Cadillac Corp. v. Moore

• Court: Mississippi Supreme Court
• Writing for the Court: PATTERSON; GILLESPIE
• Citation: Cadillac Corp. v. Moore, 320 So.2d 361 (Miss. 1975)
• Decision Date: 18 August 1975
• Docket Number: No. 48149,48149
• Parties: CADILLAC CORPORATION, Defendant-Appellant, v. C. R. MOORE, Plaintiff-Appellee.

Page 361

320 So.2d 361

CADILLAC CORPORATION, Defendant-Appellant, v. C. R. MOORE, Plaintiff-Appellee.

No. 48149.

Supreme Court of Mississippi.

Aug. 18, 1975.

Goldman & Goldman, Thomas W. Goldman, Jr., Dennis Goldman, Meridian, Miss., for defendant-appellant.

Laurel G. Weir, Philadelphia, Barnett & Brooks, Carthage, for plaintiff-appellee.

Before PATTERSON, INZER and WALKER, JJ.

PATTERSON, Justice.

Cadillac Corporation appeals from a judgment of $40,000 obtained against it by C. R. Moore in the Circuit Court of Leake County. The award to C. R. Moore was for injuries to his person and property caused by an explosion in the mobile home he had purchased from Cadillac Corporation. The declaration sought compensation through strict liability in tort or common law negligence. We affirm with suggestion of remittitur.

On September 17, 1970, C. R. Moore purchased a mobile home from Cadillac Corporation, a domestic corporation engaged in the manufacture and sale of such items. Weber Pharis, president of Cadillac Corporation, acted as the salesman of this unit. The home contained a new Duo-Therm heater installed by Cadillac which had purchased it from a reliable furnace manufacturer.

After sale, Cadillac transported the home from Meridian to Leake County and placed it upon the plaintiff's house site. Jimmy Sikes, an employee of Hydratane Gas Company, connected the trailer's DuoTherm gas heater to its source of fuel, a butane tank located on the premises. After this, Sikes ignited the pilot light and burner. He then advised the plaintiff, who had requested him to make the gas connections, that the heater was not functioning properly because the flame of the burner was too high and the plaintiff should get someone from the seller's concern to check it.

The uncontradicted testimony discloses that on numerous occasions the plaintiff and his wife called the Cadillac Corporation and complained to Pharis that the heater was malfunctioning and importuned him to correct it. Finally, when Pharis would no longer answer their calls, they drove to his office in Meridian and personally advised him the heater did not function properly, relating that the blower would first come on and when the burner ignited, there would be a blaze and rumble of such intensity that it vibrated the whole mobile home.

Shortly thereafter, apparently in response to the last importuning, a serviceman by the name of Carmichael came to the home, adjusted the heater thermostat on the wall and advised the plaintiff the heater was functioning properly, to use it. The plaintiff's wife testified that subsequent to Carmichael's service call the heater continued to malfunction. She repeatedly informed Cadillac Corporation of this trouble and Pharis assured her the heater was safe, to go ahead and use it.

The heater was used in the condition described for the remainder of the winter and early spring of 1972 when, with the coming of warm weather, the pilot light was disengaged.

On October 17, 1972, an employee of Hydratane Gas Company reignited the pilot light at the request of plaintiff's wife. The employee stated the burner did not come on at that time because the weather was too warm for the thermostatic control to activate it. The following day the heater exploded. The explosion and following fire destroyed the mobile home, an adjoining shed and their contents. The plaintiff was injured and escaped the home by wrapping himself in a mattress to avoid the flames in making his exit.

There is no direct evidence as to the cause of the explosion. The testimony adduced by the plaintiff in establishing his case by circumstantial evidence follows:

1. There was no other gas appliance in the home.

2. The heater was constructed to use either natural or LP (liquefied petroleum) gas.

3. Its proper function was dependent upon jets appropriate for the type of fuel consumed.

4. The heater was found after the explosion literally blown 'inside out.'

Jimmy Sikes, engaged in the gas business and who the trial court concluded was an expert, testified that the jets were too large for the use of propane gas and in his opinion this probably caused the explosion. After the testimony of several intervening witnesses, he was recalled by the plaintiff, and after considerable difficulty by plaintiff's attorney in framing a hypothetical question, Sikes again gave his opinion concerning the explosion:

Q. Answer the question: have I gone over all you'd need to know in order to form an opinion as to what caused the explosion?

A. Yes, sir, I could give an opinion, my opinion on it.

Q. All right, now what would be your opinion?

A. Well, in my opinion with the furnace doing as it was, more than likely from the extreme heat from the burner burning too high you caused the control of your furnace to malfunction, opening, up, shoot too much gas and too much pressure through whenever it came on; other words, it just let it open up-your thermostat woulda had no control over it.

Cadillac Corporation, the only defendant, disclaimed liability by denying there was any defect in the trailer home it had manufactured and by maintaining it had properly installed the heater. It denied liability by way of defect in the heater, if any there was, since the heater was manufactured by the Coleman Company, a reliable manufacturer, and merely purchased by it for installation.

Appellant denied any negligence arising from its advising the purchasers that the heater was functioning properly and to go ahead and use it, again contending that the responsibility arising from the heater was that of the manufacturer, not a party to the suit, rather than the defendant who installed it.

In support of the last premise Cadillac maintains through the testimony of Elmer Sharp, its manager, that when the home was delivered to the purchaser, there was attached to the heater a yellow tag advising 'if anything was wrong with it go get in touch with Mr. Harold Carmichael in Meridian and showed him his phone number down at the bottom of the yellow tag.' Sharp, the only defense witness, also testified that he did not know who paid Carmichael for his visit to plaintiff's home to repair the heater.

The issue, according to Cadillac, is whether it exercised ordinary care in making an inspection of the furnace and in making repairs and advising the purchaser of its safety for use. It insists that a decision should rest on '(1) the relationship that existed between the appellant, as installer of the furnace, Duo-Therm, as manufacturer of the furnace, and Harold Carmichael, Inc., the company performing service work for the manufacturer and in particular, work on the furnace in question, along with (2) the specific actions taken by appellant.' From these premises the appellant first argues that products liability, strict liability in tort, does not apply in this case. We agree, if for no other reason the plaintiff did not obtain any instruction under this theory.

The only instructions on strict liability submitted to the jury were those requested by the defendant which correctly set forth, as we view them, its theory of defense to strict liability in tort. While there can be no doubt that State Stove Manufacturing Co. v. Hodges, 189 So.2d 113 (Miss.1966), holds that a suit for strict liability in tort is not exclusive and permits liability upon the alternative ground of negligence, where it can be proved; nevertheless, the first alternative was not pursued nor submitted to the jury on a strict liability theory, but rather on one of negligence. Compare Hamilton Fixture Co., Inc. v. Anderson, 285 So.2d 744 (Miss.1973). The issue of strict liability, though argued by the appellant, is not before us.

The assertions for reversal under (2), the specific actions taken by the appellant, are that the verdict is against the overwhelming weight of the evidence. This point necessitates a weighing of the evidence. The record establishes without contradiction that the defendant sold the mobile home to the plaintiff for a considerable sum and delivered it to his house site. Assuming, as we do, there was no defect in the manufacture of the heater, there nevertheless remains the testimony that the plaintiff advised the president of the defendant corporation shortly after his purchase that the heating unit was malfunctioning, detailing its aberrations, and 'he said there was nothing wrong with the trailer, nothing wrong with the furnace and he turned around and walked away and wouldn't talk to me.'

The evidence is also uncontradicted that other calls were made by the plaintiff to Pharis concerning the heater and that Harold Carmichael appeared thereafter to repair it and that he was not contacted or compensated for this service by the plaintiff.

These circumstances permit, in our opinion, only one conclusion, and that is Carmichael made the service call at the direction of the defendant and was therefore its servant and agent on the occasion. Moreover, after Carmichael's repairs,...