Freeman v. Navarre

• Decision Date: 10 November 1955
• Docket Number: No. 32888
• Citation: Freeman v. Navarre, 289 P.2d 1015, 47 Wn.2d 760 (Wash. 1955)
• Court: Washington Supreme Court
• Parties: F. Kemper FREEMAN, Appellant, v. I. G. NAVARRE, H. F. Navarre and R. O. Wesley, copartners d/b/a Navarre Plumbing & Heating Co., and Lincoln Bouillon and Herbert T. Griffith, copartners d/b/a Lincoln Bouillon & Associates, Defendants, The Ric-Wil Company, a corporation, Respondent.

Page 760

47 Wn.2d 760

289 P.2d 1015

F. Kemper FREEMAN, Appellant, v. I. G. NAVARRE, H. F. Navarre and R. O. Wesley, copartners d/b/a Navarre Plumbing & Heating Co., and Lincoln Bouillon and Herbert T. Griffith, copartners d/b/a Lincoln Bouillon &amp Associates, Defendants The Ric-Wil Company, a corporation, Respondent.

No. 32888.

Supreme Court of Washington, En Banc.

Nov. 10, 1955.

As Corrected on Denial of Rehearing Dec. 13, 1955.

Bogle, Bogle & Gates, Thomas L. Morrow, Seattle, for appellant.

Holman, Mickelwait, Marion, Black & Perkins, J. Paul Coie, Boardman W. Brown, Seattle, for respondent.

FINLEY, Justice.

This is an action for damages based upon alleged defects in an underground steam heat distribution system installed at the Bellevue Shopping Square at Bellevue, Washington. Appellant, together with certain predecessors in interest, developed the shopping center and is the owner of the real property involved. He employed Bliss Moore, Jr., as general architect for the development of the shopping center. With appellant's approval, the architect employed Lincoln Bouillon & Associates as consultant engineers respecting heating and ventilation problems. The latter recommended a central underground steam heat distribution system and specified the use of presealed insulated pipe units, designed and manufactured by The Ric-Wil Company. Navarre Plumbing & Heating Company was the contracting firm which installed the heating system.

Installation of the underground steam heat distribution system was completed in June, 1947. Commencing in January, 1949, numerous leaks or defects developed in the underground pipes or conduits. All of the defendants participated in efforts to remedy and repair the system until some time in January, 1951, when such efforts were abandoned.

The complaint alleged that the system would have to be replaced at considerable cost; that appellant sustained substantial damages in attempting to operate the system and in the efforts to repair it. The heating contractor, the engineering firm, and the manufacturer were joined as defendants for the reason that 'plaintiff is in doubt as to whether the defendants are liable to plaintiff, jointly, severally, or, in the alternative, for the damages and as to the extent of the liability of the respective defendants.' At the end of the plaintiff's case, a challenge was interposed as to the sufficiency of the evidence to present a cause of action. The Ric-Wil Company was dismissed on the ground of lack of privity of contract between it and the plaintiff. The question of liability of the engineer and the heating contractor was submitted to a jury, which returned a verdict in favor of these defendants. There is no appeal from the judgment entered on the verdict of the jury. The instant appeal is taken from the order dismissing The Ric-Wil Company, as indicated above, at the end of the plaintiff's case. It follows that the only question presented here is whether the appellant, the ultimate user, can recover from respondent, the manufacturer.

In view of the challenge to the sufficiency of the evidence, we are required to interpret the evidence in this case in the light most favorable to the case in the sen v. White, 37 Wash.2d 62, 221 P.2d 542. Considering the evidence in this light, we find that respondent, in its catalogs and technical literature, made representations that it manufactured a completely engineered underground prefabricated steam distribution system, and that its process of manufacture assured high thermal efficiency, long life, and economical installation. The system was represented as being made of the most serviceable materials, under ideal conditions and closest inspection by skilled workmen. It was described as consisting of insulated pipes inside a strong conduit, which is presealed against all damage from water or deteriorating agents, and which will keep the pipe and its insulation in perfect condition to produce the highest efficiency possible with a minimum of heat loss. Installation instructions were furnished with the pipe.

For a clearer understanding of appellant's position, we summarize portions of his complaint. The complaint alleged that the plans and specifications were prepared for plaintiff's predecessors by Lincoln Bouillon & Associates under an oral agreement with Bliss Moore, Jr., the general architect; that the specifications provided:

'Conduit shall be 'Ric-Wil Pre-Sealed Insulated Pipe Units', in 20'-0'' lengths, assembled at the factory and delivered ready for installation. The conduit shall consist of a heavy gage corrugated galvanized iron conduit, coated outside with a thick layer of asphalt, and wrapped to a smooth finish with asbestos asphalt-saturated pipe line felt.

'* * *

'Insulation in the conduit shall be Ric-Wil 'Dry-Pac' and shall entirely fill the voids between the pipes and the conduit; * * *'

that the Navarre Plumbing & Heating Co. entered into a written contract with plaintiff's predecessors to furnish all materials and to perform all work necessary to construct a heating plant.

It was also alleged that 'Ric-Wil Pre-Sealed Insulated Pipe Units' were supplied, manufactured, and furnished by The Ric-Wil Company, and were purchased for plaintiff's predecessors, and their benefit, in reliance upon recommendations, correspondence, advertisements, representations and warranties made by The Ric-Wil Company; that the presealed, insulated pipe units and material would serve the specific purpose for which they were intended, of which intended purpose the manufacturer had actual information and knowledge; that said representations and warranties were made by Ric-Wil to and for the benefit of the engineer the architect, the contractor, and plaintiff's predecessors; that the latter did not and could not know that the system would not serve its purpose, until the leaks occurred in 1949.

Paragraph XV of the complaint alleged:

'That the aforesaid damage to plaintiff was directly and proximately caused by the above-named defendants' breaches of duties, warranties and contract and/or failure to exercise reasonable care in the following particulars:

'* * *

'(c) In that (1) The Ric-Wil Pre-Sealed Insulated Pipe Units, joints, insulation and material supplied, sold and furnished by The Ric-Wil Company were defective and/or were inherently unsuitable for their intended use of which intended use The Ric-Wil Company had actual knowledge, in violation of the warranties and representations made by the defendant The Ric-Wil Company in respect to the quality and suitability for said intended use of said pipe units and material; and/or (2) in that said defendant made negligent misrepresentations as to the quality and suitability of said pipe units, joints, insulation and material in respect to the intended use and purpose of which said defendant wrongfully supplied, sold and furnished defective and erroneous installation instructions and details in respect to the construction and installation of said pipe units and material, and/or (4) failed to exercise due care in the preparation and furnishing of said erroneous instructions and details.'

The above allegations were all denied by The Ric-Wil Company. The allegations indicate, however, that plaintiff was suing in tort for breach of duty and in contract for breach of warranty.

Appellant's case was argued on two theories: (a) breach of warranties, express and implied, and (b) negligence of the manufacturer in designing and manufacturing the underground heating system, and in supplying faulty instructions to the contractors, Navarre Plumbing & Heating Co. The two theories will be discussed separately to demonstrate why it is our view that the appellant is entitled to have his case decided by a jury on the merits, and why he should not be turned out of court as a matter of law on the theory that there was no privity of contract between appellant and the manufacturer.

The appellant's theory of breach of warranty will be discussed first. The concept of warranties as contractual in origin and nature is fairly recent, as demonstrated by Professor Williston, 1 Williston, Sales (Rev. ed. 1948), § 195, 501. As there shown, recovery for breach of warranty was allowed a hundred years prior to the development of the action of special assumpsit, which form of action was the forerunner of the modern law of contracts. The first reported case in which recovery for breach of an express warranty was allowed in assumpsit, a form of action appropriate in the case of breach of a simple contract, seems to be Stuart v. Wilkins, 1 Doug. 18, 99 Eng.Rep. 15 (1778). In the Stuart case, tried to a jury and presided over by Lord Mansfield, a verdict for the plaintiff was entered. A motion was made to set aside the verdict and to nonsuit the plaintiff. It was contended that an improper writ had been sued out by the plaintiff; in other words, that an improper common-law form of action was used. The question was argued before the King's Bench, and judgment was entered for the plaintiff. Two of the judges said in their opinions that they had heard, for about twenty years, of such a form of declaration in actions for breach of warranty. From then on, this mode of declaration in stating a cause of action became standard, and warranties began to be looked upon as contractual in nature.

In the eighteenth century, when Stuart v. Wilkins, supra, and the cases following it, were decided, goods and chattels were manufactured or made largely on a custom basis involving a personal, over-the-counter relationship between the customer, on the one hand, and the artisan, or mechanic, who made the goods or chattels, on the other. Mass production, large scale or national promotion and distribution were unknown. Actually, there was little need for a legal remedy for a consumer against a manufacturer in a distant city who had sold products to a distributor, who, in turn, had sold them to a jobber, who...