Frey v. Montgomery Ward & Co.

• Decision Date: 28 September 1977
• Docket Number: No. 46872,GRAW-EDISON,46872
• Court: Minnesota Supreme Court
• Parties: Merlon FREY, et al., Respondents, v. MONTGOMERY WARD & COMPANY, INC., defendant and third party plaintiff, Appellant, v. McCOMPANY, third party defendant and fourth party plaintiff, Respondent, v. ROBERTSHAW CONTROLS COMPANY, fourth party defendant, Respondent.

Page 782

258 N.W.2d 782

Merlon FREY, et al., Respondents, v. MONTGOMERY WARD & COMPANY, INC., defendant and third party plaintiff, Appellant, v. McGRAW-EDISON COMPANY, third party defendant and fourth

party plaintiff, Respondent, v. ROBERTSHAW CONTROLS COMPANY, fourth party defendant, Respondent.

No. 46872.

Supreme Court of Minnesota.

Sept. 28, 1977.

Syllabus by the Court

1. The trial court properly directed a verdict for plaintiffs against Montgomery Ward on the question of negligence, based on Montgomery Ward's imputed knowledge of the danger of the use of a space heater in plaintiffs' house trailer.

2. By directing a verdict solely on the issue of Montgomery Ward's negligence, the trial court properly left to the jury the determination of whether that negligence was the proximate cause of plaintiffs' damages.

3. McGraw-Edison, manufacturer of the space heater, did not warn in its owner's guide or venting instruction booklets that use of the space heater in house trailers and other tightly enclosed and poorly insulated areas would be ill-advised and potentially dangerous. Whether McGraw-Edison reasonably could have foreseen that its space heaters would be used under such circumstances was properly a jury question so that it was error for the trial court to direct a verdict in favor of the manufacturer. We remand for a new trial on the issue of McGraw-Edison's duty to warn against such use and, if so established, for determination whether damages should be apportioned between Montgomery Ward and McGraw-Edison in accordance with our decision in Tolbert v. Gerber Industries, Inc., Minn., 255 N.W.2d 362 (1977), or whether Montgomery Ward is entitled to indemnity based upon Rule 3 in Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 104 N.W.2d 843 (1960).

Doherty, Rumble & Butler and Bruce E. Hanson, St. Paul, for appellant.

Schiefelbein & Greenberg and Alan G. Greenberg, Minneapolis, for Frey, et al.

Ochs, Larsen, Klimek & Cesario and Norman W. Larson, Minneapolis, for McGraw-Edison Co.

Cousineau, McGuire, Shaughnessy & Anderson, Minneapolis, for Robertshaw Controls Co.

Heard before PETERSON, MacLAUGHLIN and SCOTT, JJ., and considered and decided by the court en banc.

MacLAUGHLIN, Justice.

Plaintiffs, Merlon and Guelda Frey, commenced this action to recover damages allegedly caused by overheating from a space heater purchased from defendant, Montgomery Ward & Company, Inc. (Montgomery Ward), for use in a house trailer where plaintiffs bred and raised chinchillas for commercial purposes. Montgomery Ward then commenced a third-party action against McGraw-Edison Company (McGraw-Edison), manufacturer of the space heater, and McGraw-Edison impleaded Robertshaw Controls Company (Robertshaw), manufacturer of the space heater control unit, as a fourth-party defendant.

Before the case went to the jury, the trial court granted a motion for a directed verdict in favor of McGraw-Edison, and a motion for dismissal in favor of Robertshaw, in addition to directing a verdict against Montgomery Ward on the issue of its negligence. The jury by special verdict found plaintiffs had been damaged in the amount of $28,000 and Montgomery Ward has appealed from the entry of judgment and from the denial of its alternative motions for judgment notwithstanding the verdict or for a new trial. We affirm in part, reverse in part, and remand.

On March 24, 1971, plaintiffs purchased a gas space heater which was on display as a floor model at the Montgomery Ward retail store in St. Paul. The space heater had been manufactured by McGraw-Edison and sold to Montgomery Ward for resale under it own label. Although the clerk who made the sale had no recollection of Frey or of the particular transaction, Frey testified that he had told the clerk of his intended use of the space heater in a house trailer where he planned to raise chinchillas for breeding and pelting purposes.

Frey took the space heater to the Salvation Army Camp on Silver Lake, in New Brighton, where he lived and worked as caretaker and maintenance man. Frey installed the space heater and vented it himself, using his own gas line and regulator connected to a supply of bottled gas. After completing the installation, Frey asked a Skelgas serviceman to inspect it and determine if the space heater had been correctly installed and was working properly.

Until February 8, 1972, the space heater operated satisfactorily, automatically maintaining the temperature in the trailer between 68 and 70 degrees. On the evening of February 7, before Mrs. Frey went to bed, she made her regular nightly visit to check on the herd of 360 chinchillas located in pens in the trailer house. The outside temperature was not unusually cold and since the temperature in the trailer was within the proper range, Mrs. Frey made no adjustment of the space heater's thermostatic control.

The next morning at 9:00 a. m., when Frey went out to the trailer, he found the temperature inside was over 110 degrees. The chinchillas in the top layer of cages, near the ceiling, were already dead and those in the cages beneath were dead or dying. Frey turned off the space heater and attempted to cool the trailer by opening the windows and doors.

Mrs. Frey called Montgomery Ward and they dispatched serviceman William O'Kasick. When he arrived, he was unable to observe any defect in the heat control unit or to ascertain whether it was operating automatically since the temperature in the trailer had dropped to less than 50 degrees. Because the space heater was still under warranty, O'Kasick replaced the Robertshaw heat control unit with one from a different manufacturer, tagged the control unit he had removed, and turned it in to Montgomery Ward's defective parts station. Montgomery Ward then returned the control unit to McGraw-Edison pursuant to a vendor charge-back procedure, but the control unit was misplaced by McGraw-Edison before plaintiffs commenced this action.

After installation of the new heat control unit, the space heater still failed to operate automatically and Frey stayed in the trailer that evening to manually adjust the heat in order to maintain the proper temperature. Shortly thereafter, a Skelgas serviceman replaced the gas line and a secondary regulator leading from the bottled gas tank because of low pressure at the burner, and O'Kasick returned to replace the heat sensor on the newly installed heat control unit. From that time on the space heater operated properly.

Frey testified that although only 32 chinchillas had died on the morning of February 8, the animals continued to get sick and die, making it necessary to dispose of 330 of them. Leroy Long, former field representative for two chinchilla promotion companies, testified that he had seen plaintiffs' rare and unusual chinchilla herd the day before the overheating occurred and that the herd had been in excellent condition. He stated that chinchillas have no tolerance for heat and become sterile or die as a result of high temperatures.

Robert Knudson, former director of engineering for heating products at McGraw-Edison, testified that in his opinion the space heater had not malfunctioned at all but rather the overheating was caused by stratification of air in the trailer, with hot air rising to the ceiling and cold air remaining below in contact with the heat sensor. Knudson stated that McGraw-Edison's space heaters were not designed for use in house trailers which have inadequate insulation and that if so utilized the space heater's open combustion system could be dangerous by reason of the excessive utilization of oxygen within a tightly enclosed area.

Although McGraw-Edison furnished an owner's guide and venting instructions for use with its space heaters which contained specifications and recommendations for installation and operation, these printed booklets did not state that the space heaters should not be used in house trailers or in other poorly insulated and tightly enclosed spaces.

Before final arguments, the trial court granted McGraw-Edison's motion for directed verdict and Robertshaw's motion for dismissal, dismissing them from the action on grounds that there was no evidence to establish that the space heater was defectively manufactured or that it would have malfunctioned if properly used, i. e., not used in a house trailer. At the same time the trial court directed a verdict against Montgomery Ward on the issue of negligence because of its sale of the space heater for use in plaintiffs' house trailer, but the court asked the jury to determine whether Montgomery Ward's negligence was the proximate cause of the damages alleged by plaintiffs. The jury found by special verdict that Montgomery Ward was 100 percent negligent and that plaintiffs had been damaged in the amount of $28,000.

1. Montgomery Ward contends that the trial court committed error by directing a verdict on the issue of its negligence in the sale of the space heater to plaintiffs to be used in plaintiffs' house trailer.

Frey testified that he told the Montgomery Ward salesperson of his intended placement of the space heater in the house trailer where he planned to raise chinchillas and that the salesperson gave no indication that such use would be unsuitable or dangerous. We have held that in any determination of whether equipment furnished for a specific purpose is safe, the circumstances for which it is to be used are to be considered in ascertaining the negligence of the seller. Where the seller has knowledge of the particular conditions under which the equipment is to be used, knowledge of dangers which are inherent in such use may be imputed to the seller. Manteuffel v. Theo. Hamm Brewing Co., 238 Minn. 140, 56 N.W.2d 310 (1952).

Further, when the seller knows or should anticipate that an inexperienced purchaser might use the item sold in a particular manner, the seller has a duty to warn of any dangers which might arise from that use if...