Pastour v. Kolb Hardware, Inc.

• Decision Date: 09 December 1969
• Docket Number: No. 53224,53224
• Citation: 173 N.W.2d 116
• Parties: David PASTOUR and Doris Pastour, Appellees, v. KOLB HARDWARE, INC., and Thermogas Company, Appellants.
• Court: Iowa Supreme Court

Page 116

173 N.W.2d 116

David PASTOUR and Doris Pastour, Appellees, v. KOLB HARDWARE, INC., and Thermogas Company, Appellants.

No. 53224.

Supreme Court of Iowa.

Dec. 9, 1969.

Boyle & Schuler, Clear Lake, for Kolb Hardware, Inc., appellant.

Levinson, Bryant & Enabnit, Mason City, for Thermogas Co., appellant.

Hobson, Cady & Drew, Hampton, for appellees.

MOORE, Chief Justice.

This is an action at law against suppliers of liquid petroleum gas for damages to plaintiffs' farm home and contents on March 20, 1964 as a result of a high pressure fire which started in their kitchen stove. Defendants have appealed from judgment on verdict for plaintiffs. We affirm.

For approximately 20 years prior to March 20, 1964 plaintiffs, David and Doris Pastour, husband and wife, owned a farm two miles east of Alexander and occupied the seven room frame house located thereon. Their original kitchen stove which used LP gas was purchased and installed in 1948. Their first fuel supplier, Muhlenbruch Hardware Company, sold out to defendant Kolb Hardware, Inc., in 1959. The sale included transfer of ownership of a regulator and two gas tanks or cylinders being used on plaintiffs' premises. The same regulator was furnished from 1948 until the fire. The tanks were changed as a new supply of gas was needed. In 1960 plaintiffs purchased a new Tappan four burner LP gas stove which was installed together with new tubing by the vendor, Elliott Hardware Company. A location change of the stove necessitated moving Kolb's regulator and tanks. Without interruption Kolb continued to furnish the same regulator and delivered new tanks of gas as needed. Kolb delivered and installed one gas cylinder to plaintiffs' home on October 23, 1963 and a second cylinder on December 24, 1963. They were in place at the time of the fire. At no time did plaintiffs attempt to adjust or tamper with the regulator or cylinders. They were cared for only by Kolb's employees.

When Kolb had on hand several empty cylinders an employee hauled them to the plant of defendant Thermogas Company at Mason City where they were exchanged for 100 lb. cylinders which Thermogas had filled with LP gas. This arrangement between defendants had been carried out for several years before the event here involved.

On the morning of March 20, 1964 Mrs. Pastour used the stove for cooking breakfast and again used it in preparing the noon meal. As it had done for several years, the stove functioned properly. About five forty that afternoon while her husband was in the kitchen Mrs. Pastour went to the stove to make coffee. As she had always done before, she turned on a burner. To her surprise flames roared eight to twelve inches high. She immediately turned off the burner and it went out. When the burner flamed up she was frightened and startled. She walked across the kitchen from the stove to telephone Kolb but decided to turn it on again before making a call. When she turned the burner on a second time it again flamed and roared 'real loud'. Her attempt to shut it off was in vain. Flames were not only shooting from the burner but from the pilot light and under the entire top of the stove. The flames shot up and out the back of the stove. Curtains were set on fire. Mr. Pastour ran out of the kitchen to shut the gas off at the tanks. Mrs. Pastour was unable to reach the fire department on the telephone. She then went to the kitchen sink and began throwing water on the flames. She was then blown out the kitchen door. She was blistered around her hairline and her hair singed. She testified: 'It just went 'whoof' and I was right out the door.' The inside of the kitchen was engulfed with flame and smoke. The house was damaged beyond repair.

Her later direct examination includes the following:

'Mr. Cady: Now, then, describe the explosion a little more in detail and what happened? Mrs. Pastour: Well, it was just like a big ---

'Mr. Boyle: Excuse me. We move to strike the word 'explosion' as having been injected by counsel, there never yet having been any testimony by this witness in regard to any explosion.

'The Court: The objection will be overruled.

'Mr. Cady: You may answer the question, Mrs. Pastour. A. Would you repeat the question?

'Q. Would you describe the explosion that occurred. A. Well, it was just like a big puff; more of a pressure like.

'Q. What happened so far as you were concerned? A. I just went right out the door.

'Q. Were you pushed out the door? A. That's what it seemed like.' The inside door was open. She was blown out the closed outside kitchen door.

A few days after the event here involved a Kolb employee at the direction of Thermogas' manager removed the two cylinders or tanks and the regulator and took them to Kolb's place of business.

Several weeks after the event an experienced appliance repairman made a visual inspection of the stove in the kitchen where it had remained unmoved. He checked the connections and tubing from where the regulator had been and run to the stove. They were in normal condition. He removed the tubing and took it to his shop for testing. No breaks or defects were found.

Dr. Lionel K. Arnold, a Professor of Chemical Engineering at Iowa State

University of Science and Technology, was called as a witness by plaintiffs. He has many degrees including Master of Science. He has been a member of the staff at Iowa State since January 1926. His teaching includes lectures to fire fighters. Through the years he has inspected the sites of various fires and explosions for lawyers, insurance companies, gas companies and municipal officers. His experience and competency are not challenged here.

His testimony summarized in the record includes: 'I have had experience with the problems of gasses and the behavior and utilization of the various gasses. I have studied natural gasses and these manufactured propane gasses. I am familiar with the explosive qualities of gasses and what causes them to explode.

'Q. Why do various gasses explode? What causes it? A. Well, you might say an explosion is really a very rapid burning in which you get expansion of gasses from the products of combustion or burning and these spread out and if they are confined may build up to quite a little pressure and cause quite a little damage. The pressure which you get depends upon the relative amount of the gas and oxygen present and also on how the gas is confined and, of course, on the specific gas itself. * * * I have studied gas regulators, gas bottles and containers and that type of thing. I have examined a number of them. We use them around the laboratory. We have to be familiar with them. I have taken regulators apart. I understand the function of a regulator and the operation of a regulator. I have looked at these LP gas cylinders, hundred-pound gas cylinders. I have examined them and checked them over, given them visual inspection. I am familiar with the regulators for liquid petroleum gasses as are manufactured by the Fisher Governor Company. I am familiar with the Model 923, liquid petroleum gas regulator. * * * The pressure, or the gas that is in these large gas tanks, is under a great deal more pressure than the stove requires. The gas regulator determines what the pressure is and the amount of gas that goes into the burning unit. * * *

'Q. Have you read studies of the various gasses to determine whether or not there are ever foreign substances in any of the gasses, or is it possible? A. Oh, it is entirely possible. As these gasses are produced or separated from the other constituents, they may have, and usually do have, foreign substances mixed with them. * * *

'Q. Is it possible for these foreign substances to form scales or chips and get into the regulator and prevent its proper functioning, or cause it malfunctioning? A. If these were present in the gas in the cylinders, yes. * * * It is entirely possible that the foreign substances that might be in the regulator could cause the regulator to not close. * * *

'Q. Now, Doctor Arnold, I have a rather long question here. Assume that you have a frame home, farm home, of frame construction. The gas being supplied to a four-burner LP gas range equipped with a pilot light, a Tappan range. The gas being supplied from two one hundred pound gas cylinders of LP gas propane which was equipped with a Model 923 Fisher regulator with a double-acting check valve. The gas being brought into the kitchen from the tanks through the regulator, then into the copper tubing into the stove. And assume that the copper tubing and connections to the stove were sound and tight. And further assuming that the operator of the stove turned on the right front gas burner of the stove, and thereafter the burner's flame shot upward approximately eight to twelve inches and had a roaring sound thereto and that the operator then turned the burner off and the flame went down and then immediately or shortly thereafter turned the burner on again and the flame from the burner shot upward again approximately eight to twelve inches and once again had a roaring sound. Assume further that the operator thereafter closed the burner valve and that the burner continued to burn with the same high level of flame eight to twelve inches and assume that the fire seemed to spread to the rear of the stove under the lid of the stove and assume that the operator of the stove then threw water on the fire attempting to extinguish it and assume that the flames continued to spread and a moment thereafter, an explosion occurred, thereby damaging the house, and contents beyond repair. Doctor, assuming the facts as stated in this question to be true, do you have an opinion as to the cause of the fire and explosion which occurred at this time and place? A. Yes.

'Q. And what is your opinion as to the cause of the fire and explosion?

'Mr. Boyle: We object to the question put to the witness for the reason that it is calling for an opinion and conclusion of the witness upon...