(dissenting).
In my opinion the judgment should be affirmed. The ultimate facts appearing in the record support a finding by the jury that it was the duty of appellant to furnish a refrigerator with a safe tube for the drainage of the sulphur dioxide refrigerant if such drainage became necessary for the operation of the refrigerator or for its proper repair.
The ultimate facts also support a finding that sulphur dioxide, when vaporized and retained under pressure, is a dangerous explosive to persons in its immediate vicinity when suddenly released.
Viewing the facts most favorably to ap-pellee, it is clear that the jury was justified in finding that appellant impliedly represented that the sulphur dioxide could be safely drained from the refrigerator for the purpose of repairing it and that appellant knew, or by the exercise of ordinary care could have known, that because of concealed defects in the drainage line it was dangerous to a person using the appliances on the refrigerator for drainage of the refrigerant.
It is well settled that a manufacturer who delivers an article, which by the exercise of ordinary care he should know to be dangerous to another person, without notice of its nature and qualities is liable for any injury which may reasonably be contemplated as likely to result, and which does in fact result, to that person or any other who is not himself at fault. Lewis v. Terry, 111 Cal. 39, 43 P. 398, 31 L.R.A. 220, 52 Am.St.Rep. 146; Devlin v. Smith, 89 N.Y. 470, 42 Am.Rep. 311; McLeod v. Linde Air Products Company, 318 Mo. 397, 1 S.W.2d 122, 123; Restatement of the Law of Torts, Sections 394 to 398 inclusive.
In my opinion the majority is clearly wrong in concluding as a matter of law that appellant was free from fault and owed no duty to appellee on the theory that a refrigerator or its refrigerant is in no sense a dangerous instrumentality.