United Pac. Ins. Co. v. Balcrank, Inc.

• Decision Date: 13 November 1963
• Docket Number: No. 37610,37610
• Citation: 25 O.O.2d 77,193 N.E.2d 920,175 Ohio St. 267
• Parties: , 25 O.O.2d 77 UNITED PACIFIC INS. CO., Appellant, v. BALCRANK, INC., Appellee.
• Court: Ohio Supreme Court

Page 267

175 Ohio St. 267

193 N.E.2d 920, 25 O.O.2d 77

UNITED PACIFIC INS. CO., Appellant, v. BALCRANK, INC., Appellee.

No. 37610.

Supreme Court of Ohio.

Nov. 13, 1963.

Syllabus by the Court

1. Where from the evidence it may reasonably be found that injury to an individual was proximately attributable to a defective article which broke and collapsed and which was warranted by the manufacturer and seller thereof to be strong and durable and suited to the purpose for which it was sold, the buyer bought the same directly from the manufacturer and seller in reliance on such warranty, and the injured individual recovers damages from the buyer for the buyer's negligence in failing to discover the defect, the buyer may properly maintain an action against the manufacturer and seller to recoup his loss on the basis of a breach of warranty.

2. Where there is a breach of warranty by the manufacturer and seller of an article, he is subject to liability for damages proximately caused by such breach, and the recovery of damages from him for such breach does not depend on his negligence or his actual knowledge of a defective condition.

3. Where the buyer of an article has been compelled to pay damages to a person for injuries caused by the defective condition of such article, manufactured and supplied by the seller thereof, the buyer has a right of action against the seller based on breach of warranty.

4. The consequential damages sustained on account of a buyer's responsibility for injury to another are not too remote for recovery in an action for breach of warranty against the manufacturer and seller, where the latter was aware of the use to which the buyer intended to put the purchased article.

The United Pacific Insurance Company, a Washington corporation and hereinafter called the insurer, as subrogee of its insured, the Boyle Furniture Company of the city of Ogden, Utah, hereinafter called Boyle, instituted this action in the Court of Common Pleas of Hamilton County to recover the sum of $7,762.08, with interest, from Balcrank, Inc., of Cincinnati, being the amount paid by the insurer to satisfy a judgment, plus court costs and expenses, recovered against its insured, Boyle, in the District Court of Weber County, Utah, on account of personal injuries sustained by a Boyle customer.

It appears that Boyle purchased from Balcrank, the manufacturer and distributor, a number of folding aluminum chairs upon the following written representation:

'Designed and constructed to match all competition. Priced to build traffic, big volume sales and profit. A 'regular-size' chair--smart in appearance, sturdily constructed with all the important Shott features which make it light weight, durable, roomy and comfortable.'

Upon receipt of the chairs, fully assembled and packed four to a carton, Boyle placed some of them on display in its retail store. Visual inspection, upon removal of a protective coating from the aluminum, showed no imperfections. A customer, named Fehlman, who weighed 180 pounds, sat in one of the chairs and moved about in it. It broke and collapsed. He was precipitated to the concrete floor and sustained substantial injuries. Fehlman sued Boyle in an action grounded on negligence. Balcrank was notified of the suit, tendered its defense, and advised that it would be held responsible for any loss incurred. Trial was had, Balcrank made no appearance, and a verdict and judgment were rendered against Boyle as indicated above.

The present action was tried in the Court of Common Pleas, without a jury, upon the petition, alleging warranty of the chair and the breach of such warranty, upon the answer, admitting advice as to the pendency of the action in Utah and denying generally all other allegations of the petition, and upon the pleadings and a transcript of part of the evidence introduced in the Utah trial.

Judgment was rendered for the insurer in the sum of $7,762.08 with interest at six per cent from June 19, 1958, for the following reasons, as stated in the judgment entry:

'1. The defendant [Balcrank] expressly warranted and represented to Boyle Furniture Co. the folding chair in question was sturdily constructed and designed to meet all competition; whereas in fact it was defective and not constructed in keeping with the warranty.

'2. If it be considered there was no express warranty then, without question, there was an implied warranty that the folding chair in question was reasonably safe for the purpose for which it was intended.

'3. Plaintiff's assignor and subrogee was secondarily liable for the wrongful injury to William J. Fehlman, and having been required to respond in damages to Fehlman it is entitled to recover its loss from the defendant tort-feasor who was primarily liable upon the doctrine of an implied contract of indemnity.

'4. The defendant failed to use reasonable care and skill in the manufacture of the chair in question which caused a defect that ultimately resulted in injury to Fehlman.'

An appeal on questions of law to the Court of Appeals resulted in a reversal of the judgment below and final judgment for Balcrank for the reasons stated in the judgment entry (there was no written opinion) that 'there is no evidence contained in the record of any defect existing or occurring in the chair in question by reason of the manufacturing process or thereafter while in the possession or control of defendant-appellant and thus no evidence of any negligence or breach of warranty upon the part of defendant-appellant, and for the further reason that plaintiff-appellee having paid and satisfied a judgment against its insured has no greater right of reimbursement than its insured.'

Allowance of the insurer's motion to require the Court of Appeals to certify the record brings the cause here for review and decision.

Milton M. Bloom and Gordon C. Greene, Cincinnati, for appellant.

Pogue, Helmholz, Culbertson & French and Edward J. Utz, Cincinnati, for appellee.

ZIMMERMAN, Judge.

If the present action against Balcrank was maintainable by Boyle, Boyle's...