had been installed on the pump at the Yellow Cab garage because the abuse given other hoses had resulted in their being crushed and unsuitable for use. A peculiar characteristic of this hose, however, defendants' experts testified, was that because of the wire mesh construction, the bore of the hose, when stretched, tended to decrease at a rate greater than the length increased, resulting in a sharp reduction of volume and corresponding sharp increase in pressure, which, when transmitted back along the pipe to the meter head casting, caused the fracture.
Defendants' evidence tended strongly to exonerate them of any negligence based on improper maintenance. The demonstrations, while not conclusively establishing the cause of the casting fracture which precipitated the fire, are more persuasive than plaintiffs' theory, unsupported as it was by any evidence that the valves in fact were inoperative because clogged, and questioned as it was by defendants' undercutting its engineering soundness. The contention of the defendants, that the fracture was caused by a sudden jerk on the hose and could be caused thereby even under optimum working conditions, is entitled to more credibility and hence to be accorded more weight in formulating the decision of this Court. Plaintiffs' argument, that if a casting in a properly maintained pump could be fractured by a jerk, a casting in an improperly maintained pump could be fractured more easily, assumes its conclusion and is at any rate speculative. It is the finding of this Court, based on all the evidence, that plaintiffs have failed to meet their burden of proof on the issue of Humble's negligence based on improper maintenance.
At this juncture, plaintiffs have chosen to adopt another theory of negligence and base their theory on all the evidence, including defendants', as it is their right so to do. Under this theory of negligence, plaintiffs contend that Humble was negligent in installing a Flexsteel hose on the pump when it knew or should have known of the probable consequences of such an installation. They argue that the tendency of the hose bore to decrease sharply and the internal pressure to increase correspondingly when the hose was jerked created an unsafe condition which would have become evident had Humble adequately tested such an assembly before authorizing the installation of the Flexsteel hose on the pump at the Yellow Cab garage. The answer to this argument lies in a consideration of the duty of Humble to exercise a reasonable degree of care in its maintenance of the gasoline pump on the plaintiffs' premises. Testimony showed the following: The pump and meter assembly was of a type which had been manufactured and in use throughout the industry since the 1930's. Underwriters' Laboratories approval had been given to this type of assembly from the beginning. The Flexsteel hose, manufactured by a large and reputable concern, was of a type first approved by Underwriters' Laboratories for installation on gasoline pumps in 1957 and had been on the market in Erie since 1960 or 1961. Jabe Construction and Equipment Company, the contractor retained by Humble for maintenance of pumps at locations selling or using its petroleum products, reputedly had the most competent service staff in the area, and had been similarly retained by other major oil companies. The question then refines itself to this: Considering the physical properties of Flexsteel hose, and given the possibility that a driver might pull away from the pump while the hose nozzle was still in the filler pipe of his car, could Humble reasonably be expected to foresee the probability of such a driving away with the consequent jerk, reduction in bore, increase in pressure and meter head fracture? The answer to this question in this case must be negative. Nor do the instances, real or otherwise, of motorists pulling away from service stations with the nozzle still in the filler pipe, avail the plaintiffs in this matter of foreseeability, for they deal with situations where there is an attendant, i.e., where the person who does the driving away is not the person whose business it is to mind the nozzle, as was the case at the Yellow Cab garage.
Nor can it be said that the happening of a similar casting fracture, ten days before the accident, is sufficient to put Humble on notice of the potential danger of the installation. There has been no showing that such a danger could have been discerned within that time - in fact, the possibility of a causal relationship between the hose and the facture was one which was discounted by plaintiffs' expert until seeing the demonstration.
On the basis of all the evidence, it is again clear that plaintiffs have failed to meet the burden of proof required to establish the liability of Humble based on negligence in supplying a hose for the pumping unit at the Yellow Cab garage.
As an alternate ground of recovery, plaintiffs contend that defendants are liable under the rule of strict liability announced in Section 402A of the Restatement of Torts, Second, which was adopted by the Supreme Court of Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Briefly stated, Section 402A imposes liability upon a seller for damage caused by a product sold - "in a defective condition unreasonably dangerous" - to the user's property even though the seller - "has exercised all possible care in the preparation and sale of his product." The Webb case applied Section 402A to impose liability upon a beer distributor for personal injury damages suffered when a beer keg exploded. Plaintiffs contend that the gasoline pump assembly, although merely a conduit through which the gasoline sold them by Humble passed, is analogous to the keg in the Webb case, and/or was a "container" within the meaning of Comment h to Section 402A. Additionally, plaintiffs assert that Humble is liable under Section 402A as the supplier of the pump assembly, including the hose.
The last assertion will be disposed of first, so that those preceding it can be considered in more detail. Section 402A is applicable, by its very terms, to sellers. Since the Restatement provides rules for lessors of chattels at Sections 407 and 408, and makes no mention of lessors in Section 402A, it is apparent that this section is not intended to be applied to any but sellers. It is stated plainly in Comment f: -
"The rule stated in this Section applies to any person engaged in the business of selling products for use or consumption."
The evidence showed that Humble was not in the business of selling pumps. It showed, to the contrary, that the pump in question was purchased by plaintiffs from Cemico and sold, still in place, to Humble who then leased it to plaintiffs. To find Humble liable under Section 402A because it furnished the pump assembly would thus be contrary to both the law and the facts of the case.
To return to the container theory of liability under Section 402A: It clearly appears from the cases cited by plaintiffs under this theory that the containers and the things contained were, in the words of Comment h, - "an integrated whole," which had proceeded from manufacturer to consumer as a "unit." Ordinarily, this Court might be reluctant to extend the container theory to a conduit, but in this instance, such an extension is not necessary, for even if it were made, plaintiffs still would not, on the basis of all the evidence, be entitled to recover under the rule of Section 402A.
Comment h to Section 402A begins: -
"A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling * * * the seller is not liable."