Nelson v. Anderson, s. 36590
| Decision Date | 04 November 1955 |
| Docket Number | 36591,Nos. 36590,s. 36590 |
| Parties | Walfred NELSON and Northwestern Insurance Company, Respondents, v. Theodore T. ANDERSON and Arthur A. Anderson, d.b.a. Anderson Bros. Plumbing& Heating Company, and Grudem Brothers Company, Inc., Appellants. NORTHWESTERN INSURANCE COMPANY and First National Insurance Company, Respondents. v. Theodore T. ANDERSON and Arthur A. Anderson, d.b.a. Anderson Bros. Plumbing& Heating Co., and Grudem Brothers Co., Inc., Appellants. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. Where the parties stipulate that, in the event the jury returns a verdict against a contractor primarily liable in an action based on a breach of an implied warranty, the court may enter judgment against a subcontractor liable over to the principal contractor for such amount as he may have to pay, it was not error to submit case to the jury on the theory of a breach of implied warranty rather than negligence.
2. In an action based on a breach of an implied warranty it was error to refuse to submit contributory negligence of buyer insofar as his right to recover consequential damages is concerned.
3. The seller of equipment is not liable for consequential damages in an action based on a breach of implied warranty if the buyer continues to use the equipment after he knows that it is not functioning properly.
4. Where the only evidence of breach of implied warranty is the opinion of an expert witness that a pipe which he installed should have been installed by defendants, the defendants were entitled to an instruction that, unless the jury found that the damage claimed by plaintiffs was caused by failure to install such pipe, there could be no recovery.
Meagher, Geer, Markham & Anderson, D. W. Nord and O. C. Adamson, Minneapolis, for appellants.
Robins, Davis & Lyons and Kenneth E. Tilsen, St. Paul, for respondents.
Appeals from an order denying defendants' motion for judgment nothwithstanding the verdict or in the alternative for a new trial.
Plaintiff Walfred Nelson is a builder by trade. In the fall of 1947 he began construction of an apartment building in the city of St. Paul. He let the contract for plumbing and heating to defendants Theodore T. Anderson and Arthur A. Anderson, doing business as Anderson Brothers Plumbing & Heating Company. This contract called for installation of an Enterprise oil burner among other things. Defendant Grudem Brothers Company, Inc., was the exclusive distributor of Enterprise oil burners in this territory. Anderson Brothers sublet the work of furnishing and installing the oil burner to Grudem Brothers. The installation was completed and the oil burner turned on sometime in September 1948.
The oil burner covered by this contract is one designed for use in commercial buildings. It is so designed that it may burn a heavy No. 5 or No. 6 oil, which must be preheated before it reaches the burner proper. It is conceded that it requires much more care than the ordinary burner used in family dwellings.
The evidence shows that there was considerable difficulty with the burner after it was first turned one. Between September 1948 and December 1 of the same year, 15 service calls were made by Grudem Brothers to start the burner and to make various adjustments on it.
On November 30, 1948, Nelson, who was still working on the building, left at the end of the day with the oil burner working properly. When he returned the next morning he found the boiler room full of smoke and soot. The boiler door was open and the burner was out. The smoke and soot had reached the upper floors of the building. He called his insurance agent, William H. Hite, who testified that they found oily dirt on the walls, ceilings, woodwork, and carpeting of the upper floors of the apartment building. No one testified as to what was done to put the burner back in operation, nor is there any evidence by any witness present on this occasion as to what caused the damage. The insurer made a settlement of the loss, and the building thereafter was renovated.
Nelson continued to use the burner, although the evidence shows that they continued to have trouble with it.
Early on the morning of January 2, 1952, Nelson had a call from one of his tenants informing him that the hall was full of smoke. He went to the apartment building and found the fire out and the boilerroom, laundry room, and halls full of smoke. He called the Kimball Company, who service oil burners. They sent out one Ward Ernest Holliday to the building. He testified that he found that wires adjacent to the burner were burned and that the bakelite terminal block within an enclosure to which these wires were fastened was also burned. He put in temporary wiring so that the burner could be started.
Richard Weatherston, an engineer familiar with this type of burner, was then called. He found the temporary wiring Holliday had installed, and he also found that the motor for the recirculating pump which keeps the oil moving was inoperative. There was no voltage present at the terminals to the electric preheater although the heater itself was all right. Weatherston fixed the pump on the burner and then installed a new line which he called a 'by-pass.' He testified that the purpose of this line was to have less oil dormant in the system when it was not running so that less oil would cool off and become too viscous. This would tend to make the oil vaporize more readily when introduced into the oil cup.
In order to understand the testimony of Weatherston it is necessary to have in mind the manner in which this oil burner functions. In view of the heavy type of oil used it is necessary to preheat the oil. There are two preheaters on the system, one of which consists of coils attached to the boiler through which hot water passes. When the burner is not operating, the oil continues on from this preheater to the tank and continues to recirculate constantly, whether the burner is on or off. When the burner starts, the burner pump draws oil from the circulating line into another electric preheater, which further preheats the oil. The oil then passes through a valve into the burner nozzle and from that point drops onto a circulating cone which is spinning at the rate of 3,500 revolutions per minute. Centrifugal force causes the oil to vaporize and thereby burn.
The only evidence in this case as to the cause of these two explosions is the expert testimony of Weatherston. Based on a hypothetical question, he testified that the 1948 incident happened because the Mercoid Visaflame operated erratically and because the oil delivered to the burner was cold. He said that the cause of the incident of January 1952 was the oil piping plus the inoperation of the electric preheater.
Part of the equipment called for by the contract with Grudem Brothers and Anderson Brothers and installed as part of the oil burner is a Mercoid Visaflame. This equipment is simply an electric eye so mounted that the light from the fire will shine on it when the burner is on. It is energized when the burner machinery starts to run, and, if the oil does not ignite so that it does not 'see' any flame, it shuts down the machine. If it gets dirty from soot or otherwise, it may shut off the motor even if there is a fire. The Mercoid Visaflame was taken out by Grudem Brothers in 1949 and a stack switch used instead. A stack switch is intended to accomplish the same purpose but is actuated by heat rather than light.
These actions were brought by the insurers who paid the damages resultinf from these two incidents and by Nelson to recover consequential damages, including loss of rent during the time that the building became untenantable. The jury returned verdicts in favor of plaintiffs against both defendants, and these appeals have been taken from an order denying defendants' blended motion for judgment notwithstanding the verdict or a new trial.
1. It is somewhat difficult to tell on what theory the court submitted the case to the jury. Prior to the court's instructions, the court and counsel had some discussion about the issues to be submitted, after which the court said:
The parties agreed that, if Anderson Brothers were liable, the court could enter judgment over against Grudem Brothers to indemnify Anderson Brothers. In its instructions the court said:
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