitled to judgment n.o.v. against General; (3) the court erred in submitting contributory negligence of appellant as a defense; (4) the court erred in imposing an inspection duty upon appellant; (5) the court should have granted judgment n.o.v. for appellant against Battery.

There is an appeal by Battery against General; this appeal is properly prosecuted as a precautionary measure, since Battery had cross-claimed against General for indemnity in the event it should be held liable to Dealers. Since the judgment on the verdict granted no relief against Battery the court dismissed Battery's cross-claim against General. Battery's appeal seeks reversal of that portion of the judgment in the event it should be determined that Battery is liable to Dealers. We consider and dispose of both appeals herein.

After all evidence was in the trial court sustained Battery's motion for a directed verdict as to the negligence theory, but submitted the case to the jury on breach of implied warranty of fitness.

In the afternoon of Friday, February 26, 1960, appellee Battery delivered to Dealers five large oxygen tanks, two large accetylene tanks and one small acetylene tank; all of these tanks, filled with pressurized gas, had been obtained from General by Battery. There was no privity of contract between Dealers and General.

The tanks were delivered and set in place by a servant of Battery. For purposes of this opinion we need give attention only to the one small acetylene tank and one large one which stood next to it. These two tanks were put in place along the wall of Dealers' welding shop, and were positioned about two inches apart. The small tank was at the head of a line of tanks and the large one rested immediately alongside it. The tanks were not moved from their respective positions from the time they were so placed by Battery's servant until the fire and explosion involved in this case.

At 11:30 p.m. on Monday, February 29, 1960, Dealers' employee Irvin Bledsoe began his duties; his task required his use of an electric arc welder with which he proposed to weld a reinforcement plate on a trailer. Bledsoe was situated 'about twelve to thirteen' feet from the acetylene tanks as he welded. It was nearly midnight when Bledsoe started using the welder. He had continued the welding for about twenty minutes when he found it necessary to go to the back of the room to increase the amperage on the welding machine. In going to make this adjustment Bledsoe passed within one foot of the tanks but observed nothing unusual about them. He did not hear any sound of escaping gas, nor did he detect the odor of acetylene. The witness stated that he likely could not have heard the sould of escaping gas anyway due to the greater volume of noise emanating from the welding machine.

When Bledsoe returned from adjusting the amperage (the exact time he consumed in this is not revealed) he discovered flames approximately six to eight inches high around the bottom of the large acetylene tank. Bledsoe then left the room to notify his foreman of the fire; in a very brief time he had the foreman arrived at the site of the fire; then the flames enveloped the large tank and had obtained height of 'about halfway up the building.' Bledsoe said that the small tank was 'white bot,' although no flame emanated from it. After a quick appraisal of the situation Bledsoe and Smith, the foreman, decided that they should run from the scene, which they did. Almost immediately the small tank burst; thereupon there was an explosion of the acetylene which had been released from the smaller tank. The consequent property damage was extensive; the parties stipulated that the damages exceeded $15,000.00.

It was shown that it is a prevailing custom to engage in arc welding activities in confined areas containing tanks of acetylene. Bledsoe stated that an asbestos blanket was available, but that it had not been used to protect the acetylene tanks; he stated that the asbestos blanket was never used for such purposes, but was used when welding was being done on a vehicle equipped with a gasoline or fuel tank. Another witness said the asbestos blanket was used only to ptotect paint on vehicles on which welding was being performed. Bledsoe said that hot sparks and slag will (and did on the occasion of the fire) fly from fifteen to eighteen feet from the point of welding. However, Bledsoe was quite positive that nothing lay on the floor near the acetylene tanks which could have been the ignition point of the fire.

It was shown in evidence that acetylene tanks (including the tanks involved in this case) are provided with four fusible plugs, as a safety factor. Two plugs are located near the base and two at points higher on the tank. These plugs are so designed as to melt when subjected to heat at 212 degrees Fahrenheit. The structure of the tank is such that it is to be able to withstand much higher temperatures, thus the plugs should permit the gas to escape before the tank will burst because of increased internal pressure.

It is the contention of appellant that one of the lower plugs on the larger tank extruded and permitted acetylene to escape. According to this theory, the extrusion of the plug resulted from a defective condition in the plug. The escaping gas was ignited, reasons appellant, and the heat from its combustion was so intense that the contents of the smaller tank expanded until that small tank burst; then it was that the released acetylene exploded into flame and damaged appellant's property. Under this theory, the appellant contends that the fusible plugs on the small tank failed to function according to their intended purpose, and that had they worked properly the acetylene would have been released slowly from the small tank without the consequent violent eruption. In short, it is appellant's claim that the fusible plug or plugs on the big tank improvidently permitted the gas to escape too soon and the plugs on the small tank held the gas too long.

There is unanimity among the witnesses that all four of the fusible plugs on the big tank had released when examined after the fire. It appears that none of the four plugs on the small tank had opened sufficiently to permit acetylene gas to escape from the tank, although one witness for Battery expressed the view that one of the plugs in the small tank had 'relieved.' In the words of the witness, a plug in the small tank 'had blown, but not as clean a blow'; he explained that traces of tin alloy left in the fusible plug indicated to him that there had not been a 'clean blow.'

After the fire witnesses examined the large tank, but could find no holes or ruptures in it, there was a bulge in the large tank, but the only openings through which the gas could have escaped, said the witness, were those occurring when the safety plugs 'relieved.'

Qualified witnesses for appellant expressed the view that the safety plugs in the small tank should have functioned by reason of the heat from the fire around the large tank. It was explained that the igniting temperature of acetylene is about 850 degrees Fahrenheit as compared to 212 degrees at which the fusible plugs should have opened. Furthermore, the small tank was designed to withstand having its contents heated to 500 degrees without rupture. From this it was reasoned by the appellant's witnesses that ample heat existed for sufficient time to cause the small tank's safety plugs to open.

A witness for the appellee Battery stated that he could ascribe only three hypotheses as explanatory of the extrusion of the safety plug on the large tank: (a) Rough handling, (b) application of heat, and (c) the plug was defective. As noted, the tank was delivered and placed in position by Battery's servant; there was no showing that any rough handling occurred while the tank was in appellant's plant. There was no evidence that any gas had leaked from the tank, so far as its presence could have been detected by its odor or its escaping sound, up to the very moment of the blaze.

For Battery it is argued that the evidence for appellant did not warrant submission of the case to the jury, so that all of the other questions are academic. In light of this, we deem it appropriate to first discuss the point whether the...