Hales v. Green Colonial, Inc.

• Decision Date: 17 January 1974
• Docket Number: No. 73-1122,73-1136 and 73-1139.,73-1122
• Citation: 490 F.2d 1015
• Parties: Dean HALES et al., Appellees, v. GREEN COLONIAL, INC., a corporation, et al., Appellants, v. Harold MUNROE, Third Party Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

490 F.2d 1015 (1974)

Dean HALES et al., Appellees, v. GREEN COLONIAL, INC., a corporation, et al., Appellants, v. Harold MUNROE, Third Party Appellee.

Nos. 73-1122, 73-1136 and 73-1139.

United States Court of Appeals, Eighth Circuit.

Submitted October 16, 1973.

Decided January 17, 1974.

Rehearing and Rehearing Denied February 6, 1974.

Dan Hale, St. Joseph, Mo., for Dover.

Joseph K. Houts, St. Joseph, Mo., for Green.

James Borthwick, Kansas City, Mo., for Iowa Plumbers.

Thomas A. Sweeney, Kansas City, Mo., for Munroe.

Michael E. Waldeck, Kansas City, Mo., for appellee.

Before LAY and BRIGHT, Circuit Judges, and G. THOMAS EISELE, District Judge.^*

Rehearing and Rehearing En Banc Denied February 6, 1974.

LAY, Circuit Judge.

This is an appeal from money damages awarded for the destruction of a building and its contents by a fire allegedly caused by a defective heater. The trial court submitted the cause to the jury on the theory of strict liability under Missouri law. The jury awarded plaintiffs $102,594.00. The trial court overruled defendants' motion for a judgment notwithstanding the verdict and their alternate motion for a new trial. We affirm.

Plaintiffs, Dean Hales, Bernadine Hales and James Mogg, were the owners and operators of a Ben Franklin Store in Hamilton, Missouri. In June of 1970, they moved the location of their store to a remodeled building. To determine the heating needs of their new store they contacted Harold Munroe, a licensed plumber and heating installer, who along with a representative of Green Colonial, Inc., an Iowa supplier of heating equipment, visited the premises. Munroe determined that both a 300,000 BTU heating unit and a 150,000 BTU heating unit were necessary to sufficiently heat the store. Munroe ordered from Green Colonial two Peerless brand heaters, specifying that they burn LP gas (propane) since Hamilton had no natural gas supply. Green Colonial in turn placed the order for the two Peerless heaters with Iowa Plumbing Supply, Inc., a distributor in Des Moines, Iowa (IPS). Dover Corporation was the manufacturer of Peerless heater units.

IPS furnished to Green Colonial one 150,000 BTU propane heater and one 300,000 BTU natural gas unit with a conversion kit so that it could be used with propane gas. Green Colonial sent these units on to Munroe. Both of the heaters were installed by Munroe and connected to a propane gas tank by the Solar Gas Company of Hamilton. In October of 1970 Munroe converted the 300,000 BTU natural gas heater by using a conversion kit sent to him from Dover.¹ The conversion kit is manufactured by a different company but Dover supplies them to be used for converting their natural gas heaters. In making the conversion Munroe reduced all the orifices, reduced the elbow pipe and substituted an LP gas valve for the one used for natural gas. He likewise changed the blue tag which was on the natural gas heater to a red tag which designated a propane heater. The red tag along with the orifices, valve and elbow pipe constituted the packaged conversion kit sent by Dover to Munroe. Dover did not send any instructions with the kit. Munroe testified he had made conversions before and was familiar with the procedure. The heaters were operated for approximately a week at which time they were inspected by Munroe. He found the flame to be normal.

In early November the plaintiffs began noticing strange popping and exploding noises coming from the 300,000 BTU heater. On December 10, the gas company representative came and adjusted the gas pressure to 11 inches of water column, the specified setting required by Dover. According to Dover's experts the reading was taken erroneously and was made at the wrong place. The noises continued and on December 18, a fire caused by the larger heater ignited the combustible contents of the store and destroyed the building.

Plaintiffs brought suit against Green Colonial, Dover and IPS. Dover sought indemnity against Harold Munroe, the installer. Green Colonial and IPS brought cross-claims for indemnity against Dover. The jury returned a verdict against the three defendants. Prior to the submission of the case to the jury, the trial court dismissed the claim against Munroe.² The court has reserved its ruling on the cross-claims by Green Colonial and IPS against Dover.

On appeal several grounds of error are raised by the defendants. We find only two issues deserve extended consideration: (1) whether the evidence was sufficient to submit the defendants' liability under the doctrine of strict liability; and (2) whether damages awarded for consequential loss are proper in Missouri under strict liability. We have reviewed the other grounds of error and find they facially lack merit and do not warrant discussion.³

In regard to the first issue the defendants contend that (a) there has been no showing of an unreasonably dangerous defect, (b) the product was substantially changed from the condition in which Dover originally sold it, and (c) the plaintiff was guilty of contributory fault.

THE DEFECTIVE HEATER

Plaintiffs' evidence that the Peerless heater, as converted, was defective rests solely on the testimony of Alfred Benberg, a consulting engineer and architect, registered in the State of Missouri. After examination of the Peerless unit he opined that the heater was defective for two reasons: (1) it did not have a flame tube which would ignite all the burners simultaneously, and (2) the air shutter bar was designed in such a manner as to cause delayed ignition regardless of how it was adjusted. He testified that these two defects caused the heater to backflash thereby igniting combustible goods on display in the store. Defendants attack this testimony as being speculative and without any scientific or engineering certainty. They couple this attack with the fact that their expert witnesses, also licensed engineers, suggest that the burner was operating without sufficient gas pressure and that this in reality caused the fire. They urge that the manual setting of the air adjustment bar by Mr. Munroe, the installer, along with the improper pressure set by the gas company caused a delayed ignition and the resulting fire. The defendants also offered testimony that the particular heater in question had been certified as being safe and properly designed by the American Gas Association, a trade organization for the natural gas industry.

Plaintiffs' evidence as to causation causes this court, as it did the trial court, a good deal of difficulty. Mr. Benberg's opinion that the air adjustment valve did "not provide sufficient air adjustment to be sure that you get an even distribution through the burners" is not amplified or explained. This theory was not developed in any detail during either the direct or cross examinations. As the defendants suggest Mr. Benberg's explanation is confusing to say the least.⁴

Defendants' engineer points out that LP gas requires 10% less air for combustion than natural gas. His testimony was that the adjustment of the air vent cannot in any way affect the velocity of the gas but simply affects the mixture of the air with the gas, thus determining whether there will be a rich or lean combustion. Plaintiffs urge on appeal that the fault with the air vent lies with the fact that the air adjustment bar is not designed to allow for individual adjustment to any one of the 18 burners. The record shows, however, that Mr. Benberg did not attribute the cause of the fire to the absence of individual adjustment. His testimony points up that the triangular flanges or fingers on the bar can be individually adjusted. Mr. Benberg's complaint is that there is not an even distribution throughout all the burners. Without further explanation we find Mr. Benberg's bare conclusion concerning the air bar insufficient to sustain the verdict.

However, notwithstanding this shortcoming, we find it a fair inference from his testimony that the basic heater lacked a flame tube in the back of the burners which would provide uniform ignition from the single pilot light. This is explained by Mr. Benberg as follows:

A. The effect of not having a flame tube or a carryover tube is that the flame must jump from one burner to the other, two inches, as a matter of fact. Whereas, if they had a carry-over tube the flame would be, a perforated lighter tube, the flame continues for the entire length and they would all light up at the same time. Now, they have to jump a total of two inches. But this is—or over two inches, as a matter of fact. This is particularly undesirable when it\'s LP gas because of the fact that LP gas is lighter and it comes out and then it will drop down, whereas natural gas, that will come out in a cone, you\'ll have a much easier distribution or propagation of the flame. But you have two inches to jump here, and it just, in my opinion, can\'t do it, properly and safely.

Plaintiff Dean Hales' own testimony was that on one occasion shortly before the fire the unit "exploded so hard" that it "bent the metal bottom down." Plaintiffs' theory, as urged on appeal, is that the gas dropped down, collected in the botton of the unit and because of imperfect ignition, finally exploded.

Benberg's testimony concerning the absence of the flame tube was not subjected to any cross-examination. Defendants challenge it on appeal on the basis that one of their witnesses, Robert Mackley, the chief engineer for Peerless Division of Dover, explained that the unit has a continuous series of ports, called carry over ports, on the back, which ignite simultaneously. It was conceded by the defense that there was no flame tube as such on the unit but that the continuous ports constituted its equivalent. The unit along with photographs are in the record. The exhibits demonstrate that there is not a continuous connection on the 18 burners. This evidence was before the jury. We find the exhibits when coupled with plaintiffs' explanation are...