General Bronze Corp. v. Kostopulos, 5261

• Decision Date: 27 November 1961
• Docket Number: No. 5261,5261
• Parties: GENERAL BRONZE CORPORATION v. NICHOLAS KOSTOPULOS. Record
• Court: Virginia Supreme Court

Page 548

122 S.E.2d 548

203 Va. 66

GENERAL BRONZE CORPORATION v. NICHOLAS KOSTOPULOS.

Record No. 5261.

Supreme Court of Appeals of Virginia

November 27, 1961.

L. S. Parsons, Jr. (Parsons, Stant & Parsons, on brief), for the plaintiff in error.

Augustus Anninos and Guy E. Daugherty (Howell, Anninos & Daugherty, on brief), for the defendant in error.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Nicholas Kostopulos, appellee, instituted an action at law against General Bronze Corporation, appellant; Construction Supply Corporation, and Joe Tugwell for property damages he sustained by rain water leaking through sliding glass doors into the rooms of his motel, which was constructed by Tugwell, the general contractor, and completed in May 1958. In his motion for judgment he alleged that Tugwell was negligent in the installation of the doors; that Construction Supply Corporation was negligent in assembling the doors received from the manufacturer, and that General Bronze Corporation, the manufacturer, was negligent in the design and construction of the doors. He further alleged that the manufacturer had breached its implied and express warranties of fitness and quality. At the conclusion of plaintiff's evidence, the defendants moved to strike plaintiff's evidence. The motion was granted as to Tugwell and summary judgment was entered for him. As to the other defendants, the court sustained the motion as to liability based upon warranty and overruled it as to their liability based on negligence. At the conclusion of all the evidence, plaintiff's motion for a non-suit as to Construction Supply Corporation was granted. General Bronze Corporation renewed its motion to strike plaintiff's evidence on the ground that the evidence failed to show it was negligent, and the motion was overruled. The question of liability was confined to that of negligence in the 'construction and design' of the doors. The jury returned a verdict in the sum of $11,332.75 against General Bronze Corporation, and the judgment rendered thereon gives rise to this appeal. Tugwell was not made an appellee.

The litigants involved in this appeal will be referred to at times as plaintiff and defendant in accordance with the positions they occupied in the court below.

Defendant has assigned fifty-five errors. They charge that the court erred in admitting and refusing certain evidence; in refusing to permit a view of the premises; in striking plaintiff's evidence as to Tugwell; in permitting plaintiff to take a non-suit as to Construction Supply Corporation; in the granting and refusing certain instructions; in refusing to declare a mistrial because of improper argument of counsel; in overruling defendant's motion to strike plaintiff's evidence, and in overruling defendant's motion to set aside the verdict as being contrary to the law and evidence and enter judgment for defendant, or in the alternative grant it a new trial.

In the summer of 1957, plaintiff, Nicholas Kostopulos, employed John Waller as his architect to design and supervise the construction of a motel, known as Saxony Motel, located on the water front of Virginia Beach. Joe Tugwell, a general contractor, was awarded the contract to construct the motel. After consulting with Edward J. Ward, sales representative of General Bronze Corporation, and reading its published brochure concerning the efficiency of its products, Waller specified for the job 21 'Coronet' aluminum sliding doors manufactured by defendant 'or equal'. The 'Coronet' doors were purchased through Construction Supply Corporation, which assembled and delivered them to the job site. They were installed by Tugwell on the eastern or water front side of the building, and were recessed from the building line five feet, four inches, so that they were framed by sidewalls, roof and floors of masonry.

Beginning several months after completion of the motel there were rains driven by east or northeast winds of velocity ranging from 29 to 46 miles per hour. On each such occasion the doors leaked and the water damaged the rugs, drapes and curtains in the rooms. Plaintiff notified the architect, contractor, supplier and the manufacturer that the doors leaked. Various tests and adjustments were made, but the doors continued to leak and cause damage. There was evidence to the effect that the door was not properly designed to repel water. On the other hand there was evidence to the effect that the doors were not defective. Tugwell testified that he followed Waller's instructions in installing the doors, but was not furnished defendant's assembly manual which showed how the doors should be installed. Defendant maintained that the leakage was due to the improper installation of the doors rather than design.

As has been said, the question of defendant's liability was confined by the trial court to that of negligence in the design and construction of the doors. Defendant contends that the court erred in refusing to strike plaintiff's evidence as to this phase of liability because the evidence was insufficient to establish such negligence. With this contention we agree. The doors in question were a standard product. They were not manufactured carelessly or negligently, but were manufactured according to plan or design. Can it be said that defendant was negligent if the doors were manufactured according to design? The evidence shows the manufacturer had tested the 'Coronet' door under extreme conditions for strength and water tightness and found it to be efficient. There were no hidden defects known to the manufacturer. The fact that plaintiff's doors did not repel water as expected is not proof of negligence in the design and construction. There might have been intervening causes. Tugwell said he followed Waller's instructions in installing the doors, and was not furnished a copy of the manufacturer's assembly manual for installation. To constitute negligence there must be a duty owed and a breach of that duty. Here there was no showing of any duty owed by defendant to plaintiff in the design and construction of the doors. Upon consideration of the entire record, we find that the evidence was insufficient to establish that defendant was negligent in the design and construction of the doors.

Moreover, defendant argues that a plaintiff cannot recover from a manufacturer of products not inherently dangerous alleged to have caused injury to property, on the basis of negligence, when there is no privity of contract between them.

In 78 A.L.R. Anno.2d, § 7, p. 704, it is stated:

'* * * [Traditionally], privity has been viewed as prerequisite to recovery in a negligence action growing out of product-caused injury; hence, in a negligence action against a producer or seller of a product of the kind now under discussion, [building supplies, etc.]...