Moran Junior College v. Standard Oil Co. of California

• Decision Date: 07 December 1935
• Docket Number: 25824.
• Citation: 52 P.2d 342,184 Wash. 543
• Parties: MORAN JUNIOR COLLEGE v. STANDARD OIL CO. OF CALIFORNIA et al.
• Court: Washington Supreme Court

52 P.2d 342

184 Wash. 543

MORAN JUNIOR COLLEGE v. STANDARD OIL CO. OF CALIFORNIA et al.

No. 25824.

Supreme Court of Washington

December 7, 1935

Department 2.

Appeal from Superior Court, Kitsap County; H. G. Sutten, Judge.

Action by Moran Junior College against the Standard Oil Company of California and others. From a judgment of dismissal plaintiff appeals.

Affirmed.

Allen Froude & Hilen, of Seattle, for appellant.

Battle Hulbert, Helsell & Bettens, of Seattle, for respondents.

HOLCOMBE Justice.

This action was instituted by appellant against respondents; the company as the seller, and the other respondent as its agent. At the conclusion of all of the evidence on behalf of appellant, the trial court granted a motion by respondents for a nonsuit, and dismissed the action.

Appellant is a nonprofit corporation operating a junior college at Rolling Bay on Bainbridge Island. Prior to the opening of the school year of 1932-1933, it was decided to equip a science laboratory and classroom in the basement of one of its buildings near the beach. The basement floor was of concrete and sloped approximately a foot in the width of the building. All of the construction work in equiping the laboratory was done by and under the direction of one Squance, maintenance man for appellant, for about 18 years. He qualified as a carpenter, plumber, and heating man. To get a level floor he put 4"'X12"' joists in over the concrete floor. Notches were cut in these joists to accommodate the various pipes that would be used in the laboratory and classroom, such as hot and cold water, gas, air, and vacuum. Then a 2-inch wooden floor was laid upon these joists, and on top of that an inch and a half of concrete, which formed the floor of the laboratory and classroom. This floor was about 6 inches above the original basement floor at one side of the building and about 18 inches at the other side. The space between the two floors was inclosed on all sides by concrete walls, but there were two openings in the wall between the inclosed space and the furnace room. One was an 8-inch hole to permit water to drain into a sump in the furnace room, and the other was a 3-inch hole through which ran a 2-inch pipe to carry away the water which a pump lifted from the sump. The pipe ran through the inclosed space between the floors, and discharged the water at the other end of, and cutside, the building. The pump was operated by an electric motor which went on and off automatically by means of a float in the sump. When the water reached a certain height, the float caused the pump to 'kick on,' and when it dropped to a certain point it 'kicked off.' The motor was going on and off about ever 15 minutes between November 4 and 9, 1932.

William E. Ward was employed by the college as a teacher of high school and college chemistry for the school year of 1932-1933, and was also a teacher of other science subjects. He was a man of 9 years' experience, familiar with the uses of gases, knew their highly inflammable character, and that escaping gas released into a chamber containing air formed a highly combustible and explosive mixture.

Ward testified that he had taught chemistry for eight years; that when he arrived at Moran in the fall of 1932, the laboratory for the science course was not equipped, and it was part of his duty to select the equipment and apparatus and to choose the type of gas to be installed. While in Seattle, he went to the office of respondent the oil company which manufactured Flamo gas. He explained their purposes and needs, and two or three days later respondent Allison came out and went over the building. The pipes for the gas had been installed Before Ward arrived, and the floor built over the pipes, and the end of the pipes came up through the floor to the outlets where they would be connected with the Bunsen burners on the laboratory table. Allison saw the pipes and installation that then existed, asked several questions about how they were put in, the manner in which they were constructed, about which Ward knew nothing and referred him to Squance, the maintenance man, for information as to the installation of pipes and work of that nature. Squance explained how the pipes had been put in, and Allison said it would be all right. When asked his opinion about the size of the pipe, Allison said the usual size was larger than that, and that he would recommend larger pipes, but since it would be necessary to tear up the whole floor to put it in, that under the circumstances it would, perhaps, be better to leave the existing pipes; that he rocommended half-inch pipe along the laboratory table, as that would give more pressure.

Squance told Allison that the pipes underneath the floor were all new and sealed with white lead. Squance freely admits that all Allison knew about the condition of the pipes was what Squance told him. Allison told Ward Squance that the Flamo set must be installed outside of the building. The contract was then signed by appellant, calling for the delivery to it of a Standard Flamo dispensing set called 'Flamo Equipment.' Appellant agreed with Allison that it would install an additional pipe from the Flamo set into the building to connect with the pipes rising from the floor in a closet. A half-inch pipe line was later installed by Squance and a shut-off valve was placed in the closet between the new half-inch pipe and the quarter-inch pipe which ran under the floor of the basement.

In the contract signed by the parties is the following clause: '* * * Company [Standard Oil Company of California] shall not be liable for any loss or damage to persons or property arising out of or in any way connected with the use and/or installation of said equipment and/or Flamo cylinders and/or Flamo, due to leakage, fire, or other cause.'

On October 19, 1932, the company delivered a Flamo set to appellant, and it was installed on the north and outside of the building. The set consists of a metal cabinet containing two cylindrical tanks about 4 feet in height and 10 to 12 inches in diameter, with an outlet on the top, valves, and a cutoff to be connected with the pipe. On the set is a disc called a regulatory and a gauge above that; there are valves on the top of each cylinder to turn the gas on and off. It was explained to Ward and Squance that the regulator reduced the pressure from high in the cylinder to low in the line. After the Flamo set had been installed, Squance proceeded to connect it with the quarter-inch pipe end in the closet.

On Friday, November 4, 1932, the college had finished installing the necessary piping, and the gas was connected with Bunsen burners on the laboratory table. There were four burners on each side of the table. Ward tried out the burners, and could only get about an inch of flame. The outlet of the Bunsen burner was not much larger than the lead in a pencil. He then tried out an old burner which had an opening about three-eighths of an inch in diameter and got a flame 2 or 3 feet high.

Ward said he then though there might be a leak. The gas was on for about an hour. He then turned it off at the cut-off in the closet, and Squance turned it off at the service cock in the cabinet outside of the building and gave the key to the cabinet to Ward. The gas was not turned on again until Wednesday, November 9, at about 10 a. m.

Appellant telephoned the office of the company at Winslow, complained only of lack of pressure, and requested that an expert be sent. Several calls were placed; appellant showing impatience at the delay in getting an expert to check the equipment; the company saying that it had been too busy to send a man. Finally, one Meharry was sent on Wednesday, November 9, at 10 a. m. He frankly confessed that he was not an expert, did not know anything about Flamo equipment, but had brought with him a new regulator and gauge and offered to, and did, disconnect the regulator then in use, and substituted a new regulatory and gauge. A test was then made of the Bunsen burners, and no improvement in the pressure was found. Meharry then shut off the service cock in the outside cabinet, locked it, and handed Squance the key. Meharry told him he did not know what the matter was, but would send some expert who would be able to tell. Squance handed the key to Ward, and said he did not open the cabinet again. Ward said he did, trying out the Bunsen burners again on Wednesday afternoon for not to exceed 15 minutes. He did it for the purpose of showing the students how weak the flame was. About 4:30 p. m. that day an explosion occurred which wrecked one end of the building, seriously damaged the rest of it, and destroyed most of the equipment, apparatus, and laboratory.

One witness for appellant, an architect, testified that the explosion came from beneath the basement floor. Squance testified that the Flamo man who installed it outside the building showed them how to operate it. He said to turn on the valve and then watch the indicator; it would run up to six ounces and stop right there. The man also said: 'If you get any leaks whatever in the lines, the gauge will drop back.' Squance said he understood from that explanation that when there was nothing open and the gauge...