McCabe v. Boston Consol. Gas Co.

• Decision Date: 13 September 1943
• Citation: 314 Mass. 493,50 N.E.2d 640
• Parties: NORA J. MCCABE v. BOSTON CONSOLIDATED GAS COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 493

50 N.E.2d 640

NORA J. MCCABE v. BOSTON CONSOLIDATED GAS COMPANY.

Supreme Judicial Court of Massachusetts, Norfolk.

September 13, 1943

November 5, 1941.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, DOLAN, COX, & RONAN, JJ.

Negligence, Stove Dangerous article, Vendor, Res ipsa loquitur.

A gas stove was not an inherently dangerous article, and a finding of negligence of one, not the manufacturer, who sold and installed the stove and later at the purchaser's request examined it toward one injured by a subsequent explosion of it was not warranted in the absence of any evidence of the cause of the explosion, even if the injured person had a contractual relation with the seller; the doctrine res ipsa loquitur was not applicable.

CONTRACT OR TORT. Writ in the District Court of East Norfolk dated April 29 1939.

There was a finding for the defendant by Nagle, J. A report was ordered dismissed by the Appellate Division for the Southern District, and the plaintiff appealed.

In this court, the case was argued at the bar in November, 1941, before Field, C.J., Donahue, Qua, Dolan, & Ronan, JJ., and afterwards was submitted on briefs to all the Justices.

J. W. Blakeney, Jr., for the plaintiff. R. W. Cornell, for the defendant.

LUMMUS, J. In this action of contract or tort the plaintiff seeks to recover for personal injury and property damage sustained because of the explosion of a gas stove in the kitchen of her house at Quincy. On December 30, 1937, the plaintiff with her daughter Sadie went to the office of the defendant in Quincy and bought on conditional sale a gas stove from the defendant for $145. An old stove was taken at $20 in part payment, and a down payment of $25 was made. Sadie signed the memorandum of sale and the plaintiff did not sign. The defendant installed and regulated the stove in the plaintiff's kitchen about January 6, 1938. In addition to the usual gas burners and an oven, the stove contained a heating unit, regulated by a thermostat on the wall, for the purpose of heating the kitchen.

For about three weeks the stove appeared to operate properly. Then one day two loud noises were heard in the stove, and enamel chipped off and fell to the floor. The salesman who sold the stove was notified, and said that he would send a man to examine the stove and that if anything was wrong it would be corrected. He was told that the plaintiff "was scared of it." The next day men from the defendant came and apparently examined the stove, but did not repair it. The plaintiff continued to use the stove, including the heating unit. On February 3, 1938, the stove exploded, injuring the plaintiff and damaging her property.

After the explosion an employee of the defendant came, tightened a nut under the stove and put some soap on the joint. The heating unit was never used again, but the rest of the stove continued in use. The stove was not wholly paid for until May 28, 1938. The plaintiff produced as a witness a metallurgist who was familiar with the properties of brass, of which many of the fittings of the stove were made. He testified that "brass is subject to a very active type of corrosion, particularly in an atmosphere containing ammonia, including household or cleaning ammonia. Any atmosphere containing very minor traces of ammonia causes corrosion. In a brass pipe made up of a length of pipe and some connections, nuts, etc., the point on the pipe where such corrosion would be expected would be where the metal had been strained. Such straining would be caused by the tightening up of the nut to an excessive degree." The witness

"was unable to tell if the nut had been tightened excessively from observation because the joint was plastered with soap." He testified that when a piece of brass is strained it does not have any outward signs of strain. "When it is brought in contact with certain atmospheres, ammonia being one of them, a crack will develop with no other outward signs of corrosion. The crack will usually penetrate the brass and the brass springs out so that this type of corrosion is what is known as brushing; that piece splits into several pieces like a brush. If certain precautions are taken it is good practice to use brass pipe as a conduit for inflammable material. Such precaution should be that the brass is purchased with specifications which prohibit the possibility of getting strained brass. It should be tightened up in such a manner that it cannot become critically strained, and possibly should be painted. If the pipe is not painted, other precautions should be taken in the form of a notice attached to the pipe to see to it that ammonia is not brought in contact with it. There was no paint on any of the pipe connected with the heating unit."

After the plaintiff had introduced evidence of the foregoing, she rested, and the defendant also rested. The plaintiff presented six requests for rulings that were denied. We need not consider them, for the judge ruled...