Water Works & Indus. Supply Co. v. Wilburn

• Decision Date: 29 November 1968
• Citation: 437 S.W.2d 951
• Parties: 5 UCC Rep.Serv. 1169 WATER WORKS & INDUSTRIAL SUPPLY COMPANY, a Corporation, Appellant, v. Claud WILBURN, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 951

437 S.W.2d 951

5 UCC Rep.Serv. 1169

WATER WORKS & INDUSTRIAL SUPPLY COMPANY, a Corporation, Appellant, v. Claud WILBURN, Appellee.

Court of Appeals of Kentucky.

Nov. 29, 1968.

Rehearing Denied March 28, 1969.

J. D. Atkinson, Sr., and J. D. Atkinson, Jr., Atkinson & Atkinson, Greenup, H. Lakin Ducker, Ducker & McCreight, Huntington, W. Va., for appellant.

C. B. Creech, Ashland, for appellee.

CULLEN, Commissioner.

Appellee Claud Wilburn obtained a contract for construction of a water main for the Quicksand Water District. He arranged to purchase his materials, including pipe, fittings and gaskets, from the appellant, Water Works and Industrial Supply Company. After the main was installed and the water was turned on a series of 'blow-outs' developed at joints where the pipe was joined with fittings for bends or for lateral connections. Wilburn was put to considerable expense in digging up the pipe, refilling and reblocking the connections, and back filling. He sued the appellant (hereinafter 'Supply Company') for damages, claiming in substance that Supply Company had furnished the wrong kind of gaskets. He also sought recovery for an alleged shortage in the delivery of a quantity of 4-inch pipe. Supply Company answered denying liability, and counterclaimed for some $5,000 representing the balance due on the purchase price of the materials sold to Wilburn. The case went to the jury, which awarded Wilburn $15,000 on his damage claim and $600 on the shortage claim, to be offset by the balance due on the purchase price of the materials as sought in the counterclaim. Judgment was entered accordingly.

Supply Company has appealed, asserting numerous grounds of error. We shall consider first the contention that the proof was not sufficient to establish that the wrong type of gaskets had been furnished.

The 'Blowouts' occurred in the main 8-inch line, where the pipe made joints with fittings. The pipe and fittings were designed for 'push-on' connections in joints, the pipe being pushed into the opening in the fitting. Inside the lip of the fitting there is a groove into which is inserted a rubber gasket which is designed to seal the space between the outer circumference of the pipe and the inner circumference of the fitting, so as to make the joint watertight. Lengths of pipe also are designed to be joined in a similar manner, by use of couplings into which the ends of the pipes are inserted and which have grooves for gaskets.

The evidence shows that there are two standard or common types or brands of pipe and pipe gaskets in general use for water lines. One is the 'fluid-tite' brand manufactured by Certain-Teed Products Company and the other is the 'ring-tite' brand manufactured by Johns-Manville Manufacturing Company. The main difference in the two, as relates to the issue in this case, is that the groove in the coupling in the ring-tite brand is wider than the one in the fluid-tite brand, wherefor the ring-tite gasket is wider than the fluid-tite gasket. The fluid-type gasket also differs in that it has a series of small holes or indentations around its circumference, on the back, designed to make the gasket expand when water enters the pipe so as to make a tighter seal.

As concerns fittings, there are numerous brands on the market. However, Certain-Teed and Johns-Manville do not manufacture fittings--their pipes are used with the fittings of other manufacturers. The evidence indicates that, as is the case with the pipe, there are two types of fittings commonly in use; one with grooves designed for ring-tite gaskets and the other with grooves designed for fluid-tite gaskets. The trouble in the instant case arises out of the fact that Supply Company furnished to Wilburn a relatively new type of fitting manufactured by Ductile Iron Company of American which is claimed by the manufacturer to have a 'common groove' suitable for accommodation of either the ring-tite or the fluid-tite gasket. The groove in this fitting is of comparable width to that in the exclusively ring-tite fittings but the manufacturer claims that by reason of careful machining and the use of ductile iron the groove will properly handle the narrower fluid-tite gasket.

The specifications for the construction job did not specifically cover gaskets, and were somewhat ambiguous as to fittings. They provided that 'Cast Iron Fittings * * * shall be short body mechanical joint, ring-tite joints or fluid-tite joints * * *.' Supply Company maintains that this meant that the use of either type of gasket would be acceptable, while Wilburn argues that it meant that ring-tite gaskets should be used with ring-tite fittings, and fluid-tite gaskets with fluid-tite fittings. We shall have more to say about this later.

For his use on the Quicksand job, Supply Company supplied to Wilburn fluid-tite pipe couplings and gaskets manufactured by Certain-Teed, and ductile iron fittings manufactured by Ductile Iron Company. Included were some 4-inch and 6-inch sizes as well as the 8-inch size for the main line. However, the leaks or 'blow-outs' complained of occurred only in the 8-inch joints.

We shall summarize the evidence (including inferences) designed to prove that the fluid-tire gaskets were not fit for the purpose for...