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CHILDS v. AUSTIN SUPPLY CO. (09/25/62)

September 25, 1962

CHILDS
v.
AUSTIN SUPPLY CO., APPELLANT.



Appeal, No. 457, Jan. T., 1961, from order of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1957, No. 1661, in case of Willie Childs v. Austin Supply Co., Inc. Order reversed.

COUNSEL

John J. Tinaglia, with him Michael A. Foley, for appellant.

Stanford S. Hunn, with him Benjamin Goldman, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Jones

[ 408 Pa. Page 404]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This appeal challenges the propriety of the action of a trial court, following a verdict for the defendant in an assumpsit action, in granting a new trial solely on the ground that the instructions of the trial court to the jury failed to clearly delineate the issues to the jury.

H. Schwartz & Son (Schwartz) in December, 1956, purchased from Austin Supply Company, Inc. (Austin) two Salamander Hi-Low Heaters. These heaters were manufactured in California by a company which is not a party to this litigation. One of these heaters, the fuel for which was kerosene, was placed by Schwartz in an unheated garage to provide temporary heat for its employees working there. From December 1956 to April 8, 1957 the heater was in almost daily use without incident.

On the afternoon of April 8, 1957, Willie Childs, an employee of Schwartz, feeling chilly, commenced to

[ 408 Pa. Page 405]

    light the heater. He lit a match, bent over the heater, smelled the odor of kerosene, opened the regular lever and dropped a match into the aperture of the heater provided for that purpose. An explosion occurred, causing flaming fuel to be expelled from the heater, burning and injuring Childs.

Contending that the heater was not safe for industrial use and that Austin had impliedly warranted it to be safe, Childs instituted an action of assumpsit against Austin in the Court of Common Pleas No. 7 of Philadelphia County. After a seven day trial before Judge GERALD A. GLEESON and a jury, the jury returned a verdict in favor of Austin and against Childs. Childs filed a motion for a new trial which Judge GLEESON granted and from the grant of the new trial Austin took this appeal.

In granting a new trial, the trial court assigned only one reason therefor: "The Court erred in its charge to the jury. It is on this ground that we feel the plaintiff's argument has merit. The case was tried on the theory of an implied warranty of merchantability. While this is specifically alluded to in the charge ..., nevertheless the Court feels that the portion of the charge transcribed on pages 642 to 653 of the notes of testimony failed to clearly delineate the issues involving breach of warranty. On the ...


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