On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant and Burling. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
This appeal is from the granting of a motion made by the defendant to dismiss the action at the close of plaintiff's case. Rule 3:41-2. While the appeal was from the Superior Court, Law Division, Essex County, to the Appellate Division it was certified here on our own motion.
The basic question involved is whether the evidence presented by the appellant, together with the most favorable inferences legitimately to be drawn therefrom, was sufficient to present a jury question as to whether or not there was a breach of an implied warranty on the part of the defendant-respondent.
The complaint was in two counts, the first grounded in negligence, the second on an alleged breach of an implied warranty, and sought damages resulting from an explosion and fire. The first count was abandoned.
The proofs showed appellant's plant, located in Newark, was heated by an oil-fired steam system equipped with an "Enterprise" oil burner with a pre-heating unit. Such equipment is known as an industrial installment, designed to burn industrial or heavy grade fuel oils known as grades No. 5 and No. 6. Grade No. 6 oil is of very heavy consistency and cannot be burned effectively without pre-heating, No. 5 can be used satisfactorily in most instances without pre-heating, but No. 2 flows and burns without pre-heating and if pre-heated in equipment designed to burn No. 5 and No. 6 oil vaporizes and reaches its flash point in the pre-heater.
Respondent is and has been engaged in the fuel oil business for many years and for about two years prior to January 2, 1948, appellant obtained all its fuel oil requirements from it,
deliveries being made once or twice a week. The practice was that whenever oil was needed appellant merely called respondent, whereupon a delivery was made. At no time had appellant ever specified either the grade or quantity of oil. Respondent during all the time delivered either No. 5 or No. 6 oil. There was also evidence, of slight probative value, that on one occasion respondent had serviced appellant's oil burner.
On January 2, 1948, appellant, as was its custom, notified respondent it needed oil and two hundred gallons of No. 2 grade were delivered. Respondent did not advise appellant of the propensities or characteristics of the No. 2 oil nor did it advise it to eliminate or disconnect the pre-heating unit. One of appellant's employees, who was in charge of the heating equipment, received the oil and could have known from the delivery slip that No. 2 oil was delivered. He testified he knew the difference between No. 2 and No. 6 oil, that the former is lighter, but that he did not know the oil burner would not properly burn the No. 2 grade.
When the No. 2 oil passed through the pre-heater it vaporized and then passed into the combustion chamber of the burner, where, upon ignition, the explosion followed by a fire occurred. It is the damages resulting from this fire and explosion which appellant seeks to recover.
An expert witness produced on the part of the appellant testified the explosion and fire were caused by the use of the No. 2 oil.
The trial court granted defendant's motion for dismissal on two grounds, (1) that there was no implied warranty under the facts in the case, and (2) that the plaintiff should have negatived the possibility that ...