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JANUARY 23, 1985




James Thomas filed suit in the Circuit Court of Washington County, Mississippi, against Munson Machinery Co., Inc., [Munson] formerly Munson Mill Machinery, Inc., for personal injuries sustained while he was cleaning the interior of a chemical mixer. The declaration was based on strict liability in tort and general negligence. Upon a stipulation of fact by the parties and agreement that the case be

submitted to the trial judge on the issue of whether or not a summary judgment should be granted, the trial judge, Honorable B. B. Wilkes, found that there was no material issue of fact and, on a question of law, the plaintiff had not stated a case against Munson. Therefore, the trial judge sustained the motion for summary judgment, dismissed the declaration, and the plaintiff Thomas has appealed here.

 The sole question before this Court is whether or not the lower court erred in sustaining appellee's motion for summary judgment.

 The record before the lower court on the motion for summary judgment consisted of (1) the plaintiff's declaration and the defendant's answer thereto, and (2) the stipulation of the parties. The lower court considered the stipulation as if it were a joint affidavit of the parties which fully complied with all the requirements of Rule 56 respecting affidavits. In making a finding of fact, the lower court adopted verbatim the stipulation of the parties, pertinent parts of which are set forth in the Appendix.

 The chemical mixer, alleged to be the defective culprit in this case, was manufactured prior to 1959 by appellee, was sold by it during the year 1959 to Olin-Mathison Corporation [Olin], and was shipped to Olin's plant in East Omaha, Nebraska. Before the mixer could be operated and used, an electric motor, electrical motor starter and switches were required to be installed in it. When sold by appellee to Olin, the mixer was not equipped with any of those parts, and it was the responsibility of Olin to acquire and install the electrical parts before Olin could put the mixer into operation. Appellee did not manufacture the electrical motor, motor starter, wiring and switches, or sell them to Olin, nor did it participate in the selection by Olin of those parts and equipment, or in the installation of such parts in the mixer by Olin. Appellee specifically advised Olin in writing at the time Olin purchased the mixer:

 It is suggested that a suitable fused disconnect switch be installed in the power line ahead of the motor starter so that in the event of repairs being needed, it will be possible to shut off power so that there will be no chance of accident.

 At sometime subsequent to installation of the electrical equipment in the mixer, Olin moved the machine from its plant in Nebraska to its plant in Washington County, Mississippi, and reinstalled it for use in the Mississippi plant. Appellee did not participate in any manner in the

 moving or reinstallation of the machine in Mississippi. The accident in which appellant was injured, occurred in 1973 in Washington County, Mississippi, approximately thirteen (13) years after the sale of the mixer by appellee to Olin. Appellant contends that the mixer was defective in that (1) it was not equipped with any fail-safe device which would prevent the mixer from operating when the door was open, (2) it was not equipped with any device which would shut off the mixer after part of a human body was caught in it, so as to minimize the injury, and (3) there was nothing on the mixer warning users that it was in an unreasonably dangerous condition by reason of the other alleged defects.

 In our opinion, Mississippi law has stated principles which control this case. State Stove Manufacturing Co. v. Hodges, 189 So. 2d 113 (Miss. 1966). State Stove was the manufacturer of hot water heaters. One such heater was installed by the firm of Yates and Gary. Subsequently, the heater exploded, destroying the Hodges residence and its contents, and Hodges brought suit for damages against State Stove, the manufacturer, and Yates and Gary, the installer. State Stove had installed two thermostats controlling two heating units in the water heater and a plastic dip tube or pipe designed to carry cold water from the top to the bottom of the tank, all said installations being performed at State Stove's factory as a part of the manufacturing process. The completed hot water heater was sold and shipped in a cardboard box and was ultimately purchased by Yates and Gary and installed by them in the Hodges residence.

 State Stove included written instructions, which accompanied the water heater, and specified that a combination temperature and pressure relief valve should be placed on the water heater by the person installing it. Yates and Gary did not follow those instructions but, instead, they put only a pressure relief valve and check valve on the water heater and no temperature control valve. Seven months after the water heater was installed in the Hodges home, the explosion and fire occurred.

 The facts established in State Stove indicated that (1) the two thermostats installed by State Stove at the factory failed to work properly; (2) this allowed the temperature in the tank to rise to a point where the plastic dip tube melted, preventing cold water from passing from the top to the bottom of the tank; (3) which in turn permitted pressure to build up to a point where the hot water heater exploded; and (4) if Yates and Gary had installed a temperature control valve, as instructed by State Stove, it would have cut off the heating units before such pressure

 built up and, therefore, the explosion would not have occurred. In State Stove, the Court held:

 State Stove has no liability here, under Restatement section 402A, (1) because the water heater as manufactured was not in" a defective condition unreasonably dangerous to the user or consumer or to his property "; and (2) because it was not expected to and did not reach the Hodges" without substantial change in the condition in which it * * * (was) sold. "(3) Further, the negligent failure of Yates and Gary, through their agent Pittman, to follow the instructions of the manufacturer in ...

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