Leininger v. Stearns-Roger Mfg. Co.
| Decision Date | 12 July 1965 |
| Docket Number | No. 10193,STEARNS-ROGER,10193 |
| Citation | 17 Utah 2d 37,404 P.2d 33 |
| Parties | d 37 Archie LEININGER, Plaintiff and Appellant, v.MANUFACTURING COMPANY, a corporation, XYZ Company, a corporation, X, Y and Z, a co-partnership, Does I through V, Defendants and Respondents. |
| Court | Utah Supreme Court |
Draper, Sandack & Saperstein, Salt Lake City, for plaintiff and appellant.
Elton & Moore, Salt Lake City, for defendants and respondents.
The plaintiff, Archie Leininger, while an employee of Texas Zinc Minerals Corporation, was injured in the course of his employment by the explosion of an exhaust fan that he was dismantling, and he instituted suit for damages against the defendant, Stearns-Roger Manufacturing Company, an independent contractor which had supplied the fan almost four years prior thereto. The trial court granted the defendant's motion for summary judgment and dismissed the action. Plaintiff appeals. Judgment affirmed. Costs to respondent.
On April 18, 1956, Texas-Zinc contracted for the construction by Stearns-Roger, as general contractor, of a uranium ore processing plant near Mexican Hat, Utah. The contract contemplated that Texas-Zinc would, in some instances, specify the installation of certain items of equipment of its own selection; and in this connection the contract provided as follows:
Article 4. CONTRACTOR'S DUTIES AND RESPONSIBILITIES: This Contract shall be responsible for the execution and completion of the work in accordance with the provisions of this contract. The Contractor undertakes to turn over to the Company a completed uranium ore processing plant and copper concentrating plant, including appurtenances thereto and the said additional surface facilities, ready for operation in a manner satisfactory to the Company; provided, however, that the Contractor shall have no responsibility for the adequacy of certain major items of equipment selected solely by the Company where the same are properly installed and functioning in accordance with the manufacturers' representations.
Texas-Zinc, through its chief chemist, specified the installation by Stearns-Roger of two Durco type B-124 corrosion resistant exhaust fans manufactured by the Duriron Company, Inc. of Dayton, Ohio, to be installed in its chemical laboratory. These fans were received from the manufacturer in December 1956, fully assembled and ready for operation, and were placed by Stearns-Roger in their allotted positions at the chemical laboratory assay plant of Texas-Zinc, pursuant to plans and specifications.
In 1957 Stearns-Roger completed its contract for the construction of the uranium ore processing plant and same was accepted by Texas-Zinc. In September 1960 the plaintiff, an employee of Texas-Zinc, in the course of his employment, while removing the sealing compound from one of the Durco fans, was injured when the fan exploded.
The cause of the unusual explosion, by uncontroverted evidence, was the use by the manufacturer of the fan of an organic sealer containing a litharge and glycerin compound which sealed the rear face plate housing the blower shaft on the fan. The explosion resulted from the formation, over a period of almost four years' use, of explosive compounds developed by reactions between perchloric acid fumes and the litharge and glycerin sealing agent.
It is plaintiff's contention that the trial court erred in holding that the defendant contractor was not liable for the work after its completion and acceptance by Texas-Zinc, the contractee; and that even though Texas-Zinc selected and requested the specific Durco type fans, the defendant contractor had the duty to test and check the sealing compound used by the manufacturer in the construction of the fans. Plaintiff further contends that even though Texas-Zinc prior to plaintiff's injury had knowledge of prior explosions of such Durco fans, its knowledge was not such intervening cause as to relieve the defendant contractor from liability; and that the trial court erred by its refusal to submit the case to a jury on the theories of defendant contractor's negligence and alleged breach of warranty.
Both the plaintiff and the defendant cite the cases of Berg v. Otis Elevator Co., 64 Utah 518, 231 P. 832; and Sutton v. Otis Elevator Co., 68 Utah 85, 249 P. 437; which cases involve the repair or maintenance of a passenger elevator by an independent contractor as distinguished from the instant case wherein the defendant contractor was entirely subject to Texas-Zinc's control in its choice of providing ventilating fans (namely Durco fans); did not exercise any independent judgment in the selection of such fans; and received the fans, as manufactured by the Duriron Company, delivered in a fully assembled condition, requiring no more than routine placement in designated locations and electrical connection to place them in full operation. There was nothing to indicate that the fans were inherently dangerous; they were delivered without visible defects; they functioned to the complete satisfaction of Texas-Zinc; there was nothing to put the defendant contractor on inquiry or notice so as to impose upon it the duty of completely dismantling the fans and analyzing all of their components to ascertain if, perhaps, they harbored some remotely possible unsuitable component that rendered them unsafe for their intended use. The instant case is not one of the contractee accepting an instrumentality constructed or repaired by the contractor according to a plan or design furnished by the contractee to the contractor; this is a case wherein the contractee, Texas-Zinc, selected and specifically required the securing and furnishing by the defendant contractor of a name-brand, fully operational instrumentality, the acceptance of which by the contractee, Texas-Zinc, was foreordained by its contract with Stearns-Roger, the defendant contractor. The defendant contractor, in the instant case, was a mere vehicle, a conduit through which the Durco fans passed; it did not design, sell or recommend the installation of such fans, and had no discretion in their selection; there was no claim of any act of negligence on defendant's part in the placement of the fans in the laboratory of Texas-Zinc pursuant to specifications; and neither did the defendant contractor have knowledge, actual or constructive, of the propensity of such type fans to explode following extended daily use and when in need of servicing.
This court is familiar with the general rule as to the non-liability of an independent contractor after the acceptance of the work by the owner, as well as with the exceptions to this rule and the so-called 'modern view.' 13 A.L.R.2d 195; 58 A.L.R.2d 869....
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Board of Educ. of City of Clifton v. W.R. Grace Corp.
...contractor who builds single structures one at a time under plans furnished by the owners. In Leininger v. Stearns-Roger Manufacturing Company, 17 Utah 2d 37, 404 P.2d 33 (1965), the Supreme Court affirmed the granting of summary judgment for defendant, Stearns-Roger Manufacturing Company (......
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...Johnson to have been a distributor and seller, as well as an installer. See note 5, supra. Similarly, in Leininger v. Stearns-Roger Mfg. Co., 17 Utah 2d 37, 404 P.2d 33 (1965), where summary judgment was granted to the installer of an industrial fan that exploded years later due to a defect......
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