Essex Wire Corp. of Cal. v. Salt River Project Agr. Imp. and Power Dist.

• Decision Date: 13 March 1969
• Docket Number: No. 1,CA-CIV,1
• Citation: 9 Ariz.App. 295,451 P.2d 653
• Parties: ESSEX WIRE CORPORATION OF CALIFORNIA, a California corporation, and Essex Wire Corporation, an Indiana corporation, Appellants, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, a municipal corporation and a political subdivision of the State of Arizona, and St. Paul Fire and Marine Insurance Company, a corporation, Appellees. 473.
• Court: Arizona Court of Appeals

Page 653

451 P.2d 653

9 Ariz.App. 295

ESSEX WIRE CORPORATION OF CALIFORNIA, a California corporation, and Essex Wire Corporation, an Indiana corporation, Appellants, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, a municipal corporation and a political subdivision of the State of Arizona, and St. Paul Fire and Marine Insurance Company, a corporation, Appellees.

No. 1 CA-CIV 473.

Court of Appeals of Arizona.

March 13, 1969.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Lyons, Phoenix, for appellants.

Jennings, Strouss, Salmon & Trask, by Thomas J. Trimble, Phoenix, for appellees. HATHAWAY, Judge.

The appellee, Salt River Project Agricultural Improvement and Power District (herein referred to as plaintiff), brought suit below against appellants Essex Wire Corporation of California and Essex Wire Corporation, a Michigan ^* corporation (herein collectively referred to as defendant). Plaintiff sought damages for inspection costs and for replacement of defective electrical wire. It also sought indemnity for a judgment obtained against it in a wrongful death action. There were alternative claims, one based on breach of manufacturer's warranty and the other on negligence; both concerning allegedly defective electrical wire purchased by plaintiff from defendant.

The wire in question, described as 'weatherproof wire,' was purchased in 1954 and used by plaintiff, along with wire purchased from other suppliers, for the construction of 'service drops.' Service drops are lines of electrical wire which extend from utility poles to meters on the premises of individual customers. There was evidence that, during the year 1956, some of plaintiff's employees reported receiving electrical shocks while handling some service wire. Because of these reports, plaintiff began tests on the insulating qualities of wire purchased from its suppliers thereafter. None of these tests revealed that weatherproof wire purchased from any supplier thereafter, including defendant, was defective. No tests were conducted on service drop wire which had already been installed.

In 1960, some four years after the tests were instituted, it was reported to plaintiff that Leonard Bogan, the teenage son of one of its customers, had been electrocuted while picking oranges from a tree in the backyard of the family residence. The boy had come into contact with service drop lines while standing on a metal ladder on a wet lawn. The service drop ran to the side and perhaps above the tree when installed, but, due to subsequent growth of the tree, actually ran through the side of the tree at the time of Bogan's death.

Bogan's parents brought suit against plaintiff for wrongful death. Plaintiff cut open a section of the wire used in the Bogan service drop, revealing a yellow thread or 'marker' which ran along the aluminum wire under the neoprene covering. The marker was then traced to defendant and defendant was asked to defend in the wrongful death action. Defendant denied liability and plaintiff subsequently settled out of court with the Bogans for $35,000. Appellee St. Paul Fire and Marine Insurance Company was plaintiff's insurance carrier and is in the case by right of subrogation after having paid the bulk of this settlement.

After Bogan's death, plaintiff also proceeded to check for defective wire in other service drops which had been installed prior to 1956. Of 14,888 tested, 2,445 proved to be dangerous and were replaced. The defect was later determined to be caused by an excess of carbon black in the neoprene covering. Virtually all of this wire was identified (by the yellow marker) as wire manufactured by defendant. The replacement costs were in excess of $49,000.

The negligence claim was dropped by plaintiff prior to submission of the claims to the jury, which found for plaintiff on the issue of breach of warranty but found for defendant on the issue of indemnity for the wrongful death claim. Plaintiff then moved for judgment notwithstanding the verdict and, in the alternative, for a new trial as to the wrongful death issue only. Both of these motions were granted; the new trial order was conditioned upon reversal on appeal of the judgment notwithstanding the verdict. Rule 50(c), Rules of Civil Procedure, 16 A.R.S.

On appeal, defendant asks that we reverse the judgment notwithstanding the verdict, set aside the order for new trial, and reinstate the verdict. In the alternative, defendant raises questions for review which, if well taken, would require a new trial of the entire matter.

Also, plaintiff, prior to oral argument, moved for dismissal of the appeal based upon alleged defects in defendant's Notice of Appeal. That motion was denied with leave to reurge it in the briefs. The motion has been so raised and we consider it first.

The Notice of Appeal indicates intent to appeal from:

'* * * The verdict of the jury; the judgment entered thereon; the Denial of the defendants' Motion for New Trial; the denial of the defendants' Motion for Judgment Notwithstanding the Verdict as that portion of the verdict giving plaintiff a recovery for its claimed costs of replacing wire supplied by defendant; The granting of plaintiff's Motion for Judgment Notwithstanding the Verdict on that portion of the verdict denying plaintiff recover for the amounts paid to settle claim for the death of Leonard Lee Bogan; the court's Granting of plaintiff's Motion for New Trial in the Alternative in the event the Superior Court's granting of the Motion for Judgment Notwithstanding the Verdict by plaintiff is overruled by an appellate court.' (Emphasis supplied.)

Plaintiff-appellee points out that the right to appeal is a statutory right and that an appellate court has jurisdiction only if a notice of appeal is filed in accordance with the appropriate statute. See Donovan v. Esso Shipping Co., 259 F.2d 65 (3d Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572. Plaintiff contends that the Notice of Appeal filed by defendant in this case is defective because of (1) reference to nonappealable orders rather than judgments and (2) failure to cite the dates of judgments appealed from as provided in Rule 73(f), Ruls of Civil Procedure, 16 A.R.S.

We do not agree that the defects in the Notice of Appeal require dismissal in this case. Cases holding that citing of a nonappealable order renders the notice sufficiently defective to deprive the appellate court of jurisdiction, Arizona Corporation Commission v. Pacific Motor Trucking Company, 83 Ariz. 135, 317 P.2d 562 (1957); Associates Finance Corporation v. Scott, 3 Ariz.App. 1, 411 P.2d 174 (1966), have recently been overruled by Hanen v. Willis, 102 Ariz. 6, 423 P.2d 95 (1967). Hanen provides:

'* * * When adequate notice to appeal has been given to the other party, no mere technical error should prevent the appellate court from reaching the merits of the appeal. Clearly the error in the present case as to the date was merely a technical one, and no one was misled.' (Emphasis supplied.) 432 P.2d 98.

The case holds that citing the date of an original minute entry order, rather than the date of the final judgment, does not provide ground for dismissal where no prejudice has been shown. Rule 73(e) ¹ requires only that the Notice of Appeal 'shall designate' the judgment. Hanen makes it clear that citation of dates are not mandatory unless prejudice results. Plaintiff has not alleged prejudice. The motion to dismiss is denied.

Defendant first contends that it was error to instruct the jury on our statute on implied warranties of a manufacturer, A.R.S. § 44--215, ² without including certain defenses contained in subsections 3 and 4 of the statute. It is difficult to follow defendant's contention on this point since its argument in the brief seems to be devoted to another question--whether there was sufficient evidence at trial to warrant an instruction on implied warranty. We agree with the apparent conclusion of the trial court that there is no evidence which would support either a finding that, short of elaborate tests, plaintiff could have discovered any defects if it 'examined the goods' as stated in subsection 3, or that the wire was sold as 'a specified article under its patent or other trade name' as stated in subsection 4. We therefore find the omitted subsections inapplicable.

Assuming that defendant intended to raise the question argued rather than the question stated, we also find that there was sufficient evidence of implied warranties, and of breach of such warranties, to warrant an instruction on the matter. One of defendant's employees who testified admitted that he was aware that plaintiff was probably using the wire for service drops. The 1953 National Electrical Code requires insulation of service conductors. ³ There was also evidence that wire of the type purchased (weatherproof, type WP) normally has insulating qualities far above those of the wire in question. The instruction was proper as given.

Defendant next contends that no instruction at all should have been given on A.R.S. § 44--215 because of the provisions of A.R.S. § 44--249. ⁴ The latter section provides that, when a buyer 'knows, or ought to know' of a breach of warranty on the part of the seller, the buyer must give notice to the seller 'within a reasonable time' that he is holding the seller responsible for the breach. Failure to so act constitutes a waiver of the implied warranties. See, Dowdle v. Young, 1 Ariz.App. 255, 401 P.2d 740 (1965).

Defendant maintains that the evidence shows that plaintiff had 'actual notice' of defendant's breach of warranty when the tests were instituted on wire purchased during and after 1956. As we have stated, those tests were instituted because of reports of plaintiff's employees that electrical shocks were being received from weatherproof wire. The only testimony on this point, from plaintiff's employee Turner, is as follows:

'Q What...