Blum's, Incorporated v. Cowhig

Adkins, J., delivered the opinion of the Court. John D. Cowhig, appellee, was injured by falling against a lighted gas stove which he purchased from Blum’s, Incorporated, the appellant; whereupon he brought suit on an alleged express warranty by the defendant through an employee. The amended narr. alleges that the gas heater was purchased at the store of the defendant on December 24th, 1925, and the sale was made by an employee of the defendant, acting in the course of his employment and knowing the ¹²³ purpose for which the heater was to be used; that said employee of defendant represented to plaintiff that the heater was all right and ready for service and could be used by plaintiff; that relying’ upon said representation which, it is alleged, was made for the purpose of inducing plaintiff to purchase said heater, plaintiff purchased the heater and paid for same; that the said representation was untrue, and that the heater was defective, in that there was no air shutter attached thereto-, so that when gas was conveyed into the heater, and it was lighted in tire manner directed by the defendant’s employee, it produced a certain odorless, insiduous and extremely dangerous gas; that on the day of the purchase of the heater, and while plaintiff was using it in the manner directed by defendant’s employee and in accordance with his direction, it generated and discharged into the room occupied by plaintiff a large quantity of said poisonous gas, of which fact plaintiff was ignorant, whereby plaintiff was poisoned by inhaling the fumes thereof, was rendered unconscious, and caused to fall upon the heater, and to be terribly burned and disfigured and permanently injured. Defendant demurred to- the declaration, the demurrer was overruled, and defendant filed the general issue pleas in assumpsit, on which issue was joined.

At the trial, plaintiff, testifying in his own behalf, said that he paid $2.50 for the stove, the salesman representing it to be ready for service; that he went to a hardware store and bought a metal tube and went back to his room and set the sto-ve down on the floor and fooled around for awhile and finally decided he would try the stove out, so- he unwrapped it, got the valve out of his pocket, attached it to the end of the stove, attached one end of the tube to the valve and the other end to the bracket on the wall, and wrapped a string around it; that he tested out the connection on the wall with a lighted match, and found there was no leak, and then opened the stove valve and lighted the stove; “seemed to- be all right. Seemed to be burning, and after I seen she was burning all right T fooled around the room, and kept looking back at it now and then; I didn’t see nothing wrong with it * * * so finally ¹²⁴ I lit a cigarette, sitting there smoking, and finally I felt kind of dizzy like. * * * I did not know what to make of that, * * * and I still looked hack at the stove, and it seemed like it was burning all right, and then I kind of got dizzy headed, and I felt like something was wrong, so I got up and walked around the bed, around the end of the bed, with the intention of shutting the gas off, that is on the wall, * * * and the last I remember was reaching for this gas jet up there and shut it off, I must have fell, or something or other * * that as far as he knew he was overcome with escaping gas and his right arm was burned. The witness further testified that the wall bracket was defective. Another witness, Henry E. Felty, testified that, when plaintiff failed to come down stairs at the usual time in the afternoon, he went to his room and found him on the floor with his arm against the heater; witness carried him out of the room, opened the windows, and called several doctors, and the gas company for a pulmotor.

After doing this, and in the few minutes before the arrival of a doctor or the pulmotor, witness, leaving the unconscious man alone in the hall, according to his testimony, did some experimenting with the view of finding out what was the matter with the stove. He testified that the stove had no air shutter; that he tested the tube connections with a lighted match and found no leak; when he tried to light the stove it lit very slowly half way back and when he tried it at the other end it lit very slowly and the flames came together, but in a few seconds it popped back to the gas cock, where the gas goes into the burner. The same thing happened when he tried it in his own room. Two other witnesses, testifying as experts, said that the function of an air shutter on a gas heater of this type is to