Barabe v. Duhrkop Oven Co.

Bbaley, J. The exceptions to the instructions are not well taken, and the presiding judge rightly submitted to the jury the question of the defendant’s liability. It manufactured and installed for the plaintiff Alcid A. Barabe one of its patent baking ovens in accordance with the terms of a conditional contract, under which title did not pass to the vendee upon completion and installation but was to be transferred by a bill of sale when the contract price had been fully paid. The plaintiff, who never has acquired title, used the oven in his bakery, and within four months from the date. of the contract and while it was being operated at the requisite temperature for baking bread, fire broke out between the top of the oven and the ceiling, which the jury would have been warranted in finding was caused solely by the [468] defendant’s negligent workmanship. The defendant had bound itself to furnish an oven which was not defective when subjected to the conditions of operation shown by the contract.. And the jury were correctly instructed that, while the defendant was under no obligation to remove the truss-beam directly over and in contact with the masonry of the arch at the top of the oven to which, as the jury could find, the fire bursting through the bricks was communicated because the interstices had not been sufficiently filled with mortar, it was required to use reasonable care to protect the truss-beam from combustion. If the company’s faulty performance of-the work caused the fire, it is liable in damages even if the exact form in which injury to the plaintiff might result was not foreseen. Hill v. Winsor, 118 Mass. 251. Dulligan v. Barber Asphalt Paving Co. 201 Mass. 227, 231. D’Almeida v. Boston & Maine Railroad, 209 Mass. 81, 88. The plaintiff in the second case is the mother of Alcid, and, when the oven was built and when the fire occurred, she was the owner of the "real estate” occupied by her son for the purposes of his business. It is contended that the verdict assessing damages for the injury to the buildings should be set aside because the fact of her ownership was unknown to the defendant and no contractual relations existed between them. The defendant, even if the contractee .used that part of the premises where the oven had been placed, owed to the plaintiff as the landowner the duty of not causing injury to her property by its tortious acts or misfeasance. It was uncontroverted that it had annexed to the premises 'an oven to which it retained title under a contract, the performance of which by the conditional vendee until he acquired the ownership recognized the maintenance and use of the oven as previously stated. If the jury found that, when so used and because of insufficient construction, it became a dangerous instrumentality which would be likely to set the plaintiff’s building on fire, the defendant is liable in damages. Derry v. Flitner, 118 Mass. 131, 134. Gorham v. Gross, 125 Mass. 232, 240. Bickford v. Richards, 154 Mass. 163, 164. Dulligan Barber Asphalt Paving Co. 201 Mass. 227, 231. Standard Oil Co. v. Wakefield, 102 Va. 824, 832. The cases of Lebourdais v. Vitrified Wheel Co. 194 Mass. 341, 343, and Leavitt v. Fiberloid Co. 196 Mass. 440, which hold that where the article or instrumentality is not of [469] itself inherently dangerous, “ a vendor who makes no representation is not liable to a remote purchaser of the article sold, for damage done by defects in it,” are manifestly distinguishable. Glynn v. Central Railroad, 175 Mass. 510, 512. The exceptions in each case must be overruled. So ordered.