Kasey v. Suburban Gas Heat of Kennewick, Inc., 35955

• Decision Date: 13 September 1962
• Docket Number: No. 35955,35955
• Citation: 374 P.2d 549,60 Wn.2d 468
• Court: Washington Supreme Court
• Parties: Edward A. KASEY and Howard L. Brightman, d/b/a Northwest Laboratories & Glass Supplies, Respondents, v. SUBURBAN GAS HEAT OF KENNEWICK, INC., a corporation, Appellant. Lee LEONARD and Lillian Leonard, his wife, Respondents, v. Edward A. KASEY and Howard L. Brightman, d/b/a Northwest Laboratories & Glass Supplies, Respondents, Suburban Gas Heat of Kennewick, Inc., a corporation, Appellant.

Page 468

60 Wn.2d 468

374 P.2d 549

Edward A. KASEY and Howard L. Brightman, d/b/a Northwest

Laboratories & Glass Supplies, Respondents, v. SUBURBAN GAS HEAT OF KENNEWICK, INC., a corporation, Appellant.

Lee LEONARD and Lillian Leonard, his wife, Respondents, v. Edward A. KASEY and Howard L. Brightman, d/b/a Northwest

Laboratories & Glass Supplies, Respondents,

Suburban Gas Heat of Kennewick, Inc., a corporation, Appellant.

No. 35955.

Supreme Court of Washington, Department 1.

Sept. 13, 1962.

Rehearing Denied Nov. 1, 1962.

Cheney & Hutcheson, Yakima, for appellant.

Loney, Westland & Koontz, Kennewick, for Kasey and Brightman.

Horton & Wilkins, Kennewick, for Leonards.

HILL, Judge.

This is a propane gas explosion case. The explosion wrecked the frame building which housed the glass manufacturing plant of Edward A. Kasey and Howard L. Brightman, doing business as Northwest Laboratories & Glass Supplies and hereinafter referred to as 'Northwest.'

The propane gas was furnished by Suburban Gas Heat of Kennewick, Inc., hereinafter referred to as 'Suburban.'

Northwest sued Suburban, and the case was submitted to the jury on two theories: (1) negligence in delivering liquified petroleum gas (propane) containing excessive water which caused malfunctioning of the controls in Northwest's floor furnace, which, together with work on the pilot light and generator (improperly done by Suburban's service man), permitted propane gas to escape into the building; and (2) breach of implied warranty of fitness for the purpose intended, Northwest having relied on the skill and judgment of Suburban, and the gas delivered having contained dangerous properties, i. e., an overabundance of moisture.

The jury brought in a verdict for Northwest in the sum of $10,500, and judgment was entered in that amount.

The Leonards, who owned the Owl Cafe situated almost two hundred feet away from the glass plant, sued both Suburban and Northwest on the theory of negligence, relying on res ipsa loquitur; and the jury brought in a verdict against Suburban for $8,500, of which more than $7,000 must have been for Mrs. Leonard's emotional shock, as the total property damage accounted for only $852.67 and the medical expense for only a few hundred more. Judgment was entered on the verdict.

Suburban appeals from both judgments. The cases were consolidated for trial and are consolidated on this appeal.

Suburban urges that there was no proof of negligence. There was evidence from which the jury could find that there was water in the propane gas, which caused the malfunctioning of the controls in Northwest's gas furnace and allowed gas to escape. There was also evidence from which the jury could find that Suburban's repair man had improperly placed and attached the pilot light, which was also found to be partially plugged by metal particles, and consequently the escaping gas was not ignited in the furnace.

All of this was vigorously disputed by Suburban. Our examination of the record shows substantial evidence to sustain findings of negligence on the issue of water in the propane gas and on the issue of defective workmanship by Suburban's repair man.

Suburban urges that there was no proof that such negligence, if established, was the proximate cause of the explosion. We cannot agree. There was evidence, particularly that of the expert J. M. Knisely, from which the jury could have found that the negligence referred to was the cause of the explosion. His testimony also countered Suburban's claim that the cause was the negligence of Northwest's own employees in failing to shut off the gas at certain torch valves where they had worked the evening before the explosion

Negligence and proximate cause being established by substantial evidence, this court will not substitute its judgment for that of the jury. Tabert v. Zier (1962), 159 Wash.Dec. 534, 368 P.2d 685.

Suburban, however, urged that if there was water in the propane and if it was the proximate cause of the explosion, it was not responsible as it was only a dealer and not a manufacturer.

It is not disputed that the general rule is as Suburban contends: That a retailer is not ordinarily responsible for latent defects in a manufactured product. Ringstad v. I. Magnin & Co. (1952), 39 Wash.2d 923, 239 P.2d 848.

Had Suburban been able to point to one of its manufacturers and say that 'Standard,' 'Texaco,' or some other company had supplied the propane gas in question, a very different question would be presented. Unfortunately, for Suburban, it mixed the gases from various suppliers and thus eliminated the possibility of holding any of the actual manufacturers. It also sold under Suburban's name. Under the circumstances of this case, Suburban became legally responsible as a manufacturer.

Suburban urges that the trial court erred in submitting the case to the jury on the theory that there was an implied warranty of fitness.

Its first contention on this phase of the case is that it was engaged in furnishing a public service and not in the sale of personal property within the meaning of the warranty provisions of the uniform sales act. We find no cases supporting such a distinction.

Suburban places its reliance on Boyle v. King County (1955), 46 Wash.2d 428, 282 P.2d 261, in which we held that a contract to collect garbage was a personal service contract. In that case plaintiff paid King County $40 a month for the privilege of removing the garbage from the county's sanatorium, which garbage he fed to his hogs--many of whom died from the effects of poison negligently placed or permitted to be placed in the garbage. When he sought damages for the loss of his hogs, there was a judgment for the county. The plaintiff appealed, relying on an implied warranty of fitness for hog feed. We held that the contract for garbage removal was not a sale. We there pointed out that the principal reason for not holding the contract to involve a sale of goods was that there was no relation

'* * * between the $40 per month paid for the privilege of removing the garbage and the value of the garbage, the amount of which would vary from month to month. It is questionable whether the transaction can reasonably be construed as a sale. * * *' (p. 433, 282 P.2d p. 264.)

That case is readily distinguished. In the present case there is no contention that the payment was not on the basis of the amount of propane gas delivered, and it cannot be seriously argued that Suburban was not aware of the purpose for which the gas was purchased.

Suburban argues that Northwest never relied on Suburban's skill and judgment in making the purchases; and that if Northwest relied on the skill of anyone, other than itself, it was upon the skill and judgment of the manufacturers of the propane gas. As we have indicated, Suburban stood in the place of the manufacturers and was, for all practical purposes, the manufacturer.

The act of purchase and use of a product manufactured for that use is evidence of reliance on the skill and judgment of the manufacturer; and, in the absence of evidence to the contrary, meets the requirement of reliance. As we said in Baum v. Murray (1945), 23 Wash.2d 890, 897, 162 P.2d 801, 805:

'* * * regardless of what we may ultimately decide when a case is presented involving a retailer only, the manufacturer-retailer stands in a different position, as he is the one who is in the best position to ascertain and know the quality and fitness for purpose of the food he manufactures and sells, and it necessarily follows that purchasers of food put up in sealed containers, as the sausage in question was (encased in sausage skin) must and do rely upon his skill and judgment.'

While that was a food case, the quotation is applicable to the present case. Northwest had no way of determining whether the propane gas delivered to it was fit for the use intended, but necessarily had to rely upon Suburban's skill and judgment.

Suburban argues that the product is generally known by its trade name 'propane gas,' and comes within RCW 63.04.160(4):

'In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.'

What Suburban overlooks, in the argument, is that what it contracted to sell and deliver was propane gas and that what it sold and delivered was propane gas with water in it (or so the jury must have found). We are not concerned with damages caused by propane gas, but with damages resulting from the fact that there was water in the propane gas sold by Suburban. As said in Balthazor v. B & B Boiler & Supply Co. (1950), 169 Kan. 188, 192, 217 P.2d 906, 909,

'In the case we are considering propane is a name given to a liquid which is really natural gas compressed at a low temperature and when released by means of the regulator through a small vent becomes an inflammable gas which flows through pipes to stoves. When a purchaser buys propane he buys it to burn and it can only be burned if it escapes through a regulator such as we have here. There was substantial evidence that propane when it is manufactured is perfectly dry, that is, it has no moisture content. What plaintiffs bought was a perfectly dry product with no moisture content whatever, while what was delivered to them was gas with water in it. * * *'

Suburban urges that timely notice of breach of warranty was not given. This contention is founded upon another section of the Uniform Sales Act, ¹ RCW 63.04.500, which provides...