Balthazor v. B & B Boiler & Supply Co., 37852

• Decision Date: 06 May 1950
• Docket Number: No. 37852,37852
• Citation: 169 Kan. 188,217 P.2d 906
• Parties: BALTHAZOR et ux. v. B & B BOILER & SUPPLY CO. et al.
• Court: Kansas Supreme Court

Page 906

217 P.2d 906

169 Kan. 188

BALTHAZOR et ux. v. B & B BOILER & SUPPLY CO. et al.

No. 37852.

Supreme Court of Kansas.

May 6, 1950.

Rehearing Denied June, 16, 1950.

Syllabus by the Court.

1. In an action for damages alleged to have been sustained when a heating system burning propane gas ceased to operate, the record is examined and it is held the action was brought upon the theory that the defendant sold plaintiff propane gas containing water, which froze and caused the regulator on the tank to cease to function.

2. In an action such as that described in the first paragraph of this syllabus, it is held the action was not based upon negligence of the defendant.

3. In an action such as that described in the first paragraph of this syllabus, the record is examined and it is held there was substantial evidence there was water in the propane delivered by defendant, which froze and caused the regulator on the tank to cease to function, and the demurrer of defendant to plaintiff's evidence was properly overruled.

Donald R. Newkirk, of Wichita, argued the cause, and Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Dale M. Stucky, all of Wichita, were with him on the briefs, for the appellant.

Joe T. Rogers, of Wichita, argued the cause and Roy L. Rogers, of Wichita, was with him on the briefs, for the appellees.

SMITH, Justice.

This is an action to recover damages alleged to have been sustained when a heating plant in a poultry house operated by plaintiffs ceased to function one morning. A mistrial was declared after the evidence of both parties had been introduced. The appeal is from the trial court's order overruling defendant's demurrer to plaintiffs' evidence.

The action was brought against three defendants, the B. & B. Boiler and Supply Company, which made the propane tank involved; the Industro Sales and Equipment Company, which sold plaintiffs the tank, and the Mid-Continent Butane Equipment Company, which sold plaintiffs propane gas at various times.

Subsequently an amended petition was filed against the Mid-Continent alone. The action was carried on against it only. The amended petition alleged the existence of the parties; that plaintiffs were operating a plant for raising chickens from two or three days old to maturity; that about November 1, 1947, plaintiffs purchased from Industro Sales and Equipment Company a thousand gallon propane tank, together with a regulator to control the flow of gas, and this tank was connected with pipes through which the gas flowed to heating units; that they purchased from Mid-Continent propane gas, as follows: November 1, 1947, 670 gallons; on December 12, 1947, 300 gallons; on January 24, 1948, 670 gallons; and on February 18, 1948, 225 gallons; that this gas was delivered to plaintiffs by Mid-Continent; that about February 7, 1948, the equipment did not work; the fires went out and before this was discovered the young chickens in the plant were chilled so that 1,214 of them died and 2,600 others were damaged; that they were in all worth $3,913; that plaintiffs paid $228.98 for the propane and had lost $2,191.25 on account of feed and care.

The amended petition then contained a paragraph, as follows: 'Plaintiffs further charge that such loss above set out resulted to them by reason of the grade or condition of the propane sold to them by the defendant, the Mid-Continent Butane Equipment Company in that such propane was inferior and defective and that it contained elements of water and that such water froze in said regulators and caused the failure herein set forth.'

Judgment was asked for $6,104.95.

The answer was a general denial and an allegation that if defendant was guilty of any negligence the plaintiffs were guilty of contributory negligence. The reply was a general denial.

After the opening statement, defendant moved that plaintiffs be compelled to elect upon what theory they were proceeding, whether negligence or breach of implied warranty. This motion was overruled. In response to a query by counsel for defendant as to what theory the plaintiffs were proceeding under, the trial court said: 'Just what he has pleaded.'

The plaintiffs were husband and wife. Homer J. Balthazor, the husband, testified about acquiring the heating system and that they had a thousand gallon tank with a regulator on top; that they bought propane from Mid-Continent; that they system 'froze up' about the middle of January; that it was working at 10 in the evening and at 5 the next morning all the stoves were out; that the fires had never gone out up to this time; that they called Mid-Continent and a man came, who said he was from there, and told witness he poured hot water on the regulator and told him the next time it froze up to do the same; that after this had been done the stoves were lighted and all burned and they had no trouble since; that about 1,200 chickens died in three weeks after the occurrence. The testimony of Mrs. Balthazor was about the same except that she saw the man pour the hot water on the regulator. She also testified they bought no propane from any other company and on January 24th the man who delivered it delivered two gallons of alcohol with it and told her husband if the alcohol was put in they would not have any worry about it freezing, and the plant had never failed to operate since that time.

The witness who sold plaintiffs' heating system testified in regard to a regulator that 'It has a diaphram spring and diaphram you can adjust that to any pressure you want it. It is standard operation, it is set on six ounces and supposed to be that way when it comes out. If not proper installation, after it is installed, it is supposed to be tested by air, which you can test that to six ounces pressure and adjust it if it isn't set when it is installed.' He further testified that he had seen a regulator stop working due to condensation and assuming that a regulator stopped working during cold weather and when hot water was poured on it, it started working again, he would say there was moisture on the diaphram which froze; that propane came from the tank as a gas.

On cross-examination he testified that possible sources of water in a propane tank would be condensation, evaporation, refrigeration or liquid in the gas; that some propane tanks were tested at the factory for possible leaks by pumping them full of water...