Shaffer v. Honeywell, Inc.

• Decision Date: 31 December 1976
• Docket Number: Nos. 11635,11637 and 11643,s. 11635
• Citation: 249 N.W.2d 251
• Parties: Robert J. SHAFFER et al., Plaintiffs and Respondents, v. HONEYWELL, INC., a corporation, Defendant and Appellant, and A. J. Industries, Inc., a corporation, et al., Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 251

249 N.W.2d 251

Robert J. SHAFFER et al., Plaintiffs and Respondents, v. HONEYWELL, INC., a corporation, Defendant and Appellant, and A. J. Industries, Inc., a corporation, et al., Defendants

and Appellants.

Nos. 11635, 11637 and 11643.

Supreme Court of South Dakota.

Dec. 31, 1976.

Richardson, Groseclose, Kornmann & Wyly and Chester A. Groseclose, Jr., Aberdeen, for plaintiffs and respondents.

Davenport, Evans, Hurwitz & Smith and Ellsworth E. Evans, Sioux Falls, for defendant, appellant and respondent Honeywell, Inc.

Woods, Fuller, Shultz & Smith and John E. Simko, Sioux Falls, for defendants and appellants, A. J. Industries and Roberts-Gordon Appliance Corp.

May, Porter, Adam, Gerdes & Thompson and David A. Gerdes, Pierre, for defendant and appellant, Dunkirk Radiator Corp.

Siegel, Barnett, Schutz, O'Keefe, Ogborn & Jewett and Joseph H. Barnett, Aberdeen, for defendant, Northwestern Public Service Co.

WINANS, Justice.

These appeals arise from an action for damages occasioned by a fire and explosion in plaintiffs' home. The trial court found for the plaintiffs. We affirm.

Plaintiffs Robert and Jane Shaffer owned a home located southwest of Aberdeen, South Dakota. The house was situated adjacent to a greenhouse complex owned by Siebrecht Florist, Inc.; Robert Shaffer was president of that corporation. The corporation was engaged in raising and selling plants and flowers on a commercial basis. Proper temperature control was essential to the success of the enterprise.

Originally the greenhouse was heated by coal-fired, steam-generating boilers. In 1966 a natural gas-fired system was installed and the coal-fired system was retained as a standby unit. The Shaffer residence was heated by steam piped over from the greenhouse complex.

In 1969 the entire heating system was converted to gas, with natural gas supplied by defendant Northwestern Public Service Co. (NWPS) as the primary source of fuel, and a liquefied propane-air mixture supplied by an air mix plant as a secondary fuel source. ¹ In conjunction with this conversion the Shaffers also decided to install a gas-burning furnace in their home.

After consultation with representatives of defendant Roberts-Gordon Appliance Corp., the Shaffers ordered a model G--5 Roberts-Gordon boiler for their house. It was represented that this furnace would function on both sources of fuel. Roberts-Gordon channeled the purchase order to defendant Dunkirk Radiator Corp., which manufactured that type of furnace under the Roberts-Gordon name. ² Dunkirk shipped the furnace directly to the Shaffer home, crated but fully assembled.

Included as a component part of the furnace was a 100% Safety shut-off valve (also referred to as a combination gas control) manufactured by defendant Honeywell, Inc. The function of the valve was to automatically terminate the flow of gas to the burners in the furnace should the pilot light go out.

To install the furnace it was necessary to lay a pipeline to the house, a distance of some 80 feet. The trench was dug by Siebrecht employees. NWPS employees welded, coated, wrapped, and tested the pipeline and laid it in the trench. Siebrecht employees made the connections at the greenhouse and the house and then covered the trench. They installed a manual shut-off valve and a pressure regulator just outside the house. In addition they installed a manual shut-off valve in the basement and then installed the furnace. The lines both inside and outside the house were soap checked for leaks. None were found. NWPS serviceman John Rombs then inspected the installations, made pressure checks, and initially set the furnace into operation in July 1969.

During December of 1969 it was necessary for NWPS to interrupt the flow of natural gas to some of its customers because of the nationwide gas shortage. When this occurred, NWPS provided plaintiffs with advance notice and the latter then switched to the L.P.-air mixture to heat both the greenhouse and the residence. After this switch they discovered that the furnace did not produce sufficient heat. On December 23, NWPS serviceman John Ell was sent to check the problem.

Ell examined the furnace and found the flues were sooted up. This had caused flames to emit from the front of the furnace. Ell cleaned the furnace and replaced some wiring and a small transformer that the flames had burned out. Ell also checked the pressure on the Honeywell valve and found it proper. After relighting the furnace, Ell found the flame to be out of adjustment. He determined that the L.P.-air mixture was too rich and so informed Mr. Shaffer. Steve Thorson, Siebrecht general manager and the Shaffers' son-in-law, subsequently made the required adjustment at the air mix plant. No further adjustments of the furnace or plant were made prior to the fire.

On January 6, 1970 Mr. Shaffer was called from a meeting by his wife. Her complaint involved the furnace. There was a smell of gas in the house when he arrived, especially in the basement. Upon entering the basement, Mr. Shaffer heard a hissing sound coming from the furnace and determined that it came from the Honeywell valve. He also noticed that the pilot light was out. When he closed the manual shutoff valve, the hissing stopped. He then ventilated the basement.

About 45 minutes later he returned to the basement to relight the pilot. There was no hissing sound. He concluded the Honeywell valve had not functioned properly. On January 7th he contacted John Ell and asked him to check out the furnace, including the valve. After being told of the prior day's events, Ell was instructed to replace the valve if necessary. Accompanied by Steve Thorson, Ell recycled the valve about 10 times without producing a malfunction. He determined that everything was working properly and left without replacing the valve.

The Shaffers flew to Duluth on January 10, 1970 and continued to Minneapolis the next morning. Mr. Shaffer then flew to Detroit and Mrs. Shaffer returned to Aberdeen.

Approximately 8:00 a.m. on January 11, Thorson received an emergency call from a Siebrecht employee informing him that the air mix plant had broken down and that the heating systems had been switched to natural gas. ³ A motor mount on the plant had broken and had to be rewelded. Repairs were made and the pilot lights relit over the next two hours. Prior to returning the plant to operation, however, it was necessary to bleed the pipes to clear them of any excess air. During this process Linda Thorson, who had accompanied her husband to the complex, and Roy Gruenstein, a Siebrecht employee, were showered with an odorized L.P.-air spray.

Later that morning when Linda went to the airport to get her mother Mrs. Shaffer complained of the propane smell; Linda recounted the morning's events at the greenhouse. When they arrived at the house, Mrs. Shaffer commented on the temperature and Linda realized that no one had remembered to relight the pilot on the furnace. She immediately contacted Roy Gruenstein and requested that he do so. Although there was a gas smell in the house, it was attributed to Linda's propanesaturated clothing.

Gruenstein called John Ell of NWPS and received instructions on the proper procedure for relighting the furnace. He then went to the Shaffer home. Linda had already left. As he started down the stairs to the basement he first noted a propane smell. Mrs. Shaffer also noted the odor. Because Gruenstein had also been sprayed with gas that morning, he attributed the smell to his clothing.

While Mrs. Shaffer vented the basement, Gruenstein went to the furnace room. He heard no hissing sound. He determined that the pilot was out so he attempted to relight it according to his instructions. As he knelt down and struck a match to the floor, a big ball of flame engulfed him. The resulting fire and low order explosion did considerable damage to the Shaffer residence and personal property.

Plaintiffs commenced this action by summons and complaint on April 17, 1972. Liability was alleged under five causes of action: 1) res ipsa loquitur; 2) negligence; 3) strict liability; 4) breach of warranty; and 5) violation of statute. Trial was to the court and by consent of the parties was bifurcated into a liability phase and a damages phase. The liability phase concluded on November 15, 1973; in April 1974 findings were entered in favor of plaintiffs against all defendants except NWPS. ⁴ The latter was granted judgment against plaintiffs on its motion to dismiss the complaint and against Dunkirk dismissing its cross-claim.

Honeywell's liability was grounded on breach of warranty, negligence, and strict liability. Roberts-Gordon and A. J. Industries had liability founded on strict liability and on breach of implied warranty. Dunkirk was found liable as the manufacturer of the furnace under breach of both express and implied warranty. Because Roberts-Gordon, A. J. Industries, and Dunkirk were without personal fault in that their liability was vicarious in nature, they were granted indemnity against Honeywell.

The damage phase commenced May 29, 1974 and concluded on July 8, 1974. Judgment was entered December 16, 1974 in favor of plaintiffs in the amount of $76,415.33 plus 8% Interest and costs. Honeywell perfected an appeal from the entire judgment (Appeal No. 11637). Roberts-Gordon and A. J. Industries appeal only from the trial court's decision not to award attorney fees as part of the indemnity award (Appeal No. 11635). Likewise, Dunkirk appeals only from that portion of the judgment (Appeal No. 11643).

Honeywell first attacks the sufficiency of the evidence to support the trial court's findings on the question of liability. We will not disturb those findings unless they are clearly erroneous.

'In making this determination we are mindful that it is incumbent upon this Court to be duly aware of the opportunity of the trial court to judge at first hand the credibility of the witnesses. See SDCL...