Callahan v. Keystone Fireworks Mfg. Co.

• Decision Date: 21 December 1967
• Docket Number: No. 39273,39273
• Citation: 72 Wn.2d 823,435 P.2d 626
• Court: Washington Supreme Court
• Parties: Andrew CALLAHAN, Respondent, v. KEYSTONE FIREWORKS MANUFACTURING COMPANY, John Greenlee and Jane Doe Greenlee, his wife, Appellants.

Page 823

72 Wn.2d 823

435 P.2d 626

Andrew CALLAHAN, Respondent, v. KEYSTONE FIREWORKS MANUFACTURING COMPANY, John Greenlee and Jane Doe Greenlee, his wife, Appellants.

No. 39273.

Supreme Court of Washington, Department 2.

Dec. 21, 1967.

Lycette, Diamond & Sylvester, John P. Lycette, Jr., Seattle, for appellants.

Turner, Stoeve & Layman, John G. Layman, Spokane, Craig C. Kosonen, Coeur d'Alene, Idaho, for respondent.

WARD, Judge. ^*

The plaintiff, Andrew Callahan, a resident of Coeur d'Alene, Idaho, was seriously injured as a result of the premature explosion of an aerial bomb during a fireworks display which the Coeur d'Alene Junior Chamber of Commerce was firing from a barge anchored in Lake Coeur d'Alene on July 4, 1962. The plaintiff was one of a 12-man team which was putting on the fireworks display as a part of that organization's community service activities.

The aerial bombs were fired from a battery of 11 metal mortar tubes closed at the bottom and placed in wooden boxes filled with sand. The bombs were so constructed that on ignition of a long firing fuse, the fire was led to a small propellant charge in the bottom of the bomb. The firing fuse also led to a time fuse in the top of the bomb which was intended to delay setting off a heavy explosive charge until the bomb had been propelled into the air.

The firing sequence of the fuses in the bomb which injured plaintiff did not, however, operate as intended. Instead, the heavy explosive charge in the bomb exploded while the bomb was still in the mortar tube, shattering the metal tube into fragments and inflicting injury on all 12 men on the firing team.

The plaintiff brought action against defendant John Greenlee, a licensed pyrotechnician and independent foreworks distributor from whom the Junior Chamber of Commerce had purchased the foreworks. Greenlee did business as Greenlee Fireworks Company near Spokane, Washington, which is about 30 miles from Coeur d'Alene. Plaintiff also made Keystone Fireworks Manufacturing Company (which will be referred to as Keystone) a party defendant. Keystone operates a manufacturing establishment for the production of fireworks at Dunbar, Pennsylvania, and another in the state of Maryland. There was evidence from which the jury could find that the bomb which prematurely exploded was manufactured by Keystone, shipped by truck to Greenlee in Spokane, and included in the fireworks resold by Greenlee to the Junior Chamber of Commerce for its July 4, 1962, fireworks display.

The jury's verdict was in favor of Greenlee, but against Keystone in the sum of $35,000. Keystone's appeal from the judgment entered on the verdict presents three issues for determination: (1) Did the court err in instructing the jury on Keystone's duty to warn; (2) was the evidence sufficient to make a jury case on either an implied warranty or negligence theory; (3) should defendant's challenge to the Washington court's jurisdiction over Keystone have been sustained.

The court gave instruction No. 15 to which defendant excepted. It reads:

You are instructed that one who manufactures or sells an article which he knows or should know is likely to be dangerous when used in the manner or for the purpose for which it was designed has a duty to use reasonable care to give warning of such danger to those whom he should expect to use the article if he has reason to believe that they will not discover the danger.

Keystone does not challenge the instruction as an incorrect statement of the law, but argues that under both the pleadings and the facts of the case, the instruction should not have been given because it was inapplicable.

The plaintiff pleaded negligence, generally, and also pleaded failure to warn as one of the specific charges of negligence. The defendant, however, claims that the plaintiff failed to allege in his complaint that Keystone had a duty to warn.

The word 'negligence' itself connotes failure of duty to exercise due care. It is not necessary to specifically allege that the duty to exercise due care included the duty to warn. The claim of negligence, generally, and failure to warn, specifically, were sufficient under Rule of Pleading, Practice and Procedure 8, RCW vol. O, to give the defendant notice that all elements of the claim might be explored during the trial.

The court properly gave instruction No. 15 because there was evidence from which the jury could find that Keystone was aware of the danger inherent in its bombs, but gave neither warning of the danger of premature explosion nor instruction on the proper method of handling and firing the bombs purchased through its distributor, Greenlee, so as to minimize danger of injury.

Ernest DeBlasio, co-owner of Keystone testified that a defect in the fuse could result in a premature explosion of the bomb. He further testified Q. Does your factory include any instructions or warning material with the salutes when they are packed? A. You mean instructions with it? Q. Yes. A. Well, we put the label on each shell but when we send them to a jobber--to a bona fide jobber, we don't--just a mark over there '18 inch salute.' Q. So then the salutes that were shipped to John Greenlee in 1962 did not have any warning label or instructions on them? A. No. Just had '18 inch salutes.'

On all direct factory sales, which did not pass through a distributor, Keystone included proper warnings and instructions with each shipment. Why such warnings were not given when its products were sold through distributors such as Greenlee, was not satisfactorily explained. The jury might well conclude that if Keystone found that warning and instructions were necessary on direct factory sales, they were equally necessary on fireworks passing to the user through its distributors.

The general rule is stated in 76 A.L.R.2d at 16 as follows:

The rule as to when a manufacturer or seller must warn (or, stated differently, when he will be held negligent if he fails to warn) is this: a manufacturer or seller of a product which, to his actual or constructive knowledge, involves danger to users has a duty to give warning of such danger.

Keystone further claims that instruction No. 15 should not have been given because the danger was obvious to the plaintiff and the manufacturer has no duty to worn of a danger which is obvious and known. Keystone's position would be sound if there was no issue of fact with respect to the obviousness of the danger. Dalton v. Pioneer Sand & Gravel Co., 37 Wash.2d 946, 227 P.2d 173 (1951). However, in this case, under the evidence, it would have been error if the court had determined as a matter of law that the plaintiff was foreclosed from recovery because he knew or should have known that Keystone's bombs were subject to premature explosions while in the mortars. The jury could have found that the explosion resulted from a defect in the fuses or fuse connections concealed by the outer wrappings enclosing the bomb and its interior fuses, and that there was no danger of a premature explosion except when a bomb was manufactured with such a concealed defect. There was evidence from which the jury could have found that Keystone was aware of such danger and that plaintiff was not.

Keystone claims error because the court failed to either dismiss the plaintiff's case at the conclusion of the testimony, grant a new trial or grant judgment notwithstanding the verdict. In its supporting argument defendant claims that plaintiff did not prove any defect in the aerial bomb which caused his injuries. The bomb was completely destroyed in the explosion, so, obviously, a defect in manufacturing could be proven only by circumstantial evidence. To prove circumstantially that the bomb was defective when it left the factory, the plaintiff produced all witnesses through whose hands the bomb and passed with the exception of the truck driver selected by Keystone to transport the fireworks from the Keystone factory to Greenlee's warehouse in Spokane. These witnesses presented uncontradicted evidence that the bombs suffered no injury or damage from the time of receipt by Greenlee until the explosion occurred, that the bomb which prematurely exploded was in exactly the same condition when fired on the barge in Lake Coeur d'Alene as when received by Greenlee, and that when the bombs were unloaded in Spokane they appeared to be undamaged.

If the fuse was damaged while enroute from the factory to Greenlee, as a result of improper crating and packing, this would be a defect for which the defendant Keystone would be liable. This was one of the alternative charges of negligence made by the plaintiff against Keystone and found some evidentiary support in a letter written by Keystone to Greenlee stating:

(O)n the 18 inch salutes, the only thing I know, we must pack these more carefully next year. Evidently the timer is being bumped hard or something in transportation. * * * Yes, must pack these very carefully next year. * * * This letter was written in answer to Greenlee's letter advising Keystone of the premature explosion.

Ernest DeBlasio, a co-owner of Keystone and supervisor of its manufacturing, testifying as an expert for defendant, could find only two possible causes of the premature explosion; either 'something defective in the fuse' or the placing of the bomb in the mortar tube upside down.

The defendant did not present any evidence to support his alternative hypothesis that the explosion was caused by firing the bomb upside down. The plaintiff, however, presented evidence sufficient to permit the jury to reject this hypothesis. Members of the firing team on the barge testified that they observed the loading of the bomb which exploded and that it was placed in the mortar right side up.

Where there are no eyewitnesses to establish the proximate cause of an accident, and two alternative hypotheses are presented, under only one of which the defendant could be held liable, this court has applied...