Dobbin v. Pacific Coast Coal Co.

• Decision Date: 20 June 1946
• Docket Number: 29677.
• Citation: 25 Wn.2d 190,170 P.2d 642
• Parties: DOBBIN v. PACIFIC COAST COAL CO. et al.
• Court: Washington Supreme Court

170 P.2d 642

25 Wn.2d 190

DOBBIN v. PACIFIC COAST COAL CO. et al.

No. 29677.

Supreme Court of Washington

June 20, 1946

Department 2

Action by Harry J. Dobbin against the Pacific Coast Coal Company, L D. Waters and another, husband and wife, doing business as Allied Home Appliances, and O. R. Tucker and his wife to recover damages caused by a furnace which first-named defendant sold to second-named defendants who installed the furnace in a house built by last-named defendant who sold the house to plaintiff. From a judgment for plaintiff first-named defendant appeals.

Reversed and cause dismissed.

Appeal from Superior Court, Pierce County; Ernest M. Card, judge.

Graham Green, Burnett, Howe & Dunn, of Seattle, and Kenneth C. Hawkins, of Yokima, for appellant.

Stuart H. Elliott, of Kelso, for respondent.

ROBINSON Justice.

The substance of the complaint in this cause is as follows:

In July 1943, the plaintiff, Dobbin, purchased a newly constructed dwelling house in Tacoma from O. R. Tucker, a contractor and builder. The heating unit, already installed, was of a new type called a 'chimney furnace.' It is alleged that, when the plaintiff put it in operation in the fall, it not only failed to adequately heat the premises, but also deposited a film of soot on the interior walls and the furniture and fixtures in the various rooms. It was also alleged that the furnace was manufactured by the Pacific Coast Coal Company; that L. D. Waters and Meda B. Waters, doing business in Tacoma as Allied Homes Appliances, were that company's local representatives; and that, as such, they sold the furnace to Tucker and installed it in his house. It was further alleged that the furnace would have to be removed, and some other heating unit installed, at an estimated cost of $1,450, and it was stated that, since all of the parties, above named, had denied liability, all were named defendants, and judgment was prayed for against each and all.

The complaint contained no allegation of fraud, nor any claim of breach of express warranty, but is clearly grounded upon a breach of an implied warranty of fitness. At the trial, certain facts were established by evidence which was unrebutted and undisputed. These may be summarized as follows:

The furnace which consists of certain parts and castings, to be installed, as directed, in a chimney to be built by the owner or builder of the house, was manufactured at Dowagiac, Michigan, by the Round Oak Company which, for many years, has built and marketed various types of furnaces and heating equipment. The parts and castings were put in crates at Dowagiac, Michigan, and shipped to the Pacific Coast Coal Company, a distributor. Waters and wife were not, as alleged in the complaint, 'local representatives' of the Pacific Coast Coal Company, nor were they its agents in any sense whatever. They purchased the crated furnaces from the Pacific Coast Coal Company for cash, as any dealer in household appliances might do, and installed them in the houses of customers, in the same manner as they sold and installed other household appliances. They had no dealings with the plaintiff Dobbin. They sold the furnace to Tucker, and when Dobbin purchased the house from Tucker, he acquired it as a part of the realty.

There is also undisputed evidence, which will be more specifically referred to later in this opinion, to the effect that this was about the only kind of house-heating furnace readily procurable at the time it was installed, due to war directives regulating the conservation of oil and metals.

There is further uncontradicted evidence that, Before this type of furnace was put on the market, its design was inspected and tested by the Federal Bureau of Standards, and, by that bureau and by the engineers of the Federal Housing Authority, approved for installation in dwelling houses to be financed by FHA loans. Incidentally, Dobbin financed his purchase of the house through an FHA loan.

Although there is a very substantial conflict in the evidence, we think it preponderates in favor of the trial court's findings that, in this particular instance at least, the chimney furnace did not furnish adequate heat, that the walls of the room were 'smoked up,' and that soot was deposited in the interior of the premises.

There was some evidence, given by the plaintiff himself and supported by his wife and another of his witnesses, to the effect that there was something inadequate in the installation of the furnace, particularly in the neighborhood of the circulating fan which operated at the top of the chimney. However, we agree with the trial court that it was not sufficient to warrant a finding of faulty installation as against Waters and wife.

The trial of this case began on November 16, 1944. Due to an unavoidable continuance, evidence was taken but one day at that time, and the trial was renewed on the 20th of December, and continued for three days. When the parties rested, the trial judge announced that he would, in due course, render a decision in writing, and a decision was so rendered on January 9, 1945, holding that the plaintiff could not recover against any of the defendants. Subsequently, the court granted the plaintiff a reargument, and, about seven weeks after the filing of the first opinion, filed another memorandum decision, holding the Pacific Coast Coal Company liable on the ground of fraud.

The question to be decided here can best be thrown into relief by comparing the two opinions. In both opinions, it is held that the furnace did not adequately heat the house and deposited soot in the interior. In both, it was held that Tucker could not be held liable, since he merely sold the plaintiff a house with a furnace in it without making any representations whatever about the furnace. It was also pointed out, in both opinions, that defendants Waters and wife, who sold the furnace to Tucker and installed it in Tucker's house, never met the plaintiff until long after the transaction. Obviously, they could not be held liable on any theory of warranty, express or implied. In approaching the question of the liability of the Pacific Coast Coal Company, the court used the following language in each of the opinions: 'The furnace equipment was sold by the Pacific Coast Coal Company to Waters for cash. It had no dealings with Dobbins, and the general rule is that a manufacturer is not liable to any person other than his immediate vendee, with these exceptions: '1. Where the thing causing the injury is of a noxious or dangerous [character]; 2. Where the defendant has been guilty of fraud or deceit in passing off the article; 3. Where the defendant has been negligent in some respect with reference to the sale or construction of a thing not imminently dangerous.' Bock v. Truck & Tractor, Inc., 18 Wash.2d [458, at] page 465 .'

However, there is a great difference between the two opinions in the language following that statement of the law. In the first opinion, it is said:

'The present case does not fall within any of these exceptions; therefore neither the manufacturer or its agent is liable.

'The Court has considered all authorities cited by counsel and others relating to implied warranties and can discover no law granting relief under similar circumstances, where the personal property sold has been incorporated into a building and transferred in its new character of real estate.

'Plaintiff cannot recover from any defendant and the defendants may take judgment and costs.'

In the second memorandum opinion, it is said:

'The present case falls within exception 2--that of misrepresentation in passing off the article. The furnace in question failed because, through faulty design, it would not heat the house to normal temperature and because its operation caused damage to the room and walls.

'Plaintiff's Exhibit 'A' is a circular put out by the Pacific Coast Coal Company to assist in sales. This circular is full of representations such as: 'New heating efficiency,' 'amazing furnace,' 'less fuel,' 'ideal for houses,' 'acceptable to Federal Housing Agencies,' and many others to the general effect that the furnace would be most satisfactory for small houses. Many of these representations were carried into the advertisement of the Allied Home Appliance Company, Plaintiff's Exhibit 'D'. Such circulars ar admissible against the manufacturer. Baxter v. Ford Motor Company, 168 Wash. [456, 12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521.]

'Since these representations proved untrue and were the cause of damage to plaintiff, the courts will grant relief against the manufacturer. Plaintiff's damage is fixed at $650.00.'

The difference in result presumably flows from the change of the court's point of view, indicated in the following quotations from the two opinions. In the first opinion, after finding that the furnace in plaintiff's house did not furnish adequate heat and deposited soot throughout the premises, the court said: 'It is clear that the furnace does not work satisfactorily either through faulty design or through improper installation. The Court is unable to determine which is the cause.' (Italics ours.)

In the second opinion, the court, having made the same findings as to the insufficiency of the furnace, went on to say: 'While the Court is not an expert on furnaces, it concludes that the deficiencies above indicated must be [due] to faulty design. The furnace does not work right for some reason and the Court would not expect any purchaser of a home to be satisfied with its performance.'

After denying the post trial motions, the court signed findings to the effect that the furnace was unsuited for the purposes of heating the premises and did not work satisfactorily, in that it did not furnish...