Fry v. Sears, Roebuck & Co.

*470 Fead, J. In 1930, plaintiff negotiated with defendant for a heating apparatus for his home and his gasoline station 70 feet away, informing defendant of his wants, his ignorance of heating systems and his reliance on defendant to furnish a proper one. The station was of stucco construction, contained a large oil room and two toilets, with solid ceiling, and an attic. Defendant installed steam heat in the home and a separate hot water system for the station. The hot water heater was put in the basement of the house and the water piped, below the frost line, to radiators in the station. Heat causes the water to circulate and, of course, to expand. In January, 1931, and also in March, expansion of the water from heating caused a radiator to blow out. Defendant repaired it and finally, to provide for expansion, installed a tank in the attic of the station. The system worked well until November, 1933, when the heater in the basement exploded and. caused considerable damage. The action is to recover for the damage, upon the grounds of breach of implied warranty that the system should be reasonably fit for its purpose, 2 Comp. Laws 1929, § 9454, and for negligence in installation. The only defect or negligence claimed, sufficiently supported by testimony to justify discussion, was that the tank should not have been placed in the attic where the water was more likely to freeze than in the room. Plaintiff had verdict of a jury and judgment. Defendant contends its motion for judgment notwithstanding verdict should have been granted. There was undisputed testimony that defendant ?s agent, at the time he inspected the premises shortly after the explosion, told plaintiff’s wife he thought the explosion was caused from the expansion tank and that the tank should not have been located in the *471 attic. The only expert opinion of the cause was that the water in the tank had frozen, thereby closing the outlet for expansion and casting the pressure back on the heater. The explosion occurred from one to five hours after plaintiff had started a fire in the heater. There had been no heat in the system for two or three days. There was testimony that the weather had been cold. Plaintiff, however, said there had not been any freezing weather “to amount to anything” before the day of the explosion and while, on that day, the weather had gotten colder and finally reached a temperature of five degrees above zero in the evening, it was not freezing when he started the fire; that he had flowers in the oil station and they were not frosted. Counsel discuss the location of the tank as a matter of negligence of installation and we will so treat it. The obligation of defendant was to furnish a system which would not only keep running but which would start safely under ordinary use. It was bound to anticipate that the fire would be out in warm weather, would be started when it got cold, and that people determine the time for a fire from the conditions about them. If, then, defendant put the tank in a place where the water was more likely to freeze than would be indicated by conditions surrounding plaintiff, knowing or having reason to anticipate danger therefrom, it would be guilty of negligence. The statement of defendant’s agent to plaintiff’s wife would carry the question of defendant’s knowledge of the hazard to the jury. If plaintiff had known the water was frozen, a different question would be here.' He did not know it. "Whether he should have anticipated ice in the system depends upon the weather. Thermometer *472 readings were not furnished. The conflict in the testimony leaves it uncertain whether a prudent person would have thought the tank might be frozen. The case presents issues of fact on both negligence and contributory negligence. Affirmed, with costs. Nelson Sharpe, North, Bhshnell, and Edward M. Sharpe, JJ., concurred with Fead, J.