Nettles v. Imperial Distributors, Inc.

• Decision Date: 16 January 1968
• Docket Number: No. 12637,12637
• Citation: 152 W.Va. 9,159 S.E.2d 206
• Court: West Virginia Supreme Court
• Parties: Jack L. NETTLES and Frances Nettles v. IMPERIAL DISTRIBUTORS, INC.

Page 206

159 S.E.2d 206

152 W.Va. 9

Jack L. NETTLES and Frances Nettles v. IMPERIAL DISTRIBUTORS, INC.

No. 12637.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 1967.

Decided Jan. 16, 1968.

Syllabus by the Court

1. In a case in which the defendant, a retail dealer in mobile homes, sold to the plaintiffs, by a written contract, a mobile home equipped with various items of equipment and accessories, including a natural gas cooking stove from which there was absent a part of the stove mechanism, known as an adapter, which adapter was designed to carry natural gas to the burners of the stove, the absence of which adapter permitted natural gas to escape and to cause a violent explosion directly resulting in property damage to the mobile home and personal injuries to one of the plaintiffs when the plaintiffs undertook to light the stove in a normal way for cooking purposes, the written contract of sale being silent on the subject of warranties, there was a breach of an implied warranty of merchantability for which the plaintiffs were entitled to maintain a civil action for recovery for the property damage and personal injuries thus caused.

2. Where a chattel is sold and purchased by a written contract which is silent on the subject to warranties, the purchaser is precluded by the parol evidence rule from proving an express oral warranty made by the seller prior to or contemporaneously with the execution of the written contract.

3. The fact that the contract for the sale of a chattel is in writing does not necessarily preclude a warranty implied by law.

4. 'An unambiguous written agreement entered into as the result of verbal negotiations will, in the absence of a showing of fraud or mistake, be conclusively presumed to represent the final agreement of the parties thereto, and parol evidence may not be admitted to prove that the agreement of the parties was different from that expressed in such writing.' Point 2 Syllabus, Wyckoff v. Painter, 145 W.Va. 310, 115 S.E.2d 80.

5. Whether the purchasers of a chattel should reasonably have discovered a defect therein before undertaking to use it for its intended purpose and whether, therefore, they should be precluded from recovering damages from the seller for personal injuries and property damage sustained by them as a consequence of such defect in their effort to make a proper use of the chattel may, in certain circumstances, present a proper question of fact for decision by the jury.

Charles W. Caldwell, Charleston, for appellants.

Key, Casto & Chaney, George S. Sharp, Charleston, for appellees.

CALHOUN, Judge.

This case involves an action instituted in the Court of Common Pleas of Kanawha County by Jack L. Nettles and Frances Nettles, husband and wife, as plaintiffs, against Imperial Distributors, Inc., (and against two other corporations which were dismissed as defendants before the case was tried), for recovery of damages for personal injuries and property damage caused to the plaintiffs as a consequence of an explosion of a natural gas cooking range or stove which was a part of a mobile home, known as a Concord Mobile Home, purchased by the plaintiffs on or about April 25, 1963, from Imperial Distributors, Inc., the defendant, a retail dealer engaged in the sale of mobile homes of that make and character at Charleston, West Virginia.

The plaintiffs sued jointly for breach of contract and for damages caused to the mobile home. Frances Nettles sued for recovery of damages for personal injuries sustained by her. Jack L. Nettles sued for recovery of medical expenses incurred by him in connection with the treatment of his wife's personal injuries and for the consequent loss of her services.

The jury returned a verdict for $1,000 for the plaintiffs on their joint claim for damage to the mobile home; a verdict in favor of Frances Nettles in the sum of $3,500 and a verdict in favor of Jack L. Nettles for $500. Judgments were entered on these several verdicts by the trial court against Imperial Distributors, Inc.

On appeal by the defendant to the circuit Court of Kanawha County, sitting as an intermediate appellate court, the judgments were reversed, the verdicts were set aside, and the case was remanded to the court of common pleas for a new trial on certain issues specified in a written opinion of the circuit court which was made a part of the record. From that judgment of the circuit court, the plaintiffs have been granted an appeal to this Court. The case has been submitted for decision on the record and upon written briefs and oral argument of counsel.

The circuit court reversed the judgments rendered in the trial court solely because of the giving of Plaintiffs' Instruction No. 1, as amended, over the objection of the defendant. From the briefs and oral argument of counsel, we are of the opinion that the action of the trial court in giving that instruction involves, in the main, the legal questions presented for decision on this appeal. Generally speaking, the questions presented for decision on this appeal involve the application, on the facts of this case, of legal principles pertaining to implied warranties, the doctrine of caveat emptor and the parol evidence rule. Similar questions were presented by instructions offered in behalf of the defendant and refused by the trial court. Plaintiffs' Instruction No. 1, as amended, is as follows:

'The Court instructs the jury that in the sale of personal property there is an implied warranty that the article furnished is a merchantable article of the kind purchased, and if you find from the evidence in this case that there was a missing adapter or an open gas pipe in the oven of the stove of the trailer sold by the defendant, Imperial Distributors, Inc., to the plaintiffs, then such defect was a breach of the implied warranty. And if you find from a preponderance of the evidence that as a direct and proximate result thereof the plaintiff, Frances Nettles, received the injuries testified to in this case, then you may return a verdict for her for the injuries and damages sustained by her, unless you should also find that she was guilty of some negligence that contributed proximately thereto, but not to exceed the sum of $50,000.00, the amount named in the complaint filed herein.'

The trial court also gave, over defense objection, Plaintiffs' Instruction No. 2, as amended. The chief objection to this instruction is that it violates the parol evidence rule. The instruction is as follows:

'The Court instructs the jury that if you believe from a preponderance of the evidence in this case that the agent or agents of the defendant, Imperial Distributors, Inc., advised the plaintiffs that the trailer sold by said defendant to said plaintiffs was a completed package, or was ready for use or had been checked out, or words of similar meaning, or that the plaintiffs did not have to do anything before using it, then you are further instructed that the plaintiffs had a right to rely on such statements and representations. And if you find that the plaintiff, Frances Nettles, was injured by reason of the defect in the stove, such as the missing adapter, then you may return a verdict for her for the injuries and damages suffered by her, as testified to in the case, unless you shall further believe from a preponderance of the evidence that plaintif, Frances Nettles, was guilty of negligence proximately causing or proximately contributing to her said injuries.'

The mobile home, also referred to in the case as a trailer or as a house trailer, was sold to the plaintiffs by a conditional sales contract dated April 25, 1963, which recites a total purchase price of $6,822.20 and a cash down payment of $2,000, the balance of the purchase price being payable in monthly installments of $80.37 each. The conditional sales contract contains the following language: '* * * together with all equipment and accessories thereon and therein, all of which are included in the term 'vehicle' as used herein, * * *.' The conditional sales contract was completed by typing certain facts and figures in a printed form. It contains no express warranty of any sort. While the mobile home includes various items of 'equipment and accessories', including the natural gas cooking stove, none of such items is referred to or described specifically or referred to expressly in the contract.

The complaint, as amended, alleges the terms of the contract; that the defendant 'by its agents, at the time of said sale stated to the plaintiffs and covenanted and warranted with the plaintiffs that said trailer was a completed product; that the only thing the plaintiffs had to do was to move into it, and that it would be checked out for complete use by the plaintiffs without any further inspection or examination.' The complaint further alleges '* * * that on the 7th day of May, 1963, after the defendant had located said trailer and advised the plaintiffs that they could move into it, the plaintiffs went to the trailer, turned on the gas valve on the outside of the trailer, the connections all having been made by the defendant, and lighted the burners on top of the stove. A moment or two thereafter there was an explosion, the stove being blown apart, the explosion being caused by the failure of the defendant to make proper connections of the gas fittings in the oven of the stove, that is, the gas line feeding to the burners of the oven was not connected and there was entirely absent from the stove at this gas line connection a small adapter, which was necessary to connect the gas pipe leading to the burners of the oven, and as a result of this gas line not being connected and in the absence of the adapter, the gas in the oven exploded from gas flames of the burners on top of the stove, and as a direct and proximate result of the negligence and wrongful acts of the defendant, * * *', plaintiffs sustained the damages for which they seek recovery.

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