Full opinion text
OPINION DAN M. RUSSELL, Jr., Chief Judge. Plaintiffs, husband and wife, residents of Ellisville, Mississippi, at the time their cause of action arose, brought this action under Mississippi’s “wrongful death statute”, Section 11-7-13, Mississippi Code of 1972 (formerly Section 1453, Mississippi Code of 1942) against Sears, Roebuck and Company, a New York corporation qualified to do business in Mississippi, for the death of their son, fatally burned when a Sears Coldspot freezer allegedly exploded and caught fire. Plaintiffs claim they are entitled to recover under theories of (1) strict tort liability because the freezer was defective; (2) breach of warranty, both express and implied; and (3) negligence in the design of the freezer in that its insulation consisted of polyurethane foam, a substance dangerous because of its flammability, and (4) because the freezer was negligently and improperly installed by Sears’ employees. The defendant denied all charges. The case was tried to the Court without a jury. At the conclusion of plaintiffs’ case in chief, Sears moved for a dismissal under Federal Rules of Civil Procedure, Rule 41(b), which the Court denied. At the conclusion of all the evidence, Sears again moved to dismiss, charging that plaintiffs, upon the facts and the law, had no right to relief. The Court reserved ruling on this motion pending its review of the evidence. Both plaintiffs and the defendant have furnished the Court with their respective proposed findings of fact and conclusions of law and briefs. In a pre-trial order entered into evidence, the parties agreed that certain facts were established by the pleadings, stipulations or admissions of counsel. These facts, as adopted by the Court, follow. Mark R. Howard, the infant son of the plaintiffs, was eleven months old on October 7, 1971 and in good health when he received fatal burns in the residence of Benton C. Pitts and wife, Martha Gay Pitts, Ellisville, Mississippi, where he was being cared for by Mrs. Pitts for compensation. Mark died on November 4, 1971, approximately 28 days after the fire, at the University Hospital, Jackson, Mississippi to which he was taken for treatment immediately following his burns. He had a life expectancy of 68.3 years. His parents, Ralph Howard and Kay F. Howard, plaintiffs herein, were the sole and only heirs at law of the deceased.' Medical expenses incurred in Mark’s treatment include the sum of $6,727.00 owed to University Hospital, $28.50 to Jones County Community Hospital, $505.00 to Dr. Richard C. Miller, $25.00 to a Dr. McRae, arid $96.25 to City of Laurel Ambulance Services. Funeral expenses were in the sum of $733.25. On and prior to October 7, 1971, there was situated in the residence of Mr. and Mrs. Pitts a Sears Coldspot Flash Defrost Spacemaster Chest Freezer, Serial No. 91839576, Model 1047. During this time Sears was engaged in the distribution and sale of freezers, including the one purchased by the Pittses. Sears made no reference to a manufacturer other than Sears, Roebuck and Co. on the freezer and the materials distributed therewith, and Sears marketed the freezers to the general public under its trade name of Sears Coldspot. Also by stipulation of the parties, exhibits P-1 through P-65 were entered into evidence by the plaintiff, and exhibits D-l through D-90 were admitted into evidence on behalf of defendant, both sets without objection by either party as to authenticity or admissibility. Plaintiffs’ first witness was Mrs. Martha Gay Pitts, primarily a housewife who, at home, assisted her husband in keeping books for clients other than his regular employer, and who “babysat” other persons’ children in her home for a small fee. She identified her residence on Fridge St., Ellis-ville, as reflected in photographs in evidence, showing outside views, and a floor plan of the various rooms, also in evidence. In November 1970, Mrs. Pitts and her husband went to the Sears’ retail store in Hattiesburg, Mississippi, where they purchased a Sears’ Coldspot chest freezer, the serial and model numbers being that given above. Although the freezer was a floor model and had a scratch across the front, the salesman represented it as new, and they were given a written one year warranty, free, against defects in material or workmanship, as well as other literature, all in evidence, pertaining to Sears’ household appliances. Final payment, by check, was made in January 1971. The freezer was delivered to the Pitts’ residence in the week following the purchase by a Sears’ delivery truck at a time when Mrs. Pitts was alone. She instructed the two men on the truck, both Sears’ employees, to place the freezer at the center of the south wall of the dining room where a double two-prong, twist-lock receptacle was available. Inasmuch as the power cord on the freezer had a three-prong plug, the Sears’ employees obtained from the Sears’ truck a two-prong adapter plug with a "pig-tail” ground wire affixed, which they added to the power cord and inserted in the wall receptacle. They did not ground the “pig-tail” or say anything about it to Mrs. Pitts. She had no problem with the freezer until about two weeks after its purchase when she noticed that the lid did not fit tightly and was letting cold air escape. Upon her calling the Hattiesburg Sears’ store, a repairman went to her residence and installed a new gasket around the lid. She did not watch him make the repairs but went about her household duties. She signed a repair slip. From then on until the day of the fire, the Pittses had no more trouble with the freezer. They used it solely to freeze vegetables and meats, and, on the day of the fire, Mrs. Pitts estimated that the freezer was half-full. Beginning with the school year in September 1970, Mrs. Pitts had regularly assumed the day-time care of Mark Howard, the eleven month old child of plaintiffs, both parents being teachers in the Ellisville schools. On school days, Mrs. Howard would leave Mark with Mrs. Pitts at about 7:30 a.m. and pick him up after school in the afternoons. Mrs. Pitts would feed the child breakfast and lunch and keep him comfortably dressed. In return she was compensated the sum of $2.50 per day. On the morning of October 7, 1971, Mrs. Pitts had fed Mark and dressed him. Some ten or fifteen minutes before 11:00 a.m., Mrs. Pitts finished her preparations for lunch, left the kitchen, south of the dining room, and proceeded through the dining room and living room to a bedroom on the front of the house adjacent to the living room where she sat posting checks in connection with her husband’s bookkeeping. Her own son, Michael, then twenty-two months old, and Mark were playing in the kitchen-dining room area. Mark, who was not old enough to walk unassisted, was in a stroller, following the older child as they would move back and forth. At approximately 11:00 a.m., Mrs. Pitts heard an explosion “like a cherry bomb” from the vicinity of the dining room that shook the house. She ran from the bedroom to the living room where she ordinarily would have a clear view into the kitchen. She saw Michael in the dining room running toward her and had an instantaneous glimpse of Mark just beyond the doorway between the dining room and kitchen, about three feet from the kitchen space heater, when a blast of yellow flame from the bottom of the freezer swept upwards, across the back of the freezer and across the doorway to the kitchen blocking her view into the kitchen and preventing her getting to Mark. Before the sheet of flame blocked her view she had seen no fire in the kitchen. She picked up her child and ran out the front of the house around to the back kitchen door to get to Mark. She was prevented from entering by fire and thick black smoke. She noted that most of the flame was coming from the east wall of the kitchen over the space heater. She ran back to the front of the house just as her next door neighbor to the west, Mrs. Linda Graham, arrived. Mrs. Graham, a friend as well as next door neighbor to Mrs. Pitts, testified that she heard the explosion and a scream. She recognized a second scream as that of Mrs. Pitts. Mrs. Graham looked out the east window of her bedroom and saw smoke pouring out of the Pitts’ dining room. She called the Ellisville Fire Department and ran out her back door to the front of Mrs. Pitts’ home where Mrs. Pitts was again trying to enter. After ascertaining that Mark Howard was the only child in the house, Mrs. Graham tried to enter from the front but said there was so much fire and smoke in the dining room around the walls and freezer she could not get through to the kitchen. She then ran to the back and could not at first enter because of fire and smoke in the kitchen. She heard a whimper, got flat on the floor to crawl in, but still could not get to Mark. She got a hoe from under the back porch and on her stomach was able to hook the hoe to the stroller and pull it and Mark with her as she slid backwards out of the kitchen. She did not believe she could have gotten by the space heater had it been on fire, and she was not burned. The child was unrecognizable from its burns. She sent someone for a blanket and to call an ambulance. By this time people were gathering around the Pitts’ home, among them a licensed practical nurse who assisted Mrs. Graham in looking after the baby. In a few minutes, when an ambulance had not arrived, another bystander offered her car which Mrs. Graham and the nurse used to take Mark to an Ellisville doctor. There the baby was packed in ice and taken by ambulance to the Jones County Community Hospital, Laurel, Mississippi, and from there to the University Hospital, Jackson, arriving within three hours of the time it was burned and where the child died 28 days later. In her testimony, Mrs. Pitts, on the floor plan in evidence, showed that the house faced north. She identified the various rooms, indicating the location of the freezer approximately four inches out from the south wall of the dining room, located five space heaters in the home, including the one at the east wall of the kitchen near the back door, none being in the dining room, and marked the places where she first saw both children following the explosion. This sketch also shows the location of a hot water heater in a bedroom east of the kitchen. Going north from the space heater, there is a door opening into this bedroom from the kitchen immediately south of the hot water heater in the northwest corner of the bedroom, both the door and the hot water heater being nearer to the door to the dining room than the space heater in the kitchen. The only furnishings in the dining room were a baby bed against the north wall, a dinette table in the center of the room, and six chairs, four around the table, and one on each side of the freezer. The power cord extended easterly from the lower right rear of the freezer along the back of the freezer near the baseboard of the south wall to the double twist lock receptacle in the south wall, some eighteen inches to two feet above the baseboard. Mrs. Pitts occasionally ironed in the dining room near the entrance to the kitchen and used the lower receptacle for her ironing cord. She was not ironing on the day théfreezer burned. As to it, Mrs. Pitts said neither she nor her husband had ever activated the defrost system, which was not automatic, had not had any trouble with the freezer since the lid gasket had been replaced by Sears’ employees two weeks after their purchase, and that there had been no other repairs on the freezer. She said she had not laid clothes or anything else on the top of the freezer nor had it been misused in any way. On the morning of the fire, Mrs. Pitts said the weather was pleasant. Both the living room front door and the back door to the kitchen were open. None of the space heaters had been lit since the winter before. The knobs or handles to the various space heaters had been removed as a precaution against children playing with them, and these knobs were customarily kept in a kitchen cabinet out of the reach of the children, and were that morning. Her stove was operated by electricity, the space heater being the only gas appliance in the kitchen. Mrs. Pitts identified numerous photographs, in evidence, showing the charred and burned area behind the freezer with fire and smoke damage on the floor, baseboard, and wall with flame patterns swirling toward the kitchen, the metal back of the freezer itself which had obviously been exposed to tremendous heat, and the power cord burned completely through, laying at the foot of the baseboard. She acknowledged that there was a similar burn and charring behind and above the kitchen space heater as reflected in other photographs in evidence. After the removal of Mark to the hospital and the arrival of the fire trucks, Mrs. Pitts, in shock, went to Mrs. Graham’s home. She did not return to her own home until late that evening, after a second fire had broken out and had been extinguished. Some weeks or months after the fire, Mrs. Pitts and an insurance adjuster went through the home which had not been repaired. She acknowledged that she signed a loss notice and claim report, in evidence, but denied that she attributed the fire and smoke to the explosion of the gas space heater, as appears on the notice but not in her handwriting. She knew the fire had started at the freezer as that was where the explosion occurred and where she first saw fire before the fire entered the kitchen. Because a fireman had said the fire started at the space heater, Mrs. Pitts had requested the gas company within a few days of the fire, to check for leaking gas, and no leak was discovered. After returning from taking Mark to Ellisville, Mrs. Graham said that she and another neighbor, Mr. Aubie G. Richards, examined the Pitts’ home closely. Smoke damage was throughout the, house, with fire damage being confined to the dining room and kitchen. Mrs. Graham said the metal back of the freezer was distended, “blown out like a balloon”, with the wall from the baseboard to the ceiling black and charred. Glass from a window to the west of the freezer was broken and shattered on the floor. East of the freezer, the door casing leading into the kitchen was burned, top and bottom, and the floor tile from the freezer into the kitchen was burned. The only damage she noted in the kitchen was above the space heater. That same afternoon around 2:00 p.m., Mrs. Graham noticed smoke coming out of the Pitts’ attic from a vent at the front. She again called the fire department and-went to the residence herself. This time the fire was in the ceiling over the dining room with no flame visible until the firemen chopped a hole in the ceiling. The fire was rapidly extinguished. Mrs. Graham acknowledged that the Pittses have not lived in the home since. Plaintiffs’ third witness was Aubie G. Richards who lived on a hill one block east of the Pitts residence. On the day of the fire, around 11:00 a.m., Richards heard a noise like a backfire and heard women screaming from the direction of the Pittses. He went to the scene, and, knowing that Mrs. Pitts often kept children, tried to find out if any more children were in the home. He said Mrs. Pitts way lying in the yard, the burned baby on the back porch with two women looking after it, and he was unable to get a coherent answer. He entered the home from the back and proceeded through to the front. He found no other children. The house was full of smoke, but he saw little fire. He nonetheless took a water hose to douse the fire around the doorway between the dining room and kitchen and by the freezer. He could not remain inside for long at a time because of the density of the smoke. While he was so occupied, a fire truck arrived and someone took the baby to the hospital. Richards was aware of the location of the kitchen space heater, but did not note whether it was burning. He smelled no gas. He, too, identified photographs in evidence showing fire damage in the dining room in the area of the freezer and doorway. He did not remember spraying water on the kitchen wall behind the space heater and said, had it been flaming at the time he entered looking for children, neither he nor anyone else would have been able to enter by way of the back door which was adjacent to the heater. Around 2:00 p.m., Richards, too, saw smoke coming out of the attic of the Pitts’ house. Using a ladder at the back porch, he accompanied a fireman, “Sonny” Patterson, into the attic to assist in putting the fire out. Leslie Busby, by trade in the heating and air conditioning business since World War II, was the builder and owner of the Pitts’ residence and sold it to the Pittses in 1968. Within a few days of the fire he was asked by Mr. Pitts and Pitts’ father to check the damaged freezer and to check for gas leaks in the gas pipes to see if Busby could determine the source of the fire. Busby, in the company of both Pittses, looked at the freezer, and said it looked like it had “blowed out”. The metal was not fractured or torn but bulged. He did nothing to or with it. He checked the space heater in the kitchen with the flame of a cigarette lighter and determined there were no leaks in it or its connections. With the knob or handle furnished him by the younger Pitts, Busby turned on the gas to the space heater. It lit and burned with a blue flame. Busby went under the house and, with his companions squatting down watching him, he, again with a lit cigarette lighter, checked all gas lines and every connection. He found no leaks. He recommended that Pitts get a man from Laurel by. the name of Long, who was familiar with freezers, to examine the freezer. Busby saw the evidence of the fire behind the freezer and where fire had traveled from the freezer along the floor to the door into the kitchen and behind the space heater. Busby identified the space heater in the kitchen as one he had installed. It was well away from the wall and had a shield on it which Busby had installed. He said there was no way to turn the gas flame high enough for the wall and floor beneath to char as they did, particularly with the shield which would have deflected heat out and away from the wall. Plaintiffs’ next witness was William Jack Hays, Jr., an employee of Entex in Laurel. After the fire, he received a work order for a shut-in gas check of the Pitts’ home. He responded to the call, and Mrs. Pitts confirmed that she had requested the check of the Pitts’ home. First, Hays examined all the heaters in the house, then shut off all gas lines leading into the house, and turned off the pilot light to a hot water heater located in the northwest corner of the southernmost bedroom adjoining the kitchen on the east. He stated that every gas meter has a test hand which indicates gas is being used. With all the gas turned off in and about the house, he watched the test hand for 20 minutes, a standard test, and it did not move, indicating that there was no leak in the gas system or in any of the heaters. With a gas regulator, he had determined that there were four ounces of pressure in the lines at the time he watched the test hand. His inspection report, in evidence, reflects that he ran these tests on October 21, 1971, two weeks after the fire. He did not recall seeing the shield behind the kitchen space heater, but in his opinion the flame could not be turned high enough to have caused the charring that he saw behind the heater. Benton Pitts, husband of Martha Gay Pitts, confirmed that they had bought the house from Lester Busby in 1969 with all five space heaters hooked to natural gas lines. They had had no problems with any part of the gas system or space heaters. He, like his wife, said they kept the knobs or handles to the space heaters in a kitchen cabinet where they were not accessible to children. Together they bought the freezer from the Hattiesburg store after it had been represented to them as new, the salesman knocking $20.00 off the full price because of a scratch across the front. Pitts was not home when the freezer was delivered and installed; nor was he at home when a Sears’ repairman replaced the lid gasket and a small red light that was supposed to burn all the time but had become loosened. No other repairs or maintenance was had while the freezer was in their possession. He was at work as an accountant for Sanderson Farms when his mother called him about the fire. He immediately drove the five miles to his home. He briefly looked at the damage in the house before going next door to Mrs. Graham’s home to check on his wife. From there he drove to the hospital in Laurel where he remained with the Howards until Mark was placed in an ambulance for transport to University Hospital in Jackson. On plaintiffs’ photographs in evidence, he noted where fire had been around and back of the freezer with a burn pattern on the floor leading into the kitchen. The back of the freezer was bulged and the power cord, burned completely through, was laying by the baseboard. He identified photographs of the burned two pieces of cord and the adapter which had been placed on the plug end by Sears. He said that the tile covering on the dining room and kitchen floors was the same pattern with the floor level through the doorway to the kitchen. In defendant’s photographs in evidence he identified the burned and charred areas in front of the kitchen space heater and the wall behind as representative of what he saw after the fire. He also said that the knob was not on the space heater at the time of the fire. Although it appeared to him that the fire had started behind the freezer and led into the kitchen, he did not know the initial source of the fire. He gave this as his reason for calling Busby, who had sold him the house, to check the freezer and the gas lines. Mrs. Pitts also had called Entex for the gas check, and on Busby's recommendation, Pitts called William A. Long of Ellis-ville, experienced in heating and air conditioning, to check the freezer. Under cross-examination, Pitts said he did not call Sears as he would have expected Sears to pick up the freezer and he would never have seen it again. Within a few weeks after the fire, he turned his fire loss claim over to plaintiffs’ attorney. He did not know why the Howards’ suit was not filed until three years after the fire, nor did he know why the photographs taken on behalf of the plaintiffs were primarily of the dining room, the freezer, and its various parts, and not of the kitchen. On the day of the fire and, after Pitts returned to Ellisville from seeing the Howards, he was at his father’s home when he was called that his house was afire again, this time in the attic. He went to his home and saw smoke coming out of the attic. He identified from a photograph the hole in the dining room ceiling near the kitchen which was chopped by the firemen during.the second fire, not the first. Also he removed the frozen meat and vegetables from the freezer which he said had not thawed. Pitts affirmed his wife in saying they did not return to live in this house after the fire. It remained unrepaired at the time he sold it in March 1972. Neither Pitts, his wife, Busby, nor anyone else who testified, knew what had became of the space heater. Pitts said he sold it with the house. William A. Long, in the heating and air conditioning business since 1968, got a service call during October 1971 to inspect the freezer in the Benton Pitts’ home. He had never before been in the home and expected a repair job of some sort. He could tell that the freezer had obviously been in a fire and was not operational because of the burned cord. He visually examined inside the freezer around the motor and found a pressure of 58 psi (pounds per square inch) equal on the low and high side of the compressor which he said was normal. In order to make this test, he had to remove two service ports which customarily are not on a freezer which has come straight from the factory, the ports indicating that the lines had been previously serviced. He also found a slight freon leak. During the testimony of these witnesses, various experts, both for the plaintiffs and the defendant, were allowed to remain in the courtroom. The first witness offered by plaintiffs as an expert was Dr. C. T. Carley, Jr., a full professor and head of the Mechanical Engineering Department of Mississippi State University, Starkville, Mississippi. The Court accepted Dr. Carley’s qualifications as an expert in the field, of mechanical engineering with knowledge of refrigeration systems and the use of various kinds of insulation including polyurethane. However, by his own admission, his experience in the design and manufacture and use of insulation in freezers of the type here involved was limited. Dr. Carley first saw the Pitts’ freezer on September 30, 1974 after receiving a call from plaintiffs’ attorney. He and a mechanic on his staff, Thomas Didlake, went to the Pitts’ home in Ellisville. The freezer was scorched and burned on the back as reflected in plaintiffs’ photographs. The power cord was burned in two parts, laying on the floor behind the freezer. A filler plug, used at the factory to inject the liquid polyurethane into the freezer as insulation between the inner metal cabinet and the outer metal casing, located on the right rear bottom of the freezer, was deflected downward, its left end still attached to the parent metal. A similar plug, under the front of the freezer, remained flush with the metal. After visually examining the freezer, Dr. Carley observed the fire damage to the house and the electrical system, which included a simple type breaker box. He noted the two-prong adapter and grounding wire on the end of the power cord to the freezer. At his request the freezer, along with the power cord pieces, was removed from the Pitts’ home in Ellisville to Did-lake’s garage in Starkville in order that they could examine them more closely. This examination took place in June 1975. They noted that the burn on the bottom of the freezer outside casing was similar to and led to that on the rear of the outer casing. Dr. Carley suspected that the insulation between the two metal cases had burned causing a blow-out. By cutting through the rear outer casing, Dr. Carley was able to note the blackened and charred insulation extending from the bottom rear of the freezer upwards in contrast to the white solidified foam insulation next to the inner casing and outside the burned area. The inner wires of the defrost system and condenser coils that were visible were badly corroded. He noted that the two pieces of the burned power cord matched, and that the three-strand copper wire exposed at one end where the insulation was burned off had beaded, indicating a hot fire. He suspected a short circuit from the evidence of copper in the burn area of the outside rear panel near the bottom where blisters were evident in the metal. He sent scrapings from this area to the chemical laboratory at the University. However, the subsequent report was that the traces of copper were insignificant. He noted that the defrost system could be activated by pulling a knob visible in the raised lid of the freezer. He removed the inner liner of the lid in order to inspect the defrost system. It consisted of a switch hooked to two thin wires that encircled the inner box several times, portions of which were visible when he removed the back of the outer liner, but most of which was not visible. At some time in his inspection and handling of the freezer, Dr. Carley inadvertently broke a part of the defrost wire that was visible and said that he soldered it together. As to the defrost switch, he noted that it was held together by a rubber band. When the band was removed, the switch fell apart. After putting the switch back together and replacing the rubber band, Dr. Carley attempted to energize the defrost system by pulling the defrost knob. He got a slight initial heating of 15 seconds, then nothing. He called in an electrician, Conger Hall Jones, to check the electrical continuity of the switch and defrost system who tested same by attaching an ohmmeter to one end of the defrost wiring, then to the other end. From the ohmmeter readings, which he saw himself, Dr. Carley determined there was a short circuit in the defroster wiring in an area not exposed to view even after removing the back outer casing. As to the polyurethane insulation, Dr. Carley undertook to test its flammability by inserting unburned portions, which he removed from the freezer, into a 3" pipe. He inserted another pipe and applied flame. When heat of 200 to 300° Farenheit was reached, the polyurethane began to vaporize. There was no flame at that temperature. When the heat was increased to 400 to 500° Farenheit, ignition did occur but the flame died down within seconds. At the suggestion of Mr. Clayton Schneider, another expert witness for plaintiffs, Dr. Carley placed a sample of the polyurethane in an oblong pan to while he clamped a cover. He placed a small hole in the bottom. He exposed a propane torch with over 780° Farenheit to the bottom and obtained vapor; then a yellow flame shot out of the bottom hole and continued to burn for several minutes, charring a piece of wood approximately three to four inches from the bottom of the pan, the same distance the freezer was out of from the baseboard and wall in the Pitts’ dining room. This test is reflected in plaintiffs’ exhibit No. 73, a photograph taken by Dr. Carley himself. Although he obtained a flame at 780° Farenheit, he noted that the flame behind the freezer obviously reached as high as 1900° Farenheit, the degree necessary to cause the beading of the copper wires in a burned end of the power cord which would have been in the vicinity of the filler plug. In addition to the erratic and damaged defrost switch which he said may have caused an electrical short, Dr. Carley, on the basis of the ohmmeter test on the defrost circuitry which reflected a short, said that the short could have occurred in the defrost wiring imbedded in the polyurethane insulation in the vicinity of the bottom and back of the outer casing, with sufficient heat to initiate the degradation or pyrolyzation of the polyurethane, and, when this matter vaporized, it built up sufficient pressure in the freezer until it exploded out the point of least resistance, that is, the filler plug, and ignited in a yellow flash fire, as described by Mrs. Pitts, spewing flame downward out of the filler hole, some toward the window that was broken, up the wall behind the freezer and around westerly toward the door into the kitchen, and some westerly along the baseboard into the kitchen, all as reflected in the flame pattern evident in plaintiffs’ photographs, in evidence. Alternatively, Dr. Carley was of the opinion that the power cord in back of the freezer arced against the outer casing in the vicinity of the filler plug, building up sufficient heat to vaporize the polyurethane which ejected from the filler hole at a high enough heat to self-ignite causing the same flame pattern as though the polyurethane was caused to pyrolyze and ignite from a defroster wire short within the casing. In speaking of a short in the defroster wire as opposed to an arc in the power cord, Dr. Carley explained that the defroster wire did not necessarily have to break, but only had to come in contact with some other substance so that the electrical current would take a route other than that intended. He felt that the short, wherever it occurred inside the freezer, dissipated heat to the back of the box near the filler plug and in the same vicinity as where the power cord burned in two pieces outside the freezer. In September 1974 when Dr. Carley visited the Pitts’ house, his attention was not called to the charring of the kitchen wall behind the natural gas space heater and floor beneath. The record does not reflect whether repairs had been begun in the kitchen at that time. Be that as it may, after he was shown photographs entered into evidence on behalf of the defendant reflecting as much as and the same type of charring in and around the space heater in the kitchen as shown in plaintiffs’ photographs of the wall and floor in the dining room behind the freezer, it was his opinion that the fire in the kitchen and the fire in the dining room occurred at practically the same time, and the polyurethane vapors exiting the filler vent, if not hot enough to ignite, drifted through the kitchen door into the bedroom on the left where the pilot light on the hot water heater furnished the ignition, the flame traveling back to the freezer with sufficient heat present to burn the power cord through and to cause the burning and charring behind the freezer. He explained that polyurethane, when ignited, casts a yellow flame with a lot of soot, the latter having been mentioned by the witnesses who saw the fire, as well as being reflected in the photographs. On the other hand, had natural gas escaped from the space heater in the kitchen and drifted into the dining room behind the freezer, and had there been exposed to a source of ignition, he felt that the gas would have “whooshed" back to its source, would have been a clean burn, insufficient to have caused the charring to the polyurethane and wall and leave the amount of soot behind the freezer, which polyurethane produces on burning and which is evident in plaintiffs' photographs. Returning to a short in the defrost wiring Dr. Carley said that it obviously did not occur next to the inner lining inasmuch as Mr. Pitts was able to save the frozen foods in the freezer, but, if such a short occurred, it was where the polyurethane had charred all the way through, that is, near the filler hole. At the same time he acknowledged that if there were no short in the defrost wiring, the eventual heat produced at the freezer had to be high enough to bead the copper wires in the power cord, such heat having to come from a spark or arc in the power cord outside the freezer or from some other source. Summarizing his testimony, he felt that polyurethane, being highly combustible, was a dangerous product to be used as freezer insulation, although he conceded that all appliance manufacturers were continuing to use it without the addition of flame retardants. He could not determine whether the polyurethane pyrolyzed from a source inside or outside the freezer,, but stated that the fire behind the freezer had all the characteristics, that is, yellow flame and soot, of a polyurethane fire. For this to happen, obviously there had to be a source of ignition which he felt came from either the broken defroster switch or a short circuit in the electrical system. He thought it probable that the combustible polyurethane vapor drifted from the dining room into the kitchen and through a bedroom door and ignited from the hot water heater pilot light, even though there was no visible fire damage to the water heater or carpet underneath. He discredited the theory that natural gas escaped from the space heater in the kitchen, which would have to drift by the hot water heater first and then drift further to the back of the freezer to be ignited by the freezer relay inasmuch as the relay was enclosed. If natural gas so escaped, and was ignited by a short in the freezer, he felt that the burning gas would have “whooshed” back to its source, leaving no residue, and could not have caused the obvious charring of the wall behind the freezer, and smoke and soot which Mrs. Pitts said was everywhere. Dr. Carley did not know who put a rubber band around the defrost switch to hold it together, nor did he know who had serviced the freezer as evidenced by the addition of the service parts, but he assumed that it was Sears inasmuch as the Pittses testified that only Sears employees had serviced the freezer while it was in their possession. Conger Hall Jones, an electrical engineer on Dr. Carley’s staff, was asked by Dr. Carley to run a continuity test on the freezer. He prepared his own diagram of the circuitry and compared it with one of the freezer which had been furnished him. He found no inconsistencies between the two. To test the circuitry, he used a Simpson Volt-ohmmeter which measures voltage, resistance and current. Under Dr. Carley’s supervision, he first ran a test on two burned out leads in the defrost system and found only 26 ohms resistance in the whole coil. He then tested from a coil to the outside metal casing and got a reading of 8000 ohms resistance, indicating a short between the wiring and casing. He also examined the defrost micro-switch held together by a rubber band and said when the rubber band was taken off, the switch fell apart. When he and Dr. Carley put it back and inserted it in place in the freezer lid, Jones said it fit in tightly, and, when in place, was “all right”. Clayton J. Schneider, Jr., East Aurora, New York, also testified on behalf of plaintiffs as an expert in pyrotechnics. Schneider holds a Bachelor’s Degree in chemical engineering from Renessler Polytechnic Institute. He has had a number of years experience with private industry in the development of industrial materials including polymer derivatives, and, as a bench chemist, had formulated polyurethane foam. He has studied the combination of solids, liquids and vapors, and their characteristics for combustion. He has studied and written on safety practices in the polymer industry. For the last sixteen years, his field has been in the area of pyrotechnics, having performed research for the military and lectured on incendiaries. He is currently on the staff of Cal-Span Corporation connected with Cornell Aeronautical, Inc. He also consults privately and has made numerous federal and state court appearances in regard to house and appliance fires and arson. In connection with the Pitts’ freezer, he was first furnished an electrical diagram of it in the spring of 1975, as well as plaintiffs’ photographs of the freezer, and a sketch and photographs of the Pitts’ home reflecting fire damage. He visited the home in May 1975 at a time when it was being refurbished but could see the residual traces of fire on the south wall of the dining room through to the kitchen and behind the kitchen space heater. He noted the hole in the dining room ceiling but saw no damage under the house. He saw the damaged freezer the same day in Starkville, in the company of Dr. Carley and Didlake. It was laying on its front with heavily damaged and deeply charred polyurethane visible at the bottom and rear of the box and where the back of the metal casing had been peeled back by Dr. Carley and Didlake. He noted that samples had been removed. He explained that polyurethane is a closed cell, foam, liquid when injected by a mixture gun into the cavity between the two liners of the freezer, where it then hardens. He said that if low heat is applied, it assumes liquid state, but, undamaged foam, if ignited, burns rapidly, emitting brown or dirty smoke, leaving little ash. If containerized, as in a freezer, and heat is applied, the atomic structure breaks down, forms vapors and combustible gases, and, if high heat is applied, the change is rapid, the vapors and gases taking the path of least resistance to escape outward. On this freezer he said the material in front was as originally injected, but that in the back and rear the matter had changed in appearance from the application of heat. He found evidence of increased pressure in that the back filler plug had been blown outward. Following the heating in this freezer, he said the vapor built up in the contained areas, and the weakest portion gave way at the filler plug. He added that, if the vapor is released fast, an explosive noise would follow as it did in this freezer. Of the 13 pounds of rigid polyurethane in the freezer, he estimated that two or three pounds degraded. The release was rapid as indicated by the open filler plug, the witnesses who heard the explosion, and the charred condition of the wall behind the freezer. He estimated 25 to 30 cubic feet of pressurized vapor was released, and, if the combustible vapors were ignited, there would have been a blast of yellow flame. In response to the question had he found a source of ignition, his reply was in the affirmative — a highly probable source from.an arc in the power cord to the outer metal skin of the freezer. Schneider confirmed that he recommended to Dr. Carley that a higher heat than Dr. Carley had first used be applied to the polyurethane which should be put in an enclosed container to more nearly approximate the freezer itself. In one of these tests performed in Schneider’s presence, the enclosed pan was heated to 1000° Farenheit, sufficient to cause incandescence in the metal pan and more than enough to ignite the polyurethane. Schneider examined the two pieces of the power cord, saw that they matched, and said they evidenced an explosion at a high temperature, at least 1900° Farenheit, at which copper wires in the power cord melted and beaded. According to him this could have been caused only by intense heating at the back of the freezer, which degraded the polyurethane into vapors which built up sufficient pressure to break through the filler plug. The vapors were ignited while traveling up the back of the freezer, further degrading the polyurethane, resulting in a yellow flame. The initial heat as well as ignition was from an arc in the power cord outside the freezer to the metal casing, at or near the filler hole and where the cord was burned in two pieces. As a chemical engineer who had basic courses in electricity, he felt he knew the principles of arcing, and said whether the arc was the from the copper wire to metal skin or wire to wire touching the metal skin, either could generate enough heat to cause pyrolyzation. The resulting vapor created sufficient pressure to bulge out the back metal skin and blow out the filler plug, releasing vapor to expand to atmospheric pressure. The vapor ignited from the arc, or was hot enough to self-ignite, with burning gases rising above the top of the freezer and burning up the dining room wall as reflected in plaintiffs’ photographs, particularly Nos. P-33, 34 and 35 which were taken shortly after the fire. At the time of these tests, Schneider did not know about the fire in the kitchen behind the space heater, nor was it evident in plaintiffs’ photographs, his comment being that the kitchen fire was under-documented. He nevertheless felt from plaintiffs’ photographs that the incident was within his expertise. Accordingly, he went to the Pitts’ residence and examined for all traces of fire, as noted above, finding traces of soot, and, from the new flooring and new walls, could tell these areas were damaged, in the kitchen as well as in the dining room. He then went to Starkville to examine the freezer as related above. During the trial at which he saw defendant’s photographs of the damage in the kitchen and videotapes of tests run by Whirlpool, including those on undamaged freezers, he found them interesting enough to double check his conclusions and found no reason to change them. He carefully examined the two pieces of the insulated power cord, in evidence as well as shown in defendant’s photographs, and concluded there had to be a break through the insulation, even though that part burned, to represent the potential source of energy, saying there was nothing else to furnish the heat that the back of the freezer was exposed to. He found evidences of an arc from the power cord in the different colors in the burn on the back of the freezer. When asked why this arc did not break the 15 amp breaker in the fuse box, his reply was that a 15 amp breaker would allow enough voltage to let 1500 watts of current pass, sufficient to initiate pyrolyzation. Before the breaker would enter the picture, he felt enough heat would have been generated in seconds to begin degradation of the polyurethane insulation. The vapors which emitted by way of the filler plug then hit the power cord arc and ignited, or were hot enough to self-ignite, a process taking from a few seconds to no more than a minute. In his opinion, the vapors bursting out the filler plug would have resulted in an explosive noise, like a bang, and the burning of the vapor would result in a fast hissing sound. Simply put, Schneider said, had there been no arc against the outer casing, there would have been no explosion and fire. In his opinion, the fact that the pigtail wire on the two-prong adapter had not been grounded made no difference. On plaintiffs’ exhibits Nos. 34 and 35, Schneider pointed out the flame was thrust downward and toward the west windows from the angle of the partially blown-out filler plug, then upward toward the ceiling, and along the ceiling and the baseboard toward the kitchen. He denied that the white area above the freezer shown on plaintiffs’ exhibit No. 35 was a camera distortion saying that this white part was a part of the flame pattern that went over the entire wall. The Court notes that this same pattern is depicted-in plaintiffs’ exhibits, Nos. 17, 32, 33, 34 and 45, Nos. 17, 35 and 45, incidentally, showing the location of the space heater through the doorway into the kitchen. By means of a mathematical formula used in the field of chemistry, Schneider concluded that the vaporous gas produced in the pyrolyzation of the polyurethane foam produced a flame covering an area of 50 to 90 cubic feet, saying that vaporization and ignition occurred over a period of minutes, reaching a point when vaporization lessened, ignition failed, and the fire burnt itself out. The Court notes that when the neighbor, Richards, reached the scene, the fire had died down except where the charred wooden wall and door facing still had some flame. Summarizing Schneider’s testimony, he heard Dr. Carley testify and agreed with him as to the combustibility of polyurethane vapors. They disagreed as to the initial source of heat to cause pyrolyzation, Dr. Carley believing a “hot spot” developed inside the freezer, and Schneider concluding that the source of heat started from a damaged power cord; nevertheless both agreed that polyurethane foam was directly responsible for the fire. Schneider offered no explanation as to how the power cord became damaged sufficiently to arc or spark. Plaintiffs’ next expert was Mr. Joseph E. Leininger, a graduate of Tulane University, New Orleans, Louisiana, with a degree in mechanical and electrical, engineering. He professed years of experience in the design and sales of heating and ventilating systems for private industry; he also served as an engineer and facilities officer with the U. S. Navy, and is presently a consultant in mechanical and electrical engineering involving heating, air conditioning, plumbing, all mechanical systems, and in fire prevention and protection. He has, over a period of fourteen years, been involved in the investigation of fires for insurance companies and adjusters. He, too, has testified as an expert witness in litigation. After first talking with plaintiffs’ attorney in February 1975, Leininger went to Ellisville to examine the scene of the fire. The freezer had been removed to Starkville, and although the Pitts’ residence wr= in the process of renovation, he could still see traces of where the fire had been. He inspected the house electrical system including the distribution panel and the breaker box. He inspected where the space heater had been in • the kitchen, the hot water heater in a bedroom leading into the kitchen, and the attic. In the attic, he removed some insulation so he could see the pattern of where electrical wires lay. While there he inspected the hot water vent, found the flue clean inside, and determined that it had not been exposed to great heat. He also inspected a simple pole circuit breaker and socket meter outside the residence where power had been cut off. He inspected the double receptacle in the dining room wall. Although sooty on the outside, the inside revealed no burn. At a later date, November 21,1975, Leininger met with Dr. Carley to examine the freezer. The back outside casing had been removed, enabling Leininger to see inside and inspect the defrost system. He determined that the polyurethane insulation had been exposed to heat sufficient to cause pyrolysis. He also found the defrost wiring damaged, in that a piece was missing near the top of the freezer but in the damaged area. He tested the continuity of the electrical circuitry and found an open circuit in the defrost wiring. Referring to his examination of the Pitts’ attic which showed no burning on the top of the attic fiber glass insulation and a little burning underneath, with slight damage to an electric cable underneath the fiber glass, and with no damage to the hot water heater flue, Leininger determined there was no source of fire in the attic. From his examination of the Pitts’ home, the traces of soot in the dining room and kitchen, his inspection of the freezer, and his inspection of both plaintiffs’ and defendant’s photographs, he stated that it was obvious that the fire started in the freezer. In his opinion, the broken defrost wire inside the freezer supplied the initial heat for pyrolyzation to begin, with the source of ignition of the combustible portion of these vapors coming from an arc in the power cord laying along the back of the freezer. He saw the two pieces of the power or extension cord, noted the copper beading which occurs when the wire is exposed to heat of 1900° Farenheit, more than sufficient to ignite the combustible vapors generated during pyrolyzation. He stated that polyurethane, not exposed to oxygen, will not burn, but once sufficient heat, 600° to 800° Farenheit, or up to 250° Celsius, is applied, polyurethane will pyrolyze, about 30 percent turning into vapors, half of which is flammable. He again said that the initial pyrolyzation of the polyurethane caused release of the vapors through the perforated filler plug, which when exposed to oxygen in the air, were ignited from the arc in the damaged power cord, causing an explosive noise and fire. When told that the broken defrost wire he had seen in the freezer was accidently broken by Dr. Carley and repaired by Dr. Carley, Leininger was still of the opinion that defective defrost wiring created a hot spot that gradually built up a temperature sufficient to cause pyrolyzation. He felt that the defrost wire, of low resistance, could have kinked, stretched or broken from the vibration of the compressor, causing electricity to go where it should not have. He estimated that it could have taken fifteen minutes to a half an hour or longer for the hot spot to generate heat up to 500° Farenheit for pyrolyzation to begin. He explained that from the circuitry diagram of this freezer, electricity normally enters by way of the power cord from the wall receptacle and goes either to the defrost system and back to the power cord, or to the compressor for cooling and back to the cord. When one system is energized, the other is not, if the system is working as it should. The defrost wires are designed to distribute heat evenly. However, if the defroster switch, which behaved erratically when Dr. Carley examined it, activated the defrost system, current should have flowed evenly. In Leininger’s opinion, it did not, but built up at a hot spot. After Dr. Carley put the switch back together again and inserted it in place with a tight fit, both systems worked as demonstrated in the courtroom. Leininger pointed out, however, that this test was not run long enough to observe whether heat built up at a hot spot. When informed that a bi-metal thermostat in the defrost wiring system was designed to break the current at over 95° Farenheit, Leininger pointed out that this thermostat, in the upper portion of the freezer, had insulation between it and the hot spot in the lower part of the freezer and thus would not be affected by heat at the hot spot. Although Leininger had not seen the space heater inasmuch as it had been removed from the kitchen when he inspected the residence, he had indicated in his deposition that the flame pattern in front and behind the heater, as reflected in defendant’s photographs, came from the heater. When he learned during the trial that this heater had a shield behind it, he testified that he then doubted that the burn came from the heater. He further felt that if the space heater had been turned on, the natural gas would have first diffused into the bedroom where the hot water heater pilot light was on, yet he found no burn in the bedroom. In summarizing Leininger’s testimony, he concluded that the erratic switch had activated the defrost wiring system in which a hot spot developed some fifteen to eighteen inches from the filler plug. When pyrolyzation began, vapors and gas built up enough pressure to explode out the filler plug. He admitted that the pyrolyzation would have had to go fifteen inches to the right and five inches downward before the heated vapors could damage the extension or power cord. He contended that the pyrolyzation process continued for some time before ignition was supplied by an arc or short in the extension cord. Testifying last on behalf of themselves were Mr. and Mrs. Howard. Neither was present during the events leading up to the fire and during it. Necessarily their testimony was limited to the fact that Mark was their only child and son, a happy baby in good health. Mrs. Howard was not allowed to see her son from the time of his injuries until two weeks after his admission at University Hospital, and then for only five minutes during every hour. Although he could not move much, she said Mark was responsive to her and her husband. She identified a color photograph of Mark made one week before he was burned. Mr. Howard was only allowed to see Mark one week after his admission to University Hospital; According to Howard, Mark’s skin was charred, his fingers burned off and his ears crusted. Even on those parts of his body where the crust had been surgically removed, the underlying flesh was blackened. Burns covered his entire body except in the diaper area. Following argument on defendant’s motion to dismiss, which the Court denied, defendant first offered the deposition of Dr. Kurt Charles Frisch of Gross lie, Michigan, taken on May 27, 1977 in Chicago, Illinois, in the presence of Mr. Schneider, one of plaintiffs’ expert witnesses. This deposition is in evidence. Dr. Frisch was unable to appear in person at the trial which began on June 15, 1977 as he was in Europe. He holds graduate degrees in organic chemistry from the Universities of Vienna and Brussels and from Columbia University. He is and has been for the last nine years a full professor of polymer engineering and a director of the Polymer Institute at the University of Detroit, Detroit, Michigan. A lengthy list of his accomplishments is attached to his deposition. As a full time professor he teaches graduate students seeking master and doctorate degrees in polymer science and polymer engineering. As director of the Polymer Institute he is responsible for research in the polymer field, funded by international and private industry as well as the United States government. He explained that polymers deal with the science or technology of large molecules such as are found in plastics, rubber, coatings, films, and fibers and include cellular plastics such as polyurethane foam, both flexible and rigid. From his detailed experience Dr. Frisch has been unquestionably instrumental in introducing the use of polyurethane foam into American private industry where its use is now prevalent as insulation in building construction and as insulation in appliances such as the freezer involved herein made by the Whirlpool Corporation of Benton Harbor, Michigan, bearing a Sears’ brand. He described the chemical make-up of polyurethane common to this type of foam as roughly sixty percent polyetherpolyols, and approximately thirty percent of crude toluene diisocynate (TDI). Remaining are two catalysts, tertiary amine which accelerates reaction, and a silicone surfactant which acts as a cell control agent, and a nonflammable blowing agent falling under the generic classification of fluorocarbons, particularly, trichlorofluoromethane. At his request a sample of the foam from the freezer involved was sent to him by Whirlpool in order for him to perform on it a test known as “Oxygen Index” which measures combustion. According to Dr. Frisch it is a standard test recognized by the American Society of Testing Materials, reproducible from one laboratory to another in which the test is carried out by increasing the amount of oxygen in an atmosphere of air, being oxygen and nitrogen, until burning starts. A value of 21 is the point at which the foam is considered as self-extinguishing. On the sample sent to Dr. Frisch the oxygen index test performed under his supervision scored 19.5 Although this score did not reach the self-extinguishing point of 21, Dr. Frisch felt it relatively high. He added that a score of 19.5 compared favorably with the oxygen index of polyurethane foam used in the freezer industry in 1969 when the Pitts’ freezer was manufactured, saying that the type and composition of the foam used in 1969 is essentially the same as currently used with no generic variations. He admitted that on an oxygen index scale to 21, a score of 19.5 indicated flammability which he said would have a relatively slow rate of burning as distinct from “highly flammable” which would be more likely in foam used in furniture, mattresses and for packaging. He acknowledged that in 1973 the Federal Trade Commission had filed suit against twenty-five companies in the plastics industry and the Society of Plastics Industry alleging the mislabeling of foams as “fire proof” or “self-extinguishing” in that industry tests did not reflect actual fire conditions, and admitted that the suit ended in a consent judgment, adding, however, that the suit was specifically brought with regard to foams used in the building and construction industry, which he did not consider the same as freezer foam. Despite the oxygen index test recognized by the Society of Testing Materials, a type of test he said was available in 1969, Dr. Frisch stated that there were no industry or government standards applicable to the use of polyurethane foam in freezers or refrigerators then and none today. As to this particular foam which he found typical of foams being used today, he did not consider it dangerous in any way in that it was enclosed in metal housing. He thought it significant that its use is increasing year to year in place of fiber glass. After examining pictures of the freezer, he conceded that the foam, such as used in this freezer, was flammable, characterizing it as slow burning. Like any other foam he said it would pyrolyze and in the pyrolysis, give off a number of degradation products, naming them as: (1) flammable gases which could burn if a source of heat was present; (2) non-combustible gases such as water vapor and carbon dioxide; (3) the formation of liquids which are partially pyrolyzed polymer; (4) char, which he felt desirable as it acts as a protective layer, preventing air or oxygen from coming into contact with combustible gases; and (5) smoke. He said the combustible gases at any given time would constitute but a few percent of the whole. From his examination of two photographs of the burned freezer, attached to his deposition, he was not surprised that “only a minor section of the total of foam was charred and seemed to have been consumed.” He ruled out the po