Mississippi Butane Gas Systems v. Welch

• Decision Date: 13 March 1950
• Docket Number: No. 37397,37397
• Parties: MISSISSIPPI BUTANE GAS SYSTEMS, Inc. v. WELCH.
• Court: Mississippi Supreme Court

Page 262

45 So.2d 262

208 Miss. 637

MISSISSIPPI BUTANE GAS SYSTEMS, Inc. v. WELCH.

No. 37397.

Supreme Court of Mississippi, in Banc.

March 13, 1950.

Weaver Gore, Jackson, for appellant.

Geo. B. Grubbs, Mendenhall, for appellee.

SMITH, Justice.

At the beginning of the events, and all during the period involving the facts and circumstances of this case, appellant was a dealer in butane gas tanks, among other articles of merchandise, and appellee was a farmer living on his farm in Simpson County.

This action was filed in the circuit court by appellee seeking damages of $10,188.43 from appellant as a consequence of an alleged sale to him of a defective butane gas tank, and negligently refusing to repair or replace it, after notice. It is to be steadfastly borne in mind that there is no testimony in the record that appellants contracted with appellee to keep the tank in repair. The evidence, therefore, as to alleged subsequent leaks developing is pertinent only to the issue whether the tank, when its sale was completed, was defective, and negligently sold in that condition. The declaration is somewhat ambiguous in that it seems to embody both an action ex contractu on an implied breach of warranty of sale and ex delicto for negligence. Faced with that situation, appellant filed a motion for the court to require appellee to elect which he would pursue. While the actual ruling of the court does not appear in the record in haec verba, it does sufficiently appear that the element of breach of warranty was eliminated by the court, and the case was tried as one of a negligent sale of a defective butane gas tank to appellee, which he charged appellant failed to repair, and, therefore, ruined his well of water for domestic use; and a new well subsequently dug for the same purpose; compelling him to haul water from a neighbor's place, as well as to take his cattle there likewise for watering; that his farm depreciated heavily in value; and he was forced to buy extraordinary amounts of butane gas--all because some months after the purchase and installation of the tank, it sprang a leak.

It was indispensable to appellee's theory on which the action was brought and tried that appellants knew, or, by the exercise of reasonable care, should have known, that the tank was defective at the date of its sale and delivery--if in fact it was defective at all--and negligently sold it to appellee, in such condition. Certainly, if it were not defective at all when sold and delivered, then, in that event, there was no justiciable right of action.

At the conclusion of all of the testimony, appellant requested that the jury be peremptorily instructed to find for it, and this motion was overruled, the jury subsequently bringing in a verdict of $2,000 for appellee. Motion for new trial was overruled, and the case appealed here with numerous assignments of error. However, in view of the conclusion we have reached, it is useful to discuss only one aspect of the trial. Was the lower court in error, when appellant's motion, supra, was overruled? If so, no other point need be considered. However, it is not to be assumed that thereby we are overruling other assignments of error that may have merit. We pretermit them.

The important and pertinent facts in the case follow. On October 30, 1945, appellee was living in his farm home and purchased the tank from appellants, making a down payment. However, delivery was not made at once because appellants at the time had none in stock. In December 1945, the tank was delivered and installed, and the trial court fixed that date as the inception of the claim of damages,--in other words, the completion of the sale by delivery. Appellee had appellant to install it within twelve feet of a well from which water was drawn for his household needs.

Appellant obtained the tank from the Delta Tank Manufacturing Company of Baton Rouge, La., shown in the record without contradiction to be one of the best manufacturers of such tanks. Appellant had bought from them and resold to its customers theretofore, some eight or nine hundred of these tanks without incurring trouble or complaint. As required by law, the tank had been inspected by a representative of the Motor Vehicle Commission. In this regard, a former inspector for the Motor Vehicle Comptroller of Mississippi testified that he could not recall ever finding any leaks in tanks manufactured by the Delta Company. As a result of the inspection of this particular tank by the State inspector, it was tagged by the State. This tag certified that it was approved for sale and installation in Mississippi, in other words, free from defects. In addition, at or about the same time, an inspector for an insurance company which issued policies of insurance on such tanks, inspected it from that angle, and pronounced it acceptable for insurance.

Nevertheless, appellee contended, and testified, that the tank was defective because some months after installation the water in his well began to taste bad and smell like gas. This he reported to appellant, and a State inspector and one of appellant's employees made an inspection of the tank and applied a mercury test. However, no leak was discovered. In the meantime, appellee continued to use the tank and the water from the well. A considerable time later, some of the water was sent to State College and another specimen was also thereafter sent there for chemical analysis. The chemist refused to swear there was butane contamination, although he said there might have been some in the first specimen submitted. Appellee bored a new well within thirty feet of the tank, and overnight, appellee offered testimony to show, it too became contaminated, which, he said, compelled him to haul water from a neighbor, but he kept on using the tank. On June 20, 1947, after another complaint to appellant, its employee made another inspection of the tank, and found no leak, although he made a minor repair to a valve, in no sense a defect in the tank. It is to be noted that this was approximately a year and a half after the delivery and installation of the tank in December 1945. Appellee continued to use the tank, until September 13, 1948, nearly three years after delivery, when it was condemned by the State inspector for a small leak in the shell. As an indication of how diminutive the leak was, when condemned the tank contained about seventy-five gallons of butane on that date. At the trial of this case, March 22, 1949, approximately six months later, it still contained thirty-seven gallons.

After appellee's second complaint in 1947, appellant, according to its evidence, offered to repair the tank or give appellee another one, if it needed repairs or if it could not be repaired, respectively, in order to satisfy him, but without legal obligation to do so, as indicated in the record. This offer appellee rejected. This, however, is not of substantial importance on the real issue in the case, and that is, was appellant liable in damages to appellee for having sold him a defective butane tank? The only effect on the issue, as we see it, of the subsequently developed leaks, taking appellee's evidence as true, is that if the tank were defective, it was a latent defect, not discoverable to appellant by a reasonable...