Biggs, Freedman and Stahl, Circuit Judges. Freedman, Circuit Judge (dissenting).
On October 18, 1965 a fire destroyed a commercial bowling establishment in Ridgway, Pennsylvania, owned and operated by the plaintiffs-appellants, the Bogackis, husband and wife. The physical plant was completed in July 1958 and consisted of a one-floor concrete block shell, with a permastone facade and a "Rilco" laminated wood 50' x 135' "Otruss" roof. The construction of the unit, excepting the plumbing and electrical work, had been done by John F. Bogacki. The building contained eight automatic "pinspotters", developed and marketed by the defendant-appellee, American Machine & Foundry Company, "AMF". The pinspotters were located in the rear at the west wall of the building and between them and the back wall was a five-foot aisle, in which Bogacki stored tools, lacquer, and other materials employed in the alleys' routine maintenance.
The bowling machines were operated by an electric "brain". The electric power to the pinspotters was controlled by a "manager's control" switch near the front of the bowling building. This switch allowed an attendant to cut off the power to any bowling lane or combination of lanes and was coordinated with certain metering devices. This switch was "energy-limiting", i.e., a switch which limited the power in the circuit to a harmless level in the event of malfunctioning. There was a "master control" switch, a circuit breaker, at the rear of the building. The master control switch when thrown out of circuit would cut all electricity from the bowling machines. Both switches had to be closed in order for the pinspotting machines to operate.
The operation of the bowling lanes was as follows: When the ball struck the pins it rolled toward the back of the alley and hit a cushion, activating a "stepper" relay. This device, located in the "brain", caused a "sweeper" and a "table" to lower themselves into the lane. The sweeper pushed the fallen pins off the lane, and the table picked up those pins which remained standing. The fallen pins were then pushed back against a cushion by a sweeper which arranged them in an elevator mechanism. The elevator mechanism carried the pins back up to the table setting them in place for the next bowler.
The pinspotters were installed by AMF seven years before the fire on a lease basis. Paragraph 3 of the lease stated as follows: "It is mutually agreed that any defects appearing more than one year after installation date shall be deemed to be due to ordinary wear and tear, but AMF will repair or replace, free of charge, f.o.b. factory, any parts of the machines which are defective in workmanship or materials and are returned within one year from the installation date. Operator acknowledges that all emergency service or repair calls shall be at Operator's expense at then prevailing rates, notwithstanding the preceding sentence. Operator shall not make any addition, subtraction or alteration affecting the machines without the consent in writing of AMF, which consent shall not be unreasonably withheld, shall promptly notify AMF of any noticeable defects in the machines and shall maintain the machines and keep them clean and free from dust in accordance with the manual of instructions furnished by AMF. In no event shall AMF or the manufacturer of the machines be liable for any loss to Operator caused by the operational failure of the machines." By the terms of the lease AMF was required to service the machines by its service men and to repair parts. The Bogackis agreed to make use only of AMF parts and service and to keep the machines in good condition and to replace worn and damaged parts.*fn1
Bogacki maintained the machines and to some extent carried out the routine repairs suggested by AMF service men. It appears from the record that the machines were not kept in good repair.
On Friday, October 15, 1965, Neals, a part-time employee of the Bogackis, was told by a group of women bowling on lane No. 5 that the pinspotter had ceased to operate. Neals examined the machine and got it started again but the stoppage recurred and when Neals went to fix it the second time he noticed arcing and sparking around the pinspotter. Neals transferred the women bowlers to another lane and shut off the machinery of lane No. 5 by the "manager's switch" at the main desk. Neals testified that on both occasions the machine had "kicked out" by the operation of a thermal-overload safety device, and that he had informed Bogacki of the situation. Machine No. 5 was in use the following day, Saturday, on Sunday and also on Monday evening, October 18, the day of the fire.
Bogacki was in charge of the alleys on Monday evening. He testified that he, along with several others, shut down the alleys, turned off the "foul" and "trouble" lights, and "from there we * * * [went] to the manager's control box and shut the rest of the lights off in the building. * * *" These incidents took place about 10 P.M. The master control switch, the circuit-breaker, however, was not turned off. AMF had originally instructed Bogacki that the circuit-breaker, which would cut off all electricity to the building, was never to be turned off. AMF insists that later instructions were given by it to Bogacki in 1962 that he should cut off all electricity from the building when it was empty by pulling the master switch. The nature of the instructions given and received by Bogacki was, of course, a question of fact to be determined by the jury.
Bogacki further testified that after he closed the alleys he went to a nearby restaurant operated by his father where he remained for about an hour, then joined his wife at their home, located about a thousand feet from the bowling establishment. He stated that he remained there for about ten minutes when he saw the electric lights dim. Desiring to determine whether his neighbor's lights were affected as well as his own he went upstairs, looked out the window and saw that the bowling establishment was on fire. His father testified that he closed his restaurant at about 11 P.M. and went to his apartment in the same building. He soon heard one of his employees pounding on his door shouting to him that the bowling building was on fire.
The Bogackis, father and son, testified that flames were shooting through the roof at the rear of the bowling building and above pinspotters Nos. 5 and 6. There were heaters and other electrical equipment in the building which conceivably could have caused the fire. Father and son testified that when they ran from their homes the fire was so advanced that it was impossible to enter the bowling building. By the time fire companies arrived, the building and its contents had been virtually destroyed.
The complaint was based upon negligence, but the pretrial statement of the Bogackis contains the following language: "At the time of trial, plaintiffs will prove that defendant was guilty of a breach of its expressed and implied warranties. Plaintiffs will also prove that defendant was guilty of installing defectively designed equipment on plaintiffs' premises in that said equipment was designed and manufactured in such a manner so as to permit an electrical fire to occur in said equipment and in negligently failing to inspect the said equipment at the time the equipment was installed, principally the No. 4 and 5 pinspotters."
In their pretrial statement the Bogackis spoke of "expressed and implied warranties". Though they stated that AMF was guilty of "installing defectively designed equipment" they made no mention of the application of the doctrine of "strict liability" or of the Uniform Commercial Code. The pretrial statement also alleged failure of AMF to inspect the bowling equipment. The parties agreed to dispense with pretrial aside from their brief pretrial statements.*fn2 At the trial the Bogackis produced sufficient evidence to warrant a submission to the jury of a finding that AMF's bowling equipment was defective and that the fire resulted from defective equipment.*fn ...