Lewis, Roca, Scoville & Beauchamp and Walter Cheifetz, Phoenix, for appellant.
A. E. Farone, Phoenix, for appellee.
This is an appeal from a judgment in favor of Albert J. Wild, dba Air Conditioning Supply Company, defendant-appellee, in an action brought by Canadian Fire Insurance Company, appellant, as assignee-subrogee, upon an implied warranty in the sale of a 7 1/2 ton Clime-Matic Home Refrigerating unit by defendant, to one Clarence Levey, which is alleged [81 Ariz. 253] to have been in a dangerous and defective condition at the time of sale and delivery to him. We shall refer to the parties hereinafter by the designation used in the lower court.
The facts are that the defendant, Wild, was engaged in business as the Air Conditioning Supply Company in Phoenix, and, on April 30, 1954, sold to Levey the refrigerating unit here involved. On the following June 5, the unit exploded, completely destroying it and it is alleged did some damage to the Levey home. Plaintiff had previously issued to Levey an insurance policy upon his home agreeing to indemnify him against loss by fire
or explosion, and in due course, on September 2, 1954, paid to Levey the sum of $2,233.27 as indemnity for the loss sustained as a result of such explosion and was thereby subrogated to Levey's rights therein.
The physical installation of the unit was made by Saffell Air Conditioning Co., at least a part of whose business apparently was the physical installation of refrigeration plants. The electric tie-ups were made by Gross Electric Company. The latter company took their instructions from Saffell Air Conditioning but submitted their bid to and received their pay for the job from defendant, Wild. Levey, however, bore the cost of installation and reimbursed Wild.
At a pre-trial conference counsel agreed to the following facts:
'(1) That the allegation of paragraph I of plaintiff's complaint relating to plaintiff's corporate existence and its right to do business in Arizona are true.
'(2) That at the time defendant sold the refrigeration unit, defendant warranted by implication the refrigeration unit to be fit, qualified, and proper for use in a private home, as alleged in paragraph IV of said complaint.
'(3) That the items set forth in the complaint in paragraph V were expended by Clarence Levey, but defendant denies that the last two items, the bedroom and shower door repairs, were caused by the explosion.
'(4) That Levey carried a policy of insurance with plaintiff in which it had agreed to indemnify him against fire and explosion and had paid Levey $2,233.27 as a result of said explosion.
'(5) That in consideration of said payment Levey had assigned his claim against the defendant to it.
'It is further agreed that the only issue to be determined by the court is whether the unit itself was defective or whether the installation by parties other than the defendant was improper.
[81 Ariz. 254] 'If the unit itself is found defective, the only remaining issue is whether the damage to the bedroom and shower ...