dissenting:
I respectfully dissent on two aspects of the case.
I.
First, I would agree with the Court of Appeals’ holding that:
“. . . Whenever a person holds himself out as specially qualified to perform work, the common law implies a warranty that the task will be executed in a workmanlike manner and the result will be reasonably fit for its intended use. Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 12 Cal.Rptr. 257, 360 P.2d 897; In re Estate of Talbott, 184 Kan. 501, 337 P.2d 986; McCool v. Hoover Equipment Co., 415 P.2d 954 (Okl.). . . . This warranty is particularly important where, as in this case, there is substantial risk of disastrous consequences if the work is not performed carefully and the purchaser lacks the expertise needed to evaluate the quality of the workmanship or to discover defects.”
Although the Court of Appeals treated the contract as one for the furnishing of services, as did the majority above, in my opinion the facts justify treating the contract as one for the furnishing of labor and materials. To me this is the more appropriate approach.
In the Hobbs-Sesack Plumbing Co. case the defendant contracted to furnish the necessary labor and material to install a radiant heating system in a house being constructed by the plaintiff. It appears that the heating system was installed in a work*162manlike manner and that the pipe was of good quality, as here, but that the pipe was not reasonably suitable for the intended use, also, as in the present situation. The pipe, in the California case, which was laid in a concrete floor slab, leaked because of corrosion. The corrosion was caused by breaks in the plastic covering which are normally caused in the course of installation, by workmen stepping on the pipes or from the stones in the concrete.
In any event, the California court concluded that the contract was one for labor and material and that there was an implied warranty, stating, following the citation of In re Talbott’s Estate, supra, among others,
“. . . These cases support the proposition that although the provisions of the Uniform Sales Act with respect to implied warranty (Civ. Code, §§ 1734-1736) apply only to sales, similar warranties may be implied in other contracts not governed by such statutory provisions when the contracts are of such a nature that the implication is justified.”
The Kansas Supreme Court, In re Talbott’s Estate, supra, in a situation comparable to that confronting this court, held,
“. . . it is generally recognized that when a party binds himself by contract to do work or perform a service, in the absence of express agreement, there is an implied agreement or warranty, which the law annexes to the contract, that he will do a workmanlike job and will use reasonable and appropriate skill [citing cases].”
In McCool v. Hoover Equipment Co., supra, the Supreme Court of Oklahoma held that where service predominates and transfer of personal property is only incidental to transaction, it is transaction for work, labor and materials and not a sale. Oklahoma following the Hobbs-Sesack Plumbing Co. case, supra, then quoted the following from that opinion:
“There may nevertheless be an implied warranty. It was said in Gagne v. Bertram, 43 Cal.2d 481, 486, 275 P.2d 15, that for historical reasons warranties have become identified primarily with transactions involving the sale or furnishing of tangible chattels but that they are not confined to such transactions. Several cases dealing with construction contracts and other contracts for labor and material show that ordinarily such contracts give rise to *163an implied warranty and that the product will be fit for its intended use both as to workmanship and materials. ” (Cases cited.)
II.
I disagree on Part III. I would hold that the “accident” occurred at the time the pipe was laid. The breach of the implied warranty to use reasonable and appropriate care and skill, that is, to do a workmanlike job may have resulted from the negligence or failure to use due care and skill at the time of performing the particular job. The cause of action accrued at that time. In re Talbott’s Estate, supra.
Since it is the breach of a contractual duty — the implied warranty — which gives rise to the cause of action, plaintiffs could have proceeded immediately following the breach and could have recovered nominal damages for placing the pipe in the ashes without a proper protective coating, or whatever might have been their damages to that point. In re Talbott’s Estate, supra.
I agree with the trial court that the “accident” was a continuing process which began when the pipe was allegedly negligently installed and culminated in the explosion over five years later. Liability attached at the time of the breach; damages, other than nominal, occurred at the time of the explosion. Travelers v. Humming Bird Coal Co., 371 S.W. 2d 35 (Ky., 1963); Kissel v. Aetna Casualty & Surety Company, 380 S.W. 2d 497 (Mo. App. 1964).
This situation is analogous to the accident-injury philosophy found in workmen’s compensation cases. The time for filing claim does not run from the time of accident, but from the time the claimant, as a reasonable man, is able to recognize the compensable character of his “injury” resulting from the “accident.” City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).
I would hold that the breach occurred during the term of the insurance policy and that the judgment of the Court of Appeals on this aspect of the case be reversed.
MR. CHIEF JUSTICE PRINGLE joins in this dissent.