I find no evidence of breach of implied warranty in this case.
Assuming that freezing of the expansion tank caused the explosion of the coal heater (an assumption the master plumber, called by plaintiff to install repairs and to testify, would not indulge), was such freezing a breach?
The master plumber, called by plaintiff, testified:
"Q. Mr. Henry, from your experience with plumbing and heating apparatus, from your examination of this situation as it is here, or was at that time, and the system as you know it to exist, did you draw any conclusions as to the cause of that explosion?
"A. No.
"Q. You didn't?
"A. No. I could not draw any conclusions. The only thing, we provide a safety on these heaters so there is no possible chance of any danger in any way. Such a safety wasn't on this heater. There was no safety valve, except just running back to the expansion tank. There is a possible chance of the expansion tank being frosted over and the pressure generated in your heater. * * *
"The only thing that can go wrong with the expansion tank is that it might freeze up. It could be left a period of time in the station without any heat on, depending upon this coal heater, and if it froze *Page 473 up, naturally there would be no place for the excess heat to go. A safety valve would take care of that. * * *
"Q. What do you think happened to cause this explosion?
"A. I don't know.
"Q. You have no idea?
"A. No. * * *
"Q. Now, given a situation where there has been no fire for a couple of days in the hot water heater, atmospheric conditions five, degrees above zero, would that be cold enough to freeze up that system?
"A. Absolutely. * * *
"Q. Well, if this system had frozen solid, if there had been a safety valve on the heater, would this explosion have occurred?
"A. A safety would have protected the residence."
Subsequent installation of a safety vent on the heater was but an additional precaution and it was not at all subject to call for service in conjunction with the expansion tank. If the expansion tank froze it was while the hot water heating plant was left out of service during extremely cold weather, and this was the fault of plaintiff and not of the heating system.
Until the cause of the explosion is ascertained and traced to breach of implied warranty of suitable equipment and proper installation there can be no recovery.
The rule, res ipsa loquitur, is without operation in this jurisdiction.
The judgment should be reversed, with costs to defendant, and without a new trial.
POTTER, C.J., concurred with WIEST, J. BUTZEL, J., did not sit. *Page 474