Henderson v. Gould, Inc.

• Decision Date: 16 December 1985
• Docket Number: No. 0649,0649
• Court: South Carolina Court of Appeals
• Parties: Neville Patrick HENDERSON, Appellant, v. GOULD, INC., South Carolina Electric & Gas Company, and Underwriters Laboratories, Inc., Respondents. . Heard

Page 806

341 S.E.2d 806

288 S.C. 261

Neville Patrick HENDERSON, Appellant, v. GOULD, INC., South Carolina Electric & Gas Company, and Underwriters Laboratories, Inc., Respondents.

No. 0649.

Court of Appeals of South Carolina.

Heard Dec. 16, 1985.

Decided March 12, 1986.

Tobias G. Ward, Jr., and James D. Cooper, Jr., of Ratchford and Cooper, Columbia, for appellant.

Douglas McKay, Jr., of McKay, McKay, Grubbs & Nunn; Charles E. Carpenter, Jr., and F. Barron Grier, III, of Richardson, Plowden, Grier & Howser; and John C.B. Smith, Jr., of Nexsen, Pruet, Jacobs & Pollard, Columbia, for respondents.

SANDERS, Chief Judge:

Appellant Neville Patrick Henderson sued respondents Gould, Inc. (Gould), South Carolina Electric & Gas Co. (SCE&G) and Underwriters Laboratories, Inc. (UL) alleging facts which purport to constitute causes of action for negligence, breach of warranties and strict liability. The Circuit Court granted a motion by Gould to strike the causes of action for breach of warranties and strict liability. We affirm in part, reverse in part and remand.

The following facts are taken from the statement included in the transcript of record on appeal and from the allegations of Henderson's complaint. ¹

Henderson brought this action seeking to recover damages for an injury he allegedly received while he was installing the electrical system in a plant being constructed for Gould.

In the part of his complaint styled "FOR A FIRST CAUSE OF ACTION," Henderson alleges Gould, SCE&G and UL were negligent in several particulars. We need not address the specific allegations contained in this part of the complaint because no issue is presented on appeal as to this cause of action.

In the part of his complaint styled "FOR A SECOND CAUSE OF ACTION," Henderson alleges the same defendants breached certain warranties implied by law and are strictly liable to him. Although this part of the complaint appears to jumble causes of action for breach of warranties and strict liability, the record does not reveal any motion to require the causes of action to be stated separately. ²

As to Gould, the complaint alleges Gould was engaged in designing and manufacturing all types of switchboards sold for use by the general public and, in particular, by persons employed to install and repair switchboard devices for consumers. Gould expected the switchboards to reach consumers and users in the same condition existing when they were manufactured and sold. Gould manufactured, maintained and provided a temporary switchboard to Henderson's employer for use at the construction site. This switchboard was in a defective condition, unreasonably dangerous to a consumer, and was in the same condition existing when Gould manufactured it for the general public. Henderson was injured while using the temporary switchboard in performing a changeover from it to a permanent switchboard. Henderson was unaware of any defect in the temporary switchboard or any danger to him as a result of using it. He relied on Gould to deliver the temporary switchboard in a condition fit to be used for the purpose intended and his injury was caused by the failure of Gould to do so. The complaint further alleges facts about a certain metal cage surrounding the temporary switchboard. These facts are essentially the same as those alleged in the part of the complaint relating to the temporary switchboard itself.

As to SCE&G, the complaint alleges SCE&G was engaged in manufacturing and selling electricity, sold to the general public as ultimate users and consumers, and intended to reach the public in the same condition existing at the time of its manufacture and sale. SCE&G sold electricity to Gould for use at its construction site. The electricity was an ultrahazardous product in a defective condition, unreasonably dangerous to a user or consumer. Henderson was using this electricity when he was injured and was unaware of its defective condition or any danger to him as a result of using it. The electricity was in the same condition existing when it was sold and delivered to Gould. SCE&G provided no warnings as to the safe and proper use of the electricity. The complaint further alleges Henderson relied on SCE&G to deliver the electricity in a condition fit for the purpose intended, and his injury was caused by its failure to do so.

As to UL, the complaint alleges UL jointly and concurrently participated with Gould in the design, manufacture and sale of the temporary switchboard in that UL approved it and assisted and promoted its sale by affixing a seal of approval on it. The complaint then repeats essentially the same allegations as to UL and the temporary switchboard which it alleged as to Gould and the switchboard.

Gould moved for an order striking from the complaint all allegations of breach of warranties and strict liability "on the grounds that this defendant [was] not a seller within the meaning of the Uniform Commercial Code."

SCE&G moved for summary judgment based in part on its assertion that electricity is not "a product within the meaning of South Carolina's strict tort liability and warranty laws."

Gould's motion to strike was heard by the Circuit Court at which time the court considered arguments of counsel and the pleadings of the parties. Thereafter, the court issued its order requiring Henderson to amend his complaint so as to delete the causes of action for breach of warranties and strict liability "for the reason that the Defendant Gould, Inc. was not a seller within the meaning of the Uniform Commercial Code nor the Restatement of Torts, 2d, Section 402(a)."

SCE&G's motion for summary judgment is still pending.

The issues raised by Henderson's exceptions on appeal of the Circuit Court order are: (1) whether the order applies to the allegations of breach of warranties and strict liability against SCE&G and UL as well as to Gould; (2) whether the order should be reversed because it fails to state separate findings of fact and conclusions of law; and (3) whether the Circuit Court erred in striking the causes of action for breach of warranties and strict liability.

In addition to these issues, we also address the issue raised by Gould in its brief of whether the order should be affirmed because Henderson's exclusive remedy is provided by the South Carolina Workers' Compensation Act.

I

We first address whether the Circuit Court order applies to the allegations of breach of warranties and strict liability against SCE&G and UL.

We conclude the order was not so intended and should not be so applied. The order was issued in response to Gould's motion. The motion was made and granted on the ground Gould was not a seller. Neither SCE&G nor UL joined in the motion and neither the motion nor the order refer to SCE&G or UL. In order for us to conclude the order was intended to strike the allegations of breach of warranties and strict liability against SCE&G and UL, we would have to conclude the court intended to grant these defendants relief which they had not sought on a ground inapplicable to them. This would have been error. See Friedberg v. Goudeau, 279 S.C. 561, 309 S.E.2d 758 (1983) (order granting motion for summary judgment reversed because ground on which motion granted not properly before the court); Bass v. Bass, 272 S.C. 177, 180, 249 S.E.2d 905, 906 (1978) ("Due process requires that a litigant be placed on notice of the issues which a court is to consider."); Skinner v. Skinner, 257 S.C. 544, 186 S.E.2d 523 (1972) (in granting a motion, a court ordinarily may not grant relief beyond the scope of the motion).

The fact that SCE&G's motion for summary judgment is still pending buttresses our conclusion.

II

We next address whether the order should be reversed because it fails to state separate findings of fact and conclusions of law.

We conclude the order should not be reversed for this reason. Section 15-35-110, Code of Laws of South Carolina, 1976, provides:

Upon the trial of a question of fact by the court its decision shall be given in writing and shall contain a statement of the facts found and the conclusions of law, separately. Upon a trial of an issue of law, the decision shall be made in the same manner, stating the conclusion of law.

The issues presented by Gould's motion were issues of law, not fact. While the order does not set out conclusions of law as such, it adequately states the legal basis for the result the court reached. Moreover, Section 15-35-110 is directory rather than mandatory and failure to follow its directions does not require reversal. Housing Authority of City of Charleston v. Olasov, 282 S.C. 603, 320 S.E.2d 478 (Ct.App.1984) ; May v. Cavender, 29 S.C. 598, 7 S.E. 489 (1888). ³

III

We next address whether the Circuit Court erred in striking the causes of action for breach of warranties and strict liability.

A

We conclude the Circuit Court did not err in striking the cause of action for breach of warranties. The complaint contains no allegation of any express warranty by Gould. In this state, warranties implied by law are recognized pursuant to the Uniform Commercial Code (UCC). See §§ 36-1-101 to 36-10-103. Before an implied warranty can arise under the UCC, a sale must first occur. See §§ 36-2-314 and 36-2-315. Henderson's complaint does not allege any sale of the temporary switchboard by Gould. Furthermore, Henderson fails to argue in his brief his exceptions asserting error by the Circuit Court in striking as to Gould the causes of action for breach of warranties. Exceptions not argued are deemed abandoned. Rouse v. McCrory, 286 S.C. 311, 334 S.E.2d 517 (Ct.App.1985).

B

We conclude the Circuit Court did err in striking the cause of action for strict liability. In 1974, our legislature made the doctrine of strict liability a part of the statutory law of this state by enacting almost verbatim Section 402A of the Restatement (Second) of Torts (1965). See 1974 S.C. Acts 2782. Section 402A was later...