Brewer v. Oriard Powder Co.

• Decision Date: 06 May 1965
• Docket Number: No. 37569,37569
• Citation: 66 Wn.2d 187,401 P.2d 844
• Parties: Edward BREWER and Donald Bashaw, Appellants, v. ORIARD POWDER COMPANY, a Washington corporation, and Atlas Chemical Industries, Inc., a Delaware corporation, Respondents.
• Court: Washington Supreme Court

Page 187

66 Wn.2d 187

401 P.2d 844

Edward BREWER and Donald Bashaw, Appellants, v. ORIARD POWDER COMPANY, a Washington corporation, and Atlas

Chemical Industries, Inc., a Delaware corporation,

Respondents.

No. 37569.

Supreme Court of Washington, Department 1.

May 6, 1965.

John R. Lewis, Moses Lake, Gibson & Palmer, Quincy, Riner E. Deglow, Spokane, for appellants.

Bogle, Bogle & Gates, Ronald E. McKinstry, Peter D. Byrnes, Gerhardt Morrison, Seattle, Florer, Gerraughty & George, Clarence M. George, Spokane, for respondents.

RYAN, Judge. ¹

This is an action to recover damages for personal injuries suffered by plaintiffs (appellants) while employed by Murphy Brothers, who had contracted for construction work on a United States missile site. The injuries, which were very serious, were caused by a premature explosion of dynamite which had been issued to them by their employer to be used in blasting holes for the construction. The plaintiffs' employer had purchased the dynamite from Oriard Powder Company (hereinafter referred to as Oriard). The dynamite had been manufactured by Atlas Chemical Industries (hereinafter referred to as Atlas). The dynamite and essential detonating components were sold and delivered by Atlas to Oriard and, in turn, to Murphy Brothers in the original containers.

The plaintiffs alleged that Atlas had manufactured and sold dangerous, unfit and defective dynamite explosives, primers, blasting caps, related components and accessories which were unfit and dangerous for normal use. They further alleged that Atlas had failed to adequately test or inspect these explosives prior to sale and had knowledge that they were defective and dangerous.

The plaintiffs' complaint stated that Oriard was engaged in the sale of these unfit, defective and dangerous products and that it 'had notice of circumstances of the dangers relating to said products and their use by the public and was negligent in failing to test and experiment with said explosives before its products were sold to the public.'

Their third cause of action was that the defendants breached their express and implied warranties of fitness in the manufacture, distribution and sale of the products involved.

In a fourth cause of action, the plaintiffs alleged that defendants are absolutely liable to plaintiffs for the injuries and damages sustained.

The defendants' answers to this complaint contain general denials and allegations of contributory negligence and assumption of risk. The defendant Oriard asks in the event the plaintiffs recover judgment against Oriard that it, in turn, be awarded judgment against Atlas.

The trial court declined to grant Oriard's motion for summary judgment but dismissed plaintiffs' complaint with prejudice and awarded judgment in favor of the defendants at the conclusion of the opening statement of counsel for the plaintiffs. This is an appeal from the judgment of dismissal.

Counsel for the appellants in the opening statement admitted that appellants were not the purchasers of the dynamite and that there was no evidence of a specific act of negligence. In the opening statement, counsel said: '* * * an implied breach of warranty actually is the gist of this action.'

The question to be resolved by us in this case is: Is the theory of breach of implied warranty of fitness applicable under the facts and circumstances of this case?

The trial judge was reluctant to grant respondents' motion for dismissal but felt compelled to do so because of the case of Kasey v. Suburban Gas Heat of Kennewick, Inc., 60 Wash.2d 468, 374 P.2d 549. In that case, the plaintiff in whose building an explosion occurred brought suit on the theories of negligence and breach of implied warranty of fitness for the purpose intended. Plaintiff had purchased propane gas from the defendant. There was evidence from which the jury found that this gas contained an excessive amount of water causing a malfunction of the controls in plaintiff's floor furnace. There was further evidence of improper workmanship by one of defendant's employees on the pilot light and generator of the furnace. The other plaintiffs owned a business situated some distance away but the explosion caused them serious damage also.

There was clearly a privity of contract between the defendant and the first plaintiff mentioned. The other plaintiffs, however, purchased nothing from the defendant, so there was no privity of contract as far as they were concerned. The jury, in answering interrogatories, found that the negligence of the defendant was a proximate cause of the explosion. This court stated that the finding of negligence was sufficient to dispose of the case and judgment for the plaintiffs was sustained. However, we went beyond this and discussed the theory of implied warranty of fitness, stating that this theory was inapplicable to the plaintiffs who had not purchased anything and, although the trial court committed error in instructing on that theory, a new trial was not required because of the finding of negligence.

It should be pointed out that, unlike the appellants in the case at bar, the second plaintiffs in the Kasey case were entirely outside of the chain of distribution of the product causing the injury. In the case with which we are now concerned, the appellants, although not 'purchasers,' were 'users' or 'consumers.'

The right of an injured person to recover from a manufacturer or retailer for breach of implied warranty in the absence of privity of contract presents what might well be described as the Sargasso Sea of the law. It is filled with entangling theories, rules and doctrines from which courts throughout the United States and England have been attempting to extricate themselves for decades. Since 1842, when the Court of Exchequer decided the case of Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402, the law has been constantly developing and growing as it keeps pace with changing social philosophy and expanding methods of manufacturing and distribution. There is a certain and steady trend in the direction of fixing greater responsibility in manufacturers and sellers. Prosser on Torts (3rd ed.) chapter 19, p. 658, et seq.

This court was in the vanguard of the movement to solve these vexing problems when we decided the case of Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633. In that case, it was held that a manufacturer may be liable for damages, irrespective of privity of contract, in the manufacture and sale of food products. The Mazetti case extended that liability to a restaurateur who had purchased from a retail grocer contaminated and impure canned meat manufactured by the defendant. This court discussed the various theories upon which other courts had reached similar conclusions and stated as a basis of the decision, p. 630, 135 P. p. 636:

'Our holding is that, in the absence of an express warranty of quality, a manufacturer of food products under modern conditions impliedly warrants his goods when dispensed in original packages, and that such warranty is available to all who may be damaged by reason of their use in the legitimate channels of trade.'

It has been well established by this court that privity of contract is not required in order that there be an implied warranty of fitness where the article involved is food, clothing, drugs, or cosmetics. See Nelson v. West Coast Dairy Co., 5 Wash.2d 284, 105 P.2d 76, 130 A.L.R. 606; Geisness v. Scow Bay Packing Co., 16 Wash.2d 1, 132 P.2d 740; Ringstad v. I. Magnin & Co., 39 Wash.2d 923, 239 P.2d 848; Martin v. J. C. Penney Co., 50 Wash.2d 560, 313 P.2d 689, 80 A.L.R.2d 697; LaHue v. Coca Cola...