Wood v. General Elec. Co.

• Decision Date: 29 April 1953
• Docket Number: No. 33168,33168
• Citation: 50 O.O. 286,159 Ohio St. 273,112 N.E.2d 8
• Parties: , 50 O.O. 286 WOOD et al. v. GENERAL ELECTRIC CO., et al.
• Court: Ohio Supreme Court

Page 273

159 Ohio St. 273

112 N.E.2d 8, 50 O.O. 286

WOOD et al. v. GENERAL ELECTRIC CO., et al.

No. 33168.

Supreme Court of Ohio.

April 29, 1953.

Syllabus by the Court.

1. Where the plaintiff in a property damage action requests the trial court in writing to specifically charge the jury before argument on the subject of contributory negligence as affecting his right to recover, and the court does so charge, the plaintiff may not thereafter claim that the trial court erred in charging the jury after argument on the issue of contributory negligence, on the ground that such issue was not in the case.

2. Although a subpurchaser of an inherently dangerous article may recover from its manufacturer for negligence, in the making and furnishing of the article, causing harm to the subpurchaser or his property from a latent defect therein, no action may be maintained against a manufacturer for injury, based upon implied warranty of fitness of the article so furnished.

3. If a charge to a jury is otherwise good so far as it goes, the omission of some matter which might have been included is not fatal and does not constitute reversible error, unless the omission was called to the attention of the court and an instruction requested. (Karr Adm'r v. Sixt, 146 Ohio St. 527, 67 N.E.2d 331, approved and followed.)

The plaintiffs, Kenneth T. Wood and Mildred Wood, brought this action against General Electric Company, hereinafter called General Electric, the Travelers Fire Insurance Company and the New Hampshire Fire Insurance Company to recover from General Electric damages in the sum of $36,189.28 for partial loss of their residence property and household goods and personal property located therein, and for the loss of rentals of such residence property, by reason of fire, claiming that such fire and consequent loss were caused by the use of plaintiffs of a defective and inherently dangerous electric blanket which had been manufactured and put upon the market by General Electric with the implied warranty that such blanket was of merchantable quality and reasonably fit for use as an article of bed clothing.

In a second cause of action the plaintiffs alleged that, after they had purchased the blanket in question and while using it for the purpose intended, it generated sufficient heat and fire from within the blanket to ignite other bed clothing and cause the fire and damage to plaintiffs' property, and that such fire and damage were proximately caused by the negligence of General Electric in certain specified particulars, among which were defective manufacture of the blanket, failure to inspect, and failure to warn.

Plaintiffs in their petition allege also that the defendant insurance companies, as insurers of this property, made settlement with them, and pray that such companies be required to answer and set forth what interest each has in the subject of the action.

The insurers filed answers and crosspetitions admitting that they were insurers against loss by fire of the residence property and personal property of the plaintiffs, and that they paid the plaintiffs the total sum of $26,321.55 in settlement of such loss. The companies pray for reimbursement, for the respective sums so paid, out of any recovery which may be adjudged against General Electric.

General Electric filed an answer admitting that it was engaged in manufacturing and selling electric blankets, denying that they were distributed through agents and that it was responsible for any fire which caused loss to plaintiffs' property, and alleging that, if it was in any way negligent as alleged in the petition, the plaintiffs themselves were negligent, which negligence directly and proximately contributed to cause any damage they sustained. A reply was filed by the plaintiffs denying negligence on their part.

The evidence submitted at the trial of the case tended to support the following facts:

In November 1946, plaintiffs purchased the blanket from an independent dealer. About December 15, 1946, the blanket was placed on Mr. Wood's bed located in their residence beyond the city limits of Columbus. He used the blanket each night until the fire occurred in the early hours of Sunday, February 2, 1947. At about one o'clock that morning he left his bed and went into the living room. In about 15 minutes Wood noticed an odor coming from his bedroom. He returned to the bedroom and discovered that the blanket was smoldering in three or four spots. There was no flame but the spots 'glowed like a piece of punk.' He 'yanked' the blanket from the bed pulled out the electric connection, 'grabbed' the blanket in his arms, carried it out of the bedroom, closed the door and, after attempting to stomp out the burning places on a brick hearth in the living room, threw the blanket into the driveway. Fifteen minutes later he returned to his bedroom where he found the mattress on the bed on fire. He attempted to extinguish the fire but, being unable to do so, called the fire department which extinguished the flames after considerable damage had been done to the residence and its contents. The insurance companies reimbursed Wood for the loss, to the extent above indicated.

A jury trial was had. At the close of plaintiffs' case, General Electric's motion for a directed verdict was overruled. This motion was renewed at the close of the entire case and was again overruled. The case was submitted to the jury after eight special instructions requested jointly by Wood and the insurance companies and a general charge. The jury returned a general verdict, nine members concurring, in favor of General Electric. A motion for new trial filed by Wood and the insurance companies was overruled.

From the overruling of the motion for new trial and the judgment entered on the verdict, an appeal was taken to the Court of Appeals for Franklin county, which reversed the judgment of the Common Pleas Court, on the ground that it erred in its general charge after argument, and remanded the cause to the Common Pleas Court for further proceedings.

The motion of General Electric to certify the record was allowed by this court and the cause is now here for review.

Richard V. Willcox and Isaac & Postlewaite, Columbus, for plaintiff appellees.

Ballard, Dresbach, Crabbe & Newlon, Columbus, for appellant.

HART, Judge.

The record discloses that the Court of Appeals reversed the judgment of the Common Pleas Court, on the ground 'that the Court of Common Pleas erred in its general charge to the jury after argument.' From the opinion of the Court of Appeals it appears that it concluded that in charging on contributory negligence the trial court did not limit the charge to the second cause of action based on negligence but applied it as well to the first cause of action based upon implied warranty and thereby may have erroneously precluded the plaintiffs' recovery on that cause of action.

The court, in its general charge, first read the pleadings to the jury and then charged the law as to the first cause of action. The court immediately charged the law as to the second cause of action and in that connection said:

'Now, members of the jury, further before plaintiffs could recover in this action in addition to those things which I have pointed out to you they must prove by that measure of proof which I have heretofore indicated, by a preponderance of the evidence, on greater weight of the evidence, plaintiffs' evidence must not show that they were guilty of contributory negligence, that is that they themselves did something that contributed to their own injuries complained of. If the evidence adduced by the plaintiffs gives rise to an inference of contributory negligence on their part then it is their duty to offer additional evidence to rebut or equalize the inference that has been created.

'The defendant, the General Electric Company, in their second defense set...