Becker Pretzel Bakeries, Inc. v. Universal Oven Company

• Decision Date: 15 February 1968
• Docket Number: Civ. No. 16554.
• Citation: 279 F. Supp. 893
• Parties: BECKER PRETZEL BAKERIES, INC., a Maryland corporation, v. UNIVERSAL OVEN COMPANY, Incorporated, a New York corporation.
• Court: U.S. District Court — District of Maryland

279 F. Supp. 893

BECKER PRETZEL BAKERIES, INC., a Maryland corporation, v. UNIVERSAL OVEN COMPANY, Incorporated, a New York corporation.

Civ. No. 16554.

United States District Court D. Maryland.

February 15, 1968.

COPYRIGHT MATERIAL OMITTED

Franklin Goldstein and Burke, Gerber & Wilen, Baltimore, Md., for plaintiff.

Herbert F. Murray and Smith, Somerville & Case, Baltimore, Md., for defendant.

THOMSEN, Chief Judge.

This is an action by the purchaser of a large pretzel oven, Becker Pretzel Bakeries, Inc. (Becker), against the manufacturer-seller of the oven, Universal Oven Company, Inc. (Universal), to recover damages caused by a fire in the oven some months after it had been installed. At the trial before a jury plaintiff offered evidence that the fire was caused by slippage of the meshes in the oven; that there had been excessive slippage in the oven from the time it was installed and that Universal had made some ineffective efforts to correct the alleged defect; and that Universal's failure to include clean-out doors (sometimes called fire doors), or other adequate means to prevent or reduce fire damage, increased the damage caused by the fire.

The complaint alleged breach of express warranty, breach of implied warranty, and negligence. The court ruled as a matter of law that Becker was not entitled to recover for breach of implied warranty, but allowed the jury to consider the claims based upon alleged breach of express warranty and negligence. The court submitted seven questions to the jury, which were answered as follows:

"(1) Was the fire in the oven caused by any defect in the oven? Yes.

"(2) If the jury answers question No. 1 `yes', did the claim involved in this suit arise by reason of faulty operation of the oven by plaintiff? No.

"(3) Was the fire in the oven caused by any negligence on the part of defendant? Yes.

"(4) Was the fire in the oven caused or contributed to by any negligence on the part of plaintiff? No.

"(5) At what sum does the jury fix the damages to the oven and its contents caused by the fire? $5,782.39.

"(6) Did plaintiff sustain any additional production costs due to the fire? Yes. If the answer is `yes', what was the amount of such additional production costs? $3,432.48.

"(7) Did plaintiff sustain any loss of profits due to the fire? No. If the answer is `yes', what was the amount of such loss of profits? ______."

Plaintiff has moved for judgment on the special verdicts. Defendant has moved for judgment n. o. v. or, in the alternative, for a new trial.

Facts

There was evidence legally sufficient to prove the following facts.

Becker, a Baltimore bakery, entered into discussions with Universal, a manufacturer of large baking ovens, for the purchase of a pretzel oven. Becker was represented in these discussions by its president, a member of the bar; Universal was represented by its president and by Irwin Elliott, a recognized expert in the design of ovens, then employed by Universal. After specifications were submitted to Becker and accepted, an "Order and Conditional Sale Contract", prepared by Universal, was signed by Becker and became effective when approved by Universal at Westbury, New York, on March 29, 1963.

The pertinent parts of the contract are as follows:

"One . . . No. . . . Universal . . . 90' Pretzel Oven with wire mesh hearth and double pass drying kiln in accordance with specifications and terms as per our proposal dated February 8, 1963, FOB Westbury, N. Y., Supervision Only—customer to supply necessary assisting labor, all State, local and Federal taxes, if applicable, will be additional. * *

"* * *

"Total, $72,925.00¹

"* * *

"2. This contract, including the terms and conditions on the reverse side hereof, constitutes the entire agreement between the parties and no representative of the seller has power to alter the provisions hereof in any respect.

"3. This contract shall become binding upon the Seller when approved by one of its duly authorized officers at its principal office in New York, N. Y., or by one of its duly appointed credit managers; no deposit of check or money on account of this Order in the Seller's bank shall be construed as an acceptance until this Order is formally accepted by the Seller, as aforesaid."

The contract provided that it was subject to various terms and conditions, printed on the reverse side of the contract, of which the following are material in this case:

"3. The Buyer assumes the risk of injury or destruction from any cause whatsoever to this Property after delivery and also any damage by this Property to persons or property, and no such injury, damage or destruction shall excuse payments or other liabilities hereunder.

"4. The waiver by the Seller of one or more breaches in the terms of this Contract shall not constitute waiver of any other breaches.

"5. Guarantee: The Seller warrants this Property to be free from defects but the Seller shall not be liable for a breach of this warranty if any claim arises by reason of faulty operation of this Property by the Buyer or unless notice of breach of such warranty is mailed by registered mail to the Seller within five days of such breach. The liability of the Seller, in any event, shall be limited to exchanging any part of this Property, without charge, F.O.B. New York for a period of one year from date of shipment if after receipt and inspection at the Seller's factory such part proves to be defective, provided that said defective condition was not caused by reason of faulty operation of this Property by the Buyer and provided further that the payments have been made by the Buyer as agreed, and in no event shall any claims for consequential damages be made. There are no implied warranties.

"11. The responsibility of UNIVERSAL OVEN COMPANY, INC. for materials or services obtained by Buyer for use in connection with this Property is limited to written authorizations from its home office.

"16. There are no conditions, representations or warranties, verbal or otherwise except as herein stated. This contract cannot be modified except by further written agreement."

In May and June of 1963, Universal shipped all of the parts of the oven to Becker's plant for assembly. Universal's installation supervisor stayed in Baltimore during the course of the three-month installation. At the completion of construction the oven was fired successfully, at first without product in it, later with product in it.

After Universal's installation supervisor left Baltimore in August of 1963, Becker began having trouble with the meshes in the oven, which were frequently slipping because of improper tension. The "take-up" devices on the oven were insufficient to stop the slippage. Becker notified Universal's designer of the slippage, and in October or November 1963, Universal's installation supervisor was sent back to Baltimore. He cut pieces out of the meshes on all three sections of the oven—the baking chamber at the top and two drying kilns below.

Shortly after the supervisor returned to New York, the meshes began slipping again. Becker informed Universal's president and Elliott, its designer, of the slippage. Elliott visited Becker's plant, observed the slippage and stated that he would "look into it". At no time before this suit was filed did anyone from Universal complain to Becker about the operation or maintenance of the oven by Becker's employees.

Before signing the Order and Conditional Sale Contract, Becker's president and plant superintendent had discussed with Universal's designer the advisability of cutting doors, known as "cleanout" or "fire" doors into the oven, so that if a fire occurred the fire could be reached quickly and the burning product removed from the oven. However, the Order and Conditional Sale Contract contained no provision for such doors. When Universal's installation supervisor returned in October or November, he cut, at the request of Becker's plant superintendent, one or more doors into the baking chamber. No such doors were cut into the two drying kilns below. Subsequently, Universal's designer, while inspecting the oven, sent a Becker employee to a junk yard to try to obtain doors to be used when the openings were cut in. The employee could not find suitable doors at the junk yard, and the openings were never cut.

On May 15, 1964, the mesh in the bottom drying kiln stopped and the Becker employees were unable to get it started. Pretzels caught fire in the center of the kiln. The Fire Department was called and inserted high pressure hoses at one end of the kiln to put out the fire. Substantial damage was done to the oven and its contents, and additional production costs were incurred by Becker as a result. The evidence shows that the damage was greatly increased by the failure to provide fire doors in the kiln compartments.

Universal was immediately notified of the fire and within a few days sent its installation supervisor to Baltimore to supervise the repair of the oven. After the oven was back in operation, another Universal employee came to the Becker plant to try to alleviate the slippage. That employee lagged the drive drum on the bottom kiln and the mesh stopped slipping.

Discussion

The evidence was legally sufficient to prove that the fire was caused by a defect in the oven, i. e. a design and construction which caused excessive slipping of the meshes. The evidence also justified the finding of the jury that the fire was caused by negligence on the part of Universal. Universal argues that Becker did not produce any expert testimony to prove that the oven failed to comply with recognized standards in the industry. Becker did produce its plant superintendent, who has worked with other ovens in the Becker plant and has seen fires in those ovens. He testified to his experience with slippage on the other ovens and the necessity for and utilization of fire doors, and stated that the slippage in the oven in question was excessive. This was competent...