Williams v. Joseph L. Rozier Machinery Co., 2364

• Decision Date: 08 December 1961
• Docket Number: No. 2364,2364
• Citation: 135 So.2d 763
• Parties: Wilma WILLIAMS, a widow, Appellant, v. JOSEPH L. ROZIER MACHINERY CO., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 763

135 So.2d 763

Wilma WILLIAMS, a widow, Appellant, v. JOSEPH L. ROZIER MACHINERY CO., a Florida corporation, Appellee.

No. 2364.

District Court of Appeal of Florida, Second District.

Dec. 8, 1961.

Rehearing Denied Jan. 3, 1962.

Charles L. Steinberg, of Fishback, Williams, Davis & Dominick, Orlando, for appellant.

Richard W. Bates, of McCarty & Bates, Orlando, for appellee.

WHITE, Judge.

This is an appeal by Wilma Williams, plaintiff below, from a summary judgment entered for the defendant, Joseph L. Rozier Machinery Company. The plaintiff is the surviving wife of Kenneth Williams who was killed on July 2, 1959 in the course of his employment as a mechanic working on a caterpillar tractor. The ostensible cause of the tragedy was the excessive release of pressure from a valve forming a part of the mechanism of the tractor. The deceased's employer, C. A. Meyers Construction Company, had purchased the tractor from the defendant, Joseph L. Rozier Machinery Company.

The plaintiff's action, premised on negligence, was brought against both the manufacturer, the Caterpillar Tractor Company, and the retailer, Joseph L. Rozier Machinery Company. The trial court entered summary judgment for the latter defendant and the case continued against the manufacturer for damages deriving from an alleged latent defect in the design of the pressure release valve that purportedly caused the death of plaintiff's decedent. It is from the summary judgment in favor of the defendant retailer, Joseph L. Rozier Machinery Company, that the plaintiff has taken this appeal.

The plaintiff contends that the defendant Joseph L. Rozier Machinery Company, as retailer, was negligent in selling to her decedent's employer a tractor with a defective part, to-wit: a defective pressure release valve, that such defect rendered the tractor inherently dangerous and that no warning had been given to the decedent of the dangerous condition. The plaintiff further alleged that the defendant had undertaken to repair the tractor after the sale and knew or should have known of the defect.

At the time of the accident the decedent was letting off pressure from a hydraulic tread adjuster. Affixed to the cylinder was a sign approximately 2 X 4 inches in size reading:

'Warning: High pressure cylinder. Do not open vent valve more than one-half turn or remove fitting until pressure is relieved.'

Coworkers of the deceased heard the explosive-like noise caused by the propulsion of a grease fitting from the cylinder as it apparently struck the decedent on the head and caused his immediate death. The accident itself was not seen by any of the coworkers of the deceased, nor did they observe the method used by the deceased in releasing the pressure.

The plaintiff contends that the summary judgment was erroneous in that there were genuine issues of material fact as to whether or not the warning sign conveyed adequate notice of the lethal potential of the pressure release system and as to whether or not the employees of the defendant had exercised due care in the inspection of the system in view of the accumulation of grease deposits obscuring the warning plate. It was urged on behalf of the plaintiff that the defendant's employees should have remedied the alleged dangerous condition of the valve when they inspected the track adjustment system.

The plaintiff relies on Russell v. Jacksonville Gas Corporation, 1960 Fla.App., 117 So.2d 29, 32. In that case plaintiff purchased a gas range from the defendant, and shortly thereafter the defendant undertook to repair a control knob. After the repair the purchaser lit the oven and was injured by an explosion caused by a gas leakage due to a defective thermostat.

The First District Court of Appeal said:

'In the case at bar, defendant gas corporation undertook to sell, install, and repair a gas range. Whether it exercised due care in repairing the control knob without investigating the thermostat which was a part of this control mechanism was a question for the jury. Whether the gas company, in the proper discharge of such duty, would or should have detected the defective thermostat and repaired it, thereby obviating the ensuing explosion, was likewise a jury question. Under these circumstances, it is a question of fact as to whether one who sells, installs and repairs a gas range has exercised due care in repairing an appliance capable of...