Huebert v. Federal Pac. Elec. Co.

• Decision Date: 04 March 1972
• Docket Number: No. 46157,46157
• Citation: 494 P.2d 1210,208 Kan. 720
• Parties: , 10 UCC Rep.Serv. 545 Dick D. HUEBERT, Appellee, v. FEDERAL PACIFIC ELECTRIC COMPANY, Inc., Appellant.
• Court: Kansas Supreme Court

Page 1210

494 P.2d 1210

208 Kan. 720, 10 UCC Rep.Serv. 545

Dick D. HUEBERT, Appellee, v. FEDERAL PACIFIC ELECTRIC COMPANY, Inc., Appellant.

No. 46157.

Supreme Court of Kansas.

March 4, 1972.

Syllabus by the Court

1. In a products liability action based on breach of an express warranty the manufacturer of the product is liable for personal injuries to a user of the product under the circumstances disclosed in the opinion if the product does not operate or perform in the manner warranted.

2. Contributory negligence or assumption of risk as normally used are not defenses to an action based on breach of an express warranty; however, an unreasonable use of a product after discovery of a defect and becoming aware of a danger is a defense.

3. In an action based on an express warranty made by a manufacturer, the user must show that the manufacturer could reasonably foresee that: (1) The user would in a normal course of circumstances be exposed to the product sold, and (2) a breach of the express warranty in itself or in conjunction with an intervening cause could result in injury to a person so exposed.

4. The record is examined and it is held: (1) The trial court did not err in refusing to grant judgment for defendant as a matter of law, and (2) the trial court erred in refusing to give instructions in the manner approved in the opinion.

Robert M. Siefkin, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Jerry G. Elliott, Wichita, was with him on the brief for appellant.

Wilmer E. Goering, of Goering, Silver & Clarkson, Wichita, argued the cause, and Earl M. Clarkson, Jr., Wichita, was with him on the brief for appellee.

OWSLEY, Justice:

This is a products liability case involving an express warranty. The plaintiff recovered a jury verdict in the trial court and from this judgment defendant appeals.

The defendant's appeal is based upon two contentions: (1) The trial court erred in refusing to grant judgment for defendant as a matter of law, and (2) the trial court erred in refusing to give defendant's requested instructions.

Plaintiff has been a journeyman electrician since 1958 and has been employed by Empire Electrical Contractors. In January, 1968, plaintiff installed a certain QMQB description panel board which included a 600 amp QMQB switch, at Kansas Cold Storage Company to bring its equipment up to city code specifications.

Defendant is the manufacturer of the 600 amp switch and has manufactured 10,000 to 11,000 switches since about 1960. Defendant, in its descriptive literature and specification sheets pertaining to the QMQB panel board, expressly warranted as follows:

'a. Integral handle mechanism for greater convenience. Handle mechanism and switch are combined into a single compact unit. This construction eliminates excess linkage, prevents misalignment as well as false indication of switch position 'b. Cover interlock. Door opens only when switch is in 'off' position. Interlock is voidable by authorized personnel.

'c. A cover interlock shall prevent opening the door over the fuse compartment unless the switch is in the 'off' position.'

After completing the installation, plaintiff switched the switches off and on and they all worked. He opened and shut the switch door several times but did not try to open the door while current was going through the box.

In late May, 1968, there was a malfunction in the electrical system at Kansas Cold Storage, apparently caused when a bolt of lightning struck the plant during an electrical storm. A 100 amp switch on the main description panel was charred and burned and there was visible smoke damage to the panel. Plaintiff was sent to effect repairs on Sunday of the Memorial Day weekend, June 2, 1968.

One of the three sets of movable contact blades fused or welded together, and in such condition the switch door opened with the switch in 'off' position. An electrical charge of 440 volts remained in the welded phase of the three-phase switch.

Just prior to opening the panel door, plaintiff turned off two 100 amp switches and left a compressor on which was operated by a 200 amp switch. When he turned the 600 amp switch to 'off' the compressor motor cut off and the room became completely quiet. When two of three phases are disconnected in a three-phase system, any motor in the system will not run even though 440 volts are still passing through one of the phases.

Plaintiff had two testers with him with which he could have tested the line for electricity, but he did not use them. In reliance on the 'off' indicator of the 600 amp switch, plaintiff began to disconnect the 'A' phase of the 600 amp switch with a screwdriver and removed one screw without incident. While removing a second screw, plaintiff received an electrical shock and burn which threw him part way across the room. The lights in the plant were off and plaintiff was using existing natural light from an open door to do his work.

When plaintiff opened the 600 amp switch, he observed the visible blades or clappers and they appeared straight, but he did not look to see whether they were up or down and he did not make certain they were either up or down. Plaintiff's employer testified that a person looking at the switch could not tell if the visible contacts were down or 'on' unless he were familiar with the equipment; and he added that he would expect the man who installed the equipment to the familiar with it.

The 'C' phase contact blades were welded shut, but the shock was received by plaintiff from the 'A' phase. Voltage was running from the 'C' phase of the 600 amp switch, through the 200 amp switch, through the compressor, out on 'A' phase, back through the 200 amp switch, then up to the top of the 600 amp switch, on 'A' phase.

After plaintiff's injury, Mr. Bare and Mr. Just of Shelley Electric were called to the plant. Electricity was disconnected at the transformer by Kansas Gas and Electric Company, the 600 amp switch removed, and the plant 'temporaried' back into operation.

Mr. Just, a journeyman electrician, testified that he could not visually tell whether the blades on the 600 amp switch were open or shut, but assuming that all equipment went off when switches were thrown, in his opinion it would be safe to turn the 600 amp switch to 'off.'

Mr. Bare, a journeyman electrician of twenty years, testified that he was amazed that with the switch in 'off' position there was still voltage. It was his opinion that, assuming all equipment went off when all switches were shut off, and that the 600 amp switch opened and one lug loosened, nothing else would necessarily have to be done before loosening the other lugs.

About two months after returning to work, plaintiff returned to Kansas Cold Storage and installed a new 600 amp switch.

At trial plaintiff claimed permanent damage or injury due to burns on his arms, face, hands, and chest, with scarring. The trial court overruled defendant's numerous motions for judgment and submitted the case to a jury. The jury returned a verdict for the plaintiff.

Plaintiff's cause of action is based on the breach of an express warranty. He claims he is entitled to recover if he proves the product did not function as warranted and damage resulted therefrom.

When a manufacturer places a product on the market he impliedly warrants that the product is fit and suitable for the purposes it was sold. Further, that the product is safe and will not cause harm or injury to any person using the same in a normal manner. This is the obligation imposed on the manufacturer by operation of law in the interest of protecting the public.

In the highly competitive world of marketing and selling, manufacturers must seek and explore methods of increasing the sale of their products. One of these methods is the use of many forms of advertising which may include statements that their products will perform or not perform in a certain way. If pertinent, the advertising may claim certain safety features that assure a purchaser that the product will operate in a manner on which the purchaser can rely and no injury will occur.

These warranties are express rather than implied. A product so marketed is vested with implied warranties, but only such other warranties as the seller may express. Express warranties may extend to broader fields and to broader responsibility than those implied. They may extend to any degree for which the seller wishes to assume responsibility. To the extent they exceed the implied warranty, they supplant the implied warranty. The implied warranty may remain intact, but only to the extent it has not been preempted.

We attempted to clarify the relation between express warranty and implied warranty in Oliver Farm Equipment Co. v. Rich, 134 Kan. 23, 4 P.2d 465, stating:

'. . . There is a division of authority as to whether an express warranty of quality will exclude an implied warranty of fitness for the purpose for which the article is manufactured. We think the better rule is, which is supported by authority consistent with the decisions of this court, where the manufacturer sells a machine on a written order describing it, an express warranty of quality will not exclude an implied warranty that the machine will do the things which the description necessarily implies. There is nothing in the express warranty that excludes the obligation on the part of the appellee to deliver the engine described in the written order. . . .' (p. 28, 4 P.2d p. 468)

Plaintiff established that defendant had expressly warranted the handle would not give a false indication, i. e., indicate it was 'off' when in fact it was 'on'; that the interlock device would preclude opening the door unless the handle was in the 'off' position which in turn indicates: (a) when the handle is in the 'off' position no electricity will flow through the switch, and (b) the door will not open unless the handle is 'off' and in turn no electricity will flow through the...