Witt Ice & Gas Co. v. Bedway, 5212
| Decision Date | 28 May 1951 |
| Docket Number | No. 5212,5212 |
| Citation | 231 P.2d 952,72 Ariz. 152 |
| Parties | WITT ICE & GAS CO. v. BEDWAY. |
| Court | Arizona Supreme Court |
H. M. Van Denburgh, Phoenix, for appellant.
Evans, Hull, Kitchel & Jenckes, Phoenix, for appellee.
The plaintiff, John E. Bedway, instituted this action against Harlan Diehl, George Schaerges and the Witt Ice & Gas Company to recover damages for personal injuries sustained by him as the result of the explosion of a beer keg. The explosion occurred in the Troc Buffet in Phoenix on November 15, 1947, while the plaintiff was engaged in his duties as a bartender. At the time of the accident Diehl was in the business of installing beer dispensing equipment and employed Schaerges as his assistant. The two of them installed the beer dispensing equipment at the Troc Buffet on the day prior to the accident.
In the installation process it was necessary to connect a tank or cylinder of carbon dioxide gas as a component part of the beer dispenser in order to force the beer from the keg through the outlets on the bar. This was done by means of a copper tubing which was connected to the gas cylinder at the top, where a regulator was installed which gauged the flow of CO sub2 gas into the beer barrel.
It was the plaintiff's contention that because the regulator was defective it did not properly regulate the flow of gas, and that as a consequence the explosion occurred which resulted in plaintiff's injuries.
The regulator was obtained from the defendant Witt Ice & Gas Company by defendant Diehl for the Troc Buffet, and it was delivered to the Buffet by an employee of the company at the time of delivery of the gas cylinder, and it was thereafter installed by Diehl. The jury determined that the defendant Witt Ice & Gas Company was negligent in selling a defective regulator but exonerated the defendants Diehl and Schaerges, so that this appeal is being prosecuted only by the Witt Ice & Gas Company, on numerous grounds which will be hereinafter indicated.
The appellant has assigned as error the introduction of the regulator and its exhibition to the jury in a disassembled state on several grounds which, broadly stated, are that it was not the manufacturer and had not made any representations or warranty concerning it, or had any knowledge of any defects in it; that it was admitted in evidence by the court solely for the purpose of demonstrating its outward appearance, and that it was not in the same condition it was when taken from the Troc Buffet.
The objection to the receipt in evidence of the regulator on the first ground, to wit, that appellant was not the manufacturer and had not made any representations or warranty concerning it would be well founded if the evidence was uncontradicted that it was a new regulator. The evidence in that regard was conflicting, and the jury evidently adopted the testimony of the expert witness, McLeod, who said that the regulator was not new and had seen a lot of service; also the warehouse manager for defendant company, one Walker testified on deposition, parts of which were introducted in evidence, that his company had used regulators on hand and that they had repaired and sold a few of them. The regulator was identified as the saem one removed from the Buffet and which was admittedly supplied by the appellant. If different inferences as to ultimate facts may be drawn from evidentiary facts, the inference drawn by the trial court must be accepted by the supreme court on appeal. Daily Mines Co. v. Control Mines, Inc., 59 Ariz. 138, 124 P.2d 324; Kenton v. Wood, 56 Ariz. 325, 107 P.2d 380.
The next objection raised by the appellant was that the trial court stated at the time the exhibit was admitted in evidence that it was received solely for the limited purpose of demonstrating its outward appearance, and that it was error to subsequently permit the jury to observe its mechanical composition. The trial court erroneously concluded the purpose of the offer and perhaps misled counsel for appellant into believing that the mechanical aspect would not be considered. However we think it is harmless error as the exhibit was properly identified, and a proper foundation was laid by counsel for plaintiff before its mechanical operation and defects were presented to the jury.
Appellant also contends that the evidence conclusively showed that the regulator was in good operating condition at the time of its sale and for one and a a half to two hours after its installation. It appeared from the evidence that the failure of the regulator to maintain a constant pressure was due to a rip or tear in the neoprene valve seat which the expert McLeod testified showed evidence of age and a lot of service. ...
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...Arizona York Refrigeration Co. v. Bush Mfg. Co., 331 F.2d 1, 9 (9th Cir. 1964) (applying Arizona law), and Witt Ice & Gas Co. v. Bedway, 72 Ariz. 152, 231 P.2d 952 (1951). As to the defendants, Young Buick and the Marianis, the plaintiffs argue that this court should embrace the law of Malo......
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...in its use. See Restatement (Second) of Torts §§ 388, 389, 394 (1965); Annot., 76 A.L.R.2d 9, 16 (1961). Cf. Witt Ice & Gas Co. v. Bedway, 72 Ariz. 152, 231 P.2d 952 (1951). This duty may be a continuing one applying to dangers the manufacturer discovers after sale. Prosser, The Law of Tort......
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State v. Carlton
...held that, as long as an article can be identified, it is immaterial in how many, or in whose hands it has been. Witt Ice & Gas Co. v. Bedway, 72 Ariz. 152, 231 P.2d 952 (1951); Lestico v. Kuehner, 204 Minn. 125, 283 N.W. 122 (1938); State v. Sprout, 365 S.W.2d 572 (Mo.1963); State v. Allen......
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CHAPTER § 9.02 Common Defenses
...So.2d 846 (Ala. 1958) (privity requirement held to bar recovery in action against manufacturer). Arizona: Witt Ice & Gas Co. v. Bedway, 231 P.2d 952 (Ariz. 1951) (recognizing imminently dangerous product exception to privity doctrine). California: Catlin v. Union Oil Co., 161 P. 29 (Cal. 19......