Pettella v. Corp Bros., Inc.

• Decision Date: 19 August 1970
• Docket Number: No. 808-A,808-A
• Citation: 268 A.2d 699,107 R.I. 599
• Parties: Anthony A. PETTELLA v. CORP BROTHERS, INCORPORATED v. UNION CARBIDE CORPORATION. ppeal.
• Court: Rhode Island Supreme Court

Page 699

268 A.2d 699

107 R.I. 599

Anthony A. PETTELLA v. CORP BROTHERS, INCORPORATED v. UNION CARBIDE CORPORATION.

No. 808-Appeal.

Supreme Court of Rhode Island.

Aug. 19, 1970.

Reargument Denied Sept. 29, 1970.

Gerald P. McOsker, Providence, for plaintiff

Guy J. Wells, Providence, for third-party defendant.

John T. Keenan, Providence, for defendant and third-party plaintiff.

OPINION

ROBERTS, Chief Justice.

This action in assumpsit was brought to recover damages for destruction by fire of the plaintiff's residence alleged to have resulted from a breach of warranty. The action was brought in November 1961 prior to the adoption of Super.R.Civ.P. In November 1967, after the adoption of Super.R.Civ.P., the defendant Corp Brothers, Incorporated, acting pursuant to Super.R.Civ.P. 14, was granted authority to implead Union Carbide Corporation, and a third-party complaint was served on Union Carbide. Thereafter, Union Carbide, as the third-party defendant, moved to vacate the third-party complaint and for summary judgment, both of which were subsequently denied. The cases were tried without a jury to a justice of the Superior Court, and decision was for the plaintiff against Corp Brothers, Incorporated, hereinafter referred to as the primary defendant, as defendant and for the third-party plaintiff against Union Carbide as third-party defendant. Subsequently judgment entered on these decisions. Both the primary defendant and the third-party defendant are now in this court prosecuting appeals from those judgments.

The record discloses that plaintiff had been employed as a jewelry model maker for several years and that in the course of such employment he had a workshop on the third floor of his home where he pursued this work part time. In doing this work at home, he used an acetylene torch to solder the components of the jewelry models together. The torch outfit used by plaintiff consisted of a small acetylene tank, a hose connected to the tank, and a torch attachment.

It appears from the evidence that plaintiff acquired the tank from the primary defendant, Corp Brothers, Incorporated, on December 31, 1959. It was his practice to bring back to his supplier and empty tank and receive a full one, paying only for the acetylene gas that comprised the contents of the new tank. On this particular day plaintiff placed the tank on the rear seat of his car, where it remained until the following morning when he took it to his third-floor workshop. He testified that he attached the hose to one side of a Y valve on the tank, fitted a wrench to the side of the valve, and tapped it with a mallet to open the valve. He then struck a match to ignite the flame and saw that the flame was emerging from the part of the tank where the Y valve fits into it, a place where there was no method for shutting off the flame. Upon seeing the flame, he went downstairs and instructed his wife to call the fire department and, when returning to the third floor, found the workshop in flames. Both plaintiff's home and some of his personal property were substantially damaged in the fire.

Appeal of the Primary Defendant

The primary defendant contends, first, that the trial justice erred in concluding that it had warranted the fitness of the container or tank in which the acetylene gas had been delivered to plaintiff at the time of its purchase. There is, it is true, a divergence in the views taken by the courts that have passed on this issue. We think, however, that the better view has been expressed in several well-reasoned opinions emanating from the courts of California and Massachusetts, where the provisions of the Uniform Sales Act covering implied warranties are similar with those contained in G.L.1956, chaps. 3-8 of title 6, the Sale of Goods Act, so called. ¹

The provisions of that statute relating to implied warranties are substantially the same as those in the Uniform Sales Act, the statute that was in effect in those jurisdictions which have adopted what we consider the sound view. The primary defendant, in essence, argues that the pertinent provisions of the sales act cover only those items that are actually bought and sold and, since the only sale here was of the acetylene gas and not the cylinder in which it was contained, the warranty provisions of the statute are not applicable to a defect in the container. The trial justice found that the pertinent provisions of our statute have the effect of imposing the implied warranty not only on the contents sold but on the container in which it was sold.

The controlling statutory language on this issue is to be found in § 6-3-15 relating to implied warranties of quality and fitness. That section, in pertinent part, provides: '* * * there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. (2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.'

As we have already conceded, there is support in some jurisdictions for the proposition that this section applies only to that which is actually sold and not to the container in which the goods are sold. Poplar v. Hochschild, Kohn & Co., 180 Md. 389, 24 A.2d 783, citing Crandall v. Stop and Shop, Inc., 288 Ill.App. 543, 6 N.E.2d 685. In Poplar the Maryland court said 180 Md. at 393-394, 24 A.2d at 785: 'In that case (Crandall) the Court held that the implied warranty of the fitness and quality of the contents of the jar did not extend to the jar or to the cap sealing it and held: 'While the conclusion to be reached from the decisions cited in counsels' brief is that there may be an implied warranty as to the wholesomeness of food products, it does not logically follow that this theory of recovery should be extended to containers in which the food is packed and under the circumstances of this case we hold that there was no such warranty as to furnish the basis for the judgment entered in favor of plaintiff."

In our opinion, however, the California and Massachusetts courts have adopted what we have already noted is, in our opinion, the sound viewpoint on this issue. The California court has spoken with clarity in support of this proposition. In Vallis v. Canada Dry Ginger Ale, Inc., 190 Cal.App.2d 35, 11 Cal.Rptr. 823, ² the court adopted much language from the concurring and dissenting opinions in its former decision in Trust v. Arden Farms Co., 50 Cal.2d 217, 324 P.2d 583. The California statute which was in effect when these cases were decided was sec. 1735 of the Civil Code (Uniform Sales Act, § 15) and in pertinent part is identical to the Rhode Island Sales Act.

The court in Vallis, 190 Cal.App.2d at 40, 11 Cal.Rptr. at 827, quoting from Trust v. Arden Farms Co., succinctly stated what we think is the correct and prevailing view as follows:

"Section 1735 does not refer merely to goods sold but to all 'goods supplied under a contract to sell or a sale.' It has been held that when bottled beverages are sold, the bottles in which they necessarily must be delivered are supplied under the contract of sale within the meaning of the statute although the bottles are bailed rather than sold. (Geddling v. Marsh (1920), 1 K.B. 668; see 1 Williston on Sales (rev. ed. 1948), 582, n. 1.) The Geddling case related to a sale of 'lime juice and soda' in bailed bottles and was decided under section 14 of the English Sale of Goods Act, 1893, which contains provisions nearly identical with those quoted above from section 1735. The findings in that case showed that the sale came within the first subdivision of the section, but the reasoning of the court is equally applicable to a sale coming within the second subdivision. Accordingly, even if we assume that the bottle involved here was bailed, it would be subject to any warranty which would be applicable under either of the quoted subdivisions of the bottle had been sold.

"The sale of a bottle of milk by a dairy under the circumstances appearing here clearly comes within the language of the second subdivision of the statute, and the seller's implied warranty of merchantable quality under this provision includes a warranty that his product is reasonably fit for the general purpose for which goods of that kind are sold."

In Hadley v. Hillcrest Dairy, Inc., 341 Mass. 624, 171 N.E.2d 293, the Massachusetts court adopted the proposition that under the pertinent legislation the container in which the goods are delivered is also warranted. In Hadley the court clearly disposes of the contention that the implied warranty contemplated by the statute applies only to containers that have been sold. The court said at 627, 171 N.E.2d at 295: 'In our view it is immaterial whether or not the property in the jug passed to the plaintiff. We reach this conclusion notwithstanding what was said in the Mead case (Mead v. Coca Cola Bottling Co., 329 Mass. 440, 108 N.E.2d 757). Upon reconsideration, we are now of opinion that a sale of the container, as such, is not necessary in order for the implied warranties of fitness and merchantability to attach in this transaction.' In Hadley as in Vallis the court relied substantially on the rule laid down in Geddling v. Marsh, supra, by quoting from that case as follows at 628-629, 171 N.E.2d at 296: "The section (14), in my opinion, extends not only to the goods actually bought under the contract but to goods 'supplied under the contract of sale.' This particular...