Thompson v. Trane Co., 43573

• Decision Date: 11 April 1972
• Docket Number: No. 43573,43573
• Citation: 500 P.2d 1329
• Parties: James R. THOMPSON and Beverly Thompson, Appellants, v. The TRANE COMPANY and Standard Refrigeration & Engineering, Appellees.
• Court: Oklahoma Supreme Court

Page 1329

500 P.2d 1329

James R. THOMPSON and Beverly Thompson, Appellants, v. The TRANE COMPANY and Standard Refrigeration & Engineering, Appellees.

No. 43573.

Supreme Court of Oklahoma.

April 11, 1972.

Rehearing Denied Sept. 26, 1972.

Robert S. Baker, Oklahoma City (Pierce, Duncan, Couch & Hendrickson, Oklahoma City, of counsel), for appellants.

Watts, Looney, Nichols & Johnson, Oklahoma City, for appellee, The Trane Co.

Ben A. Goff, Oklahoma City, for appellee, Standard Refrigeration & Engineering.

LAVENDER, Justice.

The case involves a claim that a home gas-fired furnace manufactured by the appellee The Trane Company and sold to the plaintiffs by the appellee Standard Refrigeration & Engineering Company was defective in that it leaked gas. It was further alleged that the gas leak somehow ignited and melted a control valve inside the furnace with the result that the fuel supply became uncontrolled and caused a damaging fire to plaintiffs' new home. Another defendant--a sub-contractor of Standard (Climate Air Conditioning, Inc.)--was also joined. The primary question here involves the sufficiency of the evidence. Plaintiffs in the trial court, who are the appellants here, urge the trial court erred when it sustained the defendants' demurrers and motions for directed verdicts.

The parties, for convenience, will be referred to by name or by their respective trial court designation.

The pertinent facts gleaned from the record are these:

Plaintiffs, Mr. and Mrs. Thompson, as the owners and builders of a rather large home in Oklahoma City, entered into a contract in writing with Standard whereby the latter sold to the Thompsons the furnace involved. The contract appears in the record as an exhibit. According to that instrument, Standard sold three of the units identical to the one involved in the fire to the plaintiffs. These units were to be installed by Standard in three different locations in plaintiffs' home. The carpentry work necessary to accommodate the units, as well as the electrical wiring and the installation of all necessary gas piping, was done under plaintiffs' direction by persons other than the defendants in this cause.

Standard's contract was to 'furnish, install and service' heating units as well as air conditioning equipment. The contract contained this clause: 'After installation, our qualified representative will start, test, and provide instructions on the care of the equipment.'

The particular gas furnace involved was manufactured by Trane and sold to Standard in July 1966. According to undisputed evidence, the furnace was subjected to tests at the factory which would have revealed any leaks in the unit. After the testing procedure, the unit was packaged in a carton for shipment to Standard. The carton was so constructed that it did not allow access to the unit except by opening the carton.

Standard sub-contracted part of the work to Climate. As a part of their work, that company picked up the furnace unit still in its undisturbed carton as shipped from Trane and delivered it to the job-site where it was uncrated and installed in a small closet-type opening in one of the interior hallways of the plaintiffs' home. Climate, in addition to this work, also installed certain ducts in the ceilings of the home. As we have already noted, the actual hooking-up of the unit to the electrical and gas connections was to be done by other people employed by plaintiffs.

Thereafter, in October 1966, Mr. Thompson called a Mr. Tassell (Standard's employee) apparently to request that the furnaces be turned on because by that time it was getting cold and the workmen in the house would be more comfortable if it was heated. At that time, the gas company had not yet installed its meter at the home. Mr. Thompson testified that thereafter he was advised by the gas company that the meter would be installed on November 4. Plaintiff said he called Tassell back and told him what the gas company had said and Tassell told plaintiff, 'Well, we will get you some heat.'

The plaintiff did not testify that all of the electrical and gas piping had at that time been completed or that, as far as he was concerned, the installation of the furnace had been 'completed,' in the sense that that term is used in the contract. According to Standard's contract, they were to be paid '30% At Ground Work; 30% At Rough In and 40% At completion.' The last payment had not been made and in fact was not made at the time the fire occurred some six weeks after the November 4th date.

The plaintiff further testified that in one of these two conversations with Tassell the latter suggested that 'he put up temporary thermostats so that the painters wouldn't damage the new ones.' These 'temporary' thermostats were delivered to the job by Standard. The plaintiff testified that after the second conversation with Tassell he had no further direct communication with him until after the fire which occurred on December 18, 1966. However, the plaintiff also testified that sometime after November 4th he observed temporary thermostats on the walls and that the furnace was in operation. The unit appeared, to Thompson, to be operating satisfactorily with the exception that approximately two weeks before the fire occurred plaintiff noticed the vent pipe from the furnace had become blackened with smoke. He called Standard and reported this fact to the telephone girl. Tassell was not in at the time.

The plaintiff did not know who lighted the furnace. Standard's Mr. Tassell testified that neither he nor any of Standard's people started or tested the unit. This witness stated that on two or three occasions he tried to telephone Mr. Thompson to see if the unit was ready to be started, but that he was unable to get in touch with the plaintiff before the December 18th fire.

The fire occurred on a Sunday afternoon. The house had been closed up and unoccupied by workmen since noon of the day before. At five or six o'clock on the day before the fire, Mr. Thompson came by the house and went through it checking on the progress of the work and making sure that the house was locked up. Everything seemed to be in order. The following afternoon he received word that the house was afire.

According to the testimony of the fire marshal, who investigated the fire to determine its cause, the fire originated from a gas leak in or in close proximity to a regulator or control valve inside the unit. The leak ignited and somehow the control valve, or a portion of it, melted. When it had sufficiently melted so that the gas supply pipe was no longer connected in the enclosed piping system of the furnace, the raw gas coming from the supply pipe ignited and created a 'blow-torch' effect which in turn caused the fire damages to the house.

The 'defect' in the furnace unit upon which plaintiffs depend to establish their cause for damage against both Trane and Standard was...