490 F.

2d 1015

Dean HALES et al., Appellees,

v.
GREEN COLONIAL, INC., a corporation, et al., Appellants, v.
Harold MUNROE, Third Party Appellee.
Nos. 73-1122, 73-1136 and 73-1139.

United States Court of Appeals, Eighth Circuit.

Submitted Oct. 16, 1973.
Decided Jan. 17, 1974, Rehearing and Rehearing En Banc
Denied Feb. 6, 1974.

Dan Hale, St. Joseph, Mo., for Dover.

Joseph K. Houts, St. Joseph, Mo., for Green.
James Borthwick, Kansas City, Mo., for Iowa Plumbers.
Thomas A. Sweeney, Kansas City, Mo., for Munroe.
Michael E. Waldeck, Kansas City, Mo., for appellee.
Before LAY and BRIGHT, Circuit Judges, and G. THOMAS EISELE,
District Judge.*
LAY, Circuit Judge.

This is an appeal from money damages awarded for the destruction of a

building and its contents by a fire allegedly caused by a defective heater. The
trial court submitted the cause to the jury on the theory of strict liability under
Missouri law. The jury awarded plaintiffs $102,594.00. The trial court
overruled defendants' motion for a judgment notwithstanding the verdict and
their alternate motion for a new trial. We affirm.

Plaintiffs, Dean Hales, Bernadine Hales and James Mogg, were the owners and
operators of a Ben Franklin Store in Hamilton, Missouri. In June of 1970, they
moved the location of their store to a remodeled building. To determine the

heating needs of their new store they contacted Harold Munroe, a licensed
plumber and heating installer, who along with a representative of Green
Colonial, Inc., an Iowa supplier of heating equipment, visited the premises.
Munroe determined that both a 300,000 BTU heating unit and a 150,000 BTU
heating unit were necessary to sufficiently heat the store. Munroe ordered from
Green Colonial two Peerless brand heaters, specifying that they burn LP gas
(propane) since Hamilton had no natural gas supply. Green Colonial in turn
placed the order for the two Peerless heaters with Iowa Plumbing Supply, Inc.,
a distributor in Des Moines, Iowa (IPS). Dover Corporation was the
manufacturer of Peerless heater units.
3

IPS furnished to Green Colonial one 150,000 BTU propane heater and one
300,000 BTU natural gas unit with a conversion kit so that it could be used with
propane gas. Green Colonial sent these units on to Munroe. Both of the heaters
were installed by Munroe and connected to a propane gas tank by the Solar Gas
Company of Hamilton. In October of 1970 Munroe converted the 300,000 BTU
natural gas heater by using a conversion kit sent to him from Dover.1 The
conversion kit is manufactured by a different company but Dover supplies them
to be used for converting their natural gas heaters. In making the conversion
Munroe reduced all the orifices, reduced the elbow pipe and substituted an LP
gas valve for the one used for natural gas. He likewise changed the blue tag
which was on the natural gas heater to a red tag which designated a propane
heater. The red tag along with the orifices, valve and elbow pipe constituted the
packaged conversion kit sent by Dover to Munroe. Dover did not send any
instructions with the kit. Munroe testified he had made conversions before and
was familiar with the procedure. The heaters were operated for approximately a
week at which time they were inspected by Munroe. He found the flame to be
normal.

In early November the plaintiffs began noticing strange popping and exploding
noises coming from the 300,000 BTU heater. On December 10, the gas
company representative came and adjusted the gas pressure to 11 inches of
water column, the specified setting required by Dover. According to Dover's
experts the reading was taken erroneously and was made at the wrong place.
The noises continued and on December 18, a fire caused by the larger heater
ignited the combustible contents of the store and destroyed the building.

Plaintiffs brought suit against Green Colonial, Dover and IPS. Dover sought
indemnity against Harold Munroe, the installer. Green Colonial and IPS
brought cross-claims for indemnity against Dover. The jury returned a verdict
against the three defendants. Prior to the submission of the case to the jury, the
trial court dismissed the claim against Munroe.2 The court has reserved its

ruling on the cross-claims by Green Colonial and IPS against Dover.

6

On appeal several grounds of error are raised by the defendants. We find only
two issues deserve extended consideration: (1) whether the evidence was
sufficient to submit the defendants' liability under the doctrine of strict liability;
and (2) whether damages awarded for consequential loss are proper in Missouri
under strict liability. We have reviewed the other grounds of error and find they
facially lack merit and do not warrant discussion.3

In regard to the first issue the defendants contend that (a) there has been no
showing of an unreasonably dangerous defect, (b) the product was substantially
changed from the condition in which Dover originally sold it, and (c) the
plaintiff was guilty of contributory fault.
THE DEFECTIVE HEATER

Plaintiffs' evidence that the Peerless heater, as converted, was defective rests
solely on the testimony of Alfred Benberg, a consulting engineer and architect,
registered in the State of Missouri. After examination of the Peerless unit he
opined that the heater was defective for two reasons: (1) it did not have a flame
tube which would ignite all the burners simultaneously, and (2) the air shutter
bar was designed in such a manner as to cause delayed ignition regardless of
how it was adjusted. He testified that these two defects caused the heater to
backflash thereby igniting combustible goods on display in the store.
Defendants attack this testimony as being speculative and without any scientific
or engineering certainty. They couple this attack with the fact that their expert
witnesses, also licensed engineers, suggest that the burner was operating
without sufficient gas pressure and that this in reality caused the fire. They urge
that the manual setting of the air adjustment bar by Mr. Munroe, the installer,
along with the improper pressure set by the gas company caused a delayed
ignition and the resulting fire. The defendants also offered testimony that the
particular heater in question had been certified as being safe and properly
designed by the American Gas Association, a trade organization for the natural
gas industry.

Plaintiffs' evidence as to causation causes this court, as it did the trial court, a
good deal of difficulty. Mr. Benberg's opinion that the air adjustment valve did
'not provide sufficient air adjustment to be sure that you get an even distribution
through the burners' is not amplified or explained. This theory was not
developed in any detail during either the direct or cross examinations. As the
defendants suggest Mr. Benberg's explanation is confusing to say the least.4

10

Defendants' engineer points out that LP gas requires 10% Less air for
combustion than natural gas. His testimony was that the adjustment of the air
vent cannot in any way affect the velocity of the gas but simply affects the
mixture of the air with the gas, thus determining whether there will be a rich or
lean combustion. Plaintiffs urge on appeal that the fault with the air vent lies
with the fact that the air adjustment bar is not designed to allow for individual
adjustment to any one of the 18 burners. The record shows, however, that Mr.
Benberg did not attribute the cause of the fire to the absence of individual
adjustment. His testimony points up that the triangular flanges or fingers on the
bar can be individually adjusted. Mr. Benberg's complaint is that there is not an
even distribution throughout all the burners. Without further explanation we
find Mr. Benberg's bare conclusion concerning the air bar insufficient to sustain
the verdict.

11

However, notwithstanding this shortcoming, we find it a fair inference from his

testimony that the basic heater lacked a flame tube in the back of the burners
which would provide uniform ignition from the single pilot light. This is
explained by Mr. Benberg as follows:

12

A. The effect of not having a flame tube or a carryover tube is that the flame
must jump from one burner to the other, two inches, as a matter of fact.
Whereas, if they had a carry-over tube the flame would be, a perforated lighter
tube, the flame continues for the entire length and they would all light up at the
same time. Now, they have to jump a total of two inches. But this is-- or over
two inches, as a matter of fact. This is particularly undesirable when it's LP gas
because of the fact that LP gas is lighter and it comes out and then it will drop
down, whereas natural gas, that will come out in a cone, you'll have a much
easier distribution or propagation of the flame. But you have two inches to jump
here, and it just, in my opinion, can't do it, properly and safely.

13

Plaintiff Dean Hales' own testimony was that on one occasion shortly before
the fire the unit 'exploded so hard' that it 'bent the metal bottom down.'
Plaintiffs' theory, as urged on appeal, is that the gas dropped down, collected in
the botton of the unit and because of imperfect ignition, finally exploded.

14

Benberg's testimony concerning the absence of the flame tube was not
subjected to any cross-examination. Defendants challenge it on appeal on the
basis that one of their witnesses, Robert Mackley, the chief engineer for
Peerless Division of Dover, explained that the unit has a continuous series of
ports, called carry over ports, on the back, which ignite simultaneously. It was
conceded by the defense that there was no flame tube as such on the unit but
that the continuous ports constituted its equivalent. The unit along with

photographs are in the record. The exhibits demonstrate that there is not a
continuous connection on the 18 burners. This evidence was before the jury.
We find the exhibits when coupled with plaintiffs' explanation are sufficient to
create a reasonable inference that the heating unit was defective in that delayed
ignition could result by reason of the absence of a flame tube. See Tucker v.
Central Hardware Co., 463 S.W.2d 537 (Mo.1971).5
NO 'SUBSTANTIAL' CHANGE
15

Missouri has adopted 402A of the Restatement (Second) of Torts (1965), which
permits the liability of the supplier of a chattel to be determined under the
doctrine of strict liability. See Keener v. Dayton Electric Mfg. Co., 445 S.W.2d
362 (Mo.1969). This court has recently reviewed the Missouri cases as they
relate to strict liability and defective design. See Hoppe v. Midwest Conveyor
Co., Inc., 485 F.2d 1196 (8th Cir. 1973).

16

In the instant case the trial court instructed the jury as follows:

17

First, defendants sold the Peerless heater unit manufactured for use with natural
gas, and

18

Second, that the Peerless heater unit as manufactured by defendant Dover was
defective and, therefore, dangerous when put to the use reasonably anticipated,
and

19

Third, that the defendant Dover supplied the parts designed to convert the
natural gas heater to a propane gas heater, and if you further find that when
such parts were properly installed to convert the natural gas heater to a propane
gas heater said heater as converted was in substantially the same condition as it
would have been if originally sold by defendant Dover for use with propane
gas, and

20

Fourth, plaintiffs used the Peerless heater unit in a manner reasonably

anticipated and that as a direct result of defects in the Peerless heater unit as
sold by defendants plaintiffs' building and the contents were caused to be
destroyed by fire as a result of such defects, then your verdict would be for the
plaintiffs and against the defendants.

21

Defendants challenge the third paragraph of the above instruction, asserting that
since the heater was converted from one using natural gas to one using LP gas

it was no longer in the same condition as it was when it left the hands of Dover.
They therefore urge that the doctrine of strict liability is not applicable.
22

It is true that when the heater left Dover it was designed only for the use of
natural gas. We assume for purposes of our discussion that the unit was
properly designed for natural gas. The defendants contend that since the unit
was substantially changed when converted to a propane heater the defendant
manufacturer is not liable under 402A of the Restatement. The difficulty with
the defendants' argument is that the evidence shows Dover manufactured its
natural gas units so they could be converted for LP gas. And in fact the
particular conversion unit was sent by Dover to Munroe for this very purpose.
The evidence also shows that Munroe was paid by Green Colonial for the work
of converting6 the unit to LP gas since Munroe had orginally ordered an LP gas
unit but instead was supplied with a natural gas one. Furthermore the evidence
establishes that although the defendants' engineers called Munroe's work
'sloppy' his conversion was done only with the parts furnished him in the
conversion kit. There is nothing to show that Munroe did not install the parts
within normal tolerances or that the conversion itself contributed to the fire.

23

The law recognizes that there can be strict liability of a supplier even though
the product is altered or changed if it is foreseeable that the alteration would be
made and the change does not unforeseeably render the product unsafe. In
effect the question involved is simply whether the intervening alteration of the
product was the superseding cause of the injuries. Mazzi v. Greenlee Tool Co.,
320 F.2d 821 (2d Cir. 1963). Cf. Dennis v. Ford Motor Co., 471 F.2d 733 (3d
Cir. 1973). As the Second Circuit recognized:

24

The mere fact that there has been some alteration of the product does not, as a
matter of law, relieve the manufacturer of liability otherwise attaching to it . . ..
This, it seems, to us, must be the essence of any doctrine of 'substantial
alteration', and if the evidence was such that the jury could reasonably have
found that the alterations in question were not a superseding cause of the injury,
it was error to direct a verdict on that ground.

25

Mazzi, supra 320 F.2d at 826.

26

See also Sharp v. Chrysler Corp., 432 S.W.2d 131 (Tex.Civ.App.1968).

Missouri has recognized that the alteration of a product does not by itself render
the doctrine of strict liability inapplicable. See Williams v. Ford Motor Co., 411
S.W.2d 443, 450 (Mo.App.1970). Where the inadequacy of the change or
alteration is the sole cause of the damage then the question is one of law for the

court. Swindler v. Butler Mfg. Co., 426 S.W.2d 78 (Mo.1968). However,

where the evidence is conflicting, it is generally a question for the jury to
determine whether the defect is traceable to the time the product left the
manufacturing company. See Williams v. Ford Motor Co., supra; Anderson v.
Klix Chemical Co., 256 Or. 199, 472 P.2d 806 (1970).
CONTRIBUTORY FAULT
27

Defendants also urge that plaintiffs were guilty of 'contributory fault' since they
had prior knowledge that the heater was not working properly. Under the
doctrine of strict liability plaintiffs cannot be guilty of contributory fault unless
they had knowledge of the specific defect and continued to use the heater
knowing it to be dangerous. See Williams v. Ford Motor Co., 454 S.W.2d 611
(Mo.App.1970). In Morrow v. Caloric Appliance Corp., 372 S.W.2d 41
(Mo.1963) (en banc), the facts were somewhat similar. The Supreme Court of
Missouri rejected an instruction charging plaintiffs with knowledge of the
dangerous potentialities of a stove, even though they knew it was not
functioning properly. The court said plaintiffs 'should not be required to
anticipate that the valve controlling the left burners was also defective.' Id. at
57. In the present case the facts show that when the plaintiffs observed and
heard the popping noises they called the gas company whose serviceman came
out and regulated the pressure. Defendants assert that the gas company
improperly lowered the pressure. However, defendants' experts admitted they
were not aware of a pressure regulator on the back of the stove. Plaintiffs'
rebuttal by the gas company serviceman was to the effect that the regulator on
the back of the stove was the controlling regulator and that he had properly
taken the pressure at the right place. All of these facts were for the jury. In view
of the favorable verdict for the plaintiffs they are entitled to the presumption
that the jury rejected the defenses of contributory fault and the improper
pressure as intervening causes.

28

We conclude that the evidence was sufficient to sustain the verdict for the
plaintiffs.
DAMAGES

29

The defendants maintain that under the doctrine of strict liability damages for
destruction of property and consequential losses are not recoverable in
Missouri. The assertion is that the Missouri cases dealing with strict liability
have involved only physical harm. This overlooks Morrow v. Caloric Appliance
Corp., 372 S.W.2d 41 (Mo.1963) (en banc), as well as the subsequent adoption

by the Missouri Supreme Court of Restatement (Second) of Torts 402A (1965),

which extends the doctrine of strict liability to property damage as well as
physical harm.
30

Defendants contend that consequential damages such as loss of profits, the cost
of repairs and the expense of cleaning up after the fire are not recoverable
under strict liability. We deem the cost of repairs and clean-up as an integral
part of the direct property damage incurred. We are, however, somewhat
troubled by the $8,000.00 awarded for loss of profits. This is an indirect
economic loss and thus must be classified as consequential damages. The
argument is made that strict liability is akin to an action for implied warranty
and that consequential damages are not actionable under that theory in
Missouri.7 See Smith v. Ford Motor Co., 327 S.W.2d 535 (Mo.App.1959);
Krauskopf, Products Liability, 33 Mo.L.Rev. 24 (1968).

31

The question of the recovery of consequential damages under strict liability was
originally discussed by the California Supreme Court in Seeley v. White Motor
Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (Cal.1965) (en banc). There,
the primary distinction was drawn between tort recovery for physical harm and
property damage and an action in warranty to recover for economic loss. The
theory is basically that the law of warranty still governs the economic
relationship between the parties. Many decisions have followed Seeley. See
Bright v. Goodyear Tire & Rubber Co., 463 F.2d 240 (9th Cir. 1972);
Southwest Forest Industries, Inc. v. Westinghouse Electric Corp., 422 F.2d
1013, 1020 (9th Cir.), cert. denied, 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138
(1970); Noel Transfer & Package Delivery Service, Inc. v. General Motors
Corp., 341 F.Supp. 968 (D.Minn.1972); Farr v. Armstrong Rubber Co., 288
Minn. 401, 179 N.W.2d 64 (1970); Melody Home Mfg. Co. v. Morrison, 455
S.W.2d 825 (Tex.Civ.App.1970). Contra, Santor v. A & M Karagheusian, Inc.,
44 N.J. 52, 207 A.2d 305 (N.J.1965).

32

The cases where the damage has been limited to the 'loss of the bargain' have
generally been strictly commercial transactions involving parties in privity,
sometimes with disclaimers, or where the subpurchaser or the ultimate
consumer is involved the claim for relief has been based solely on economic
loss without accompanying damage to the plaintiff's other property.8 We are
not here dealing with the typical 'loss of bargain' issue. There is no claim that
loss of profits were caused by the defective heater inadequately heating the
building or that the plaintiffs incurred damages from loss of use of the heater.
Cf. Seeley v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145
(1965) (en banc) (loss of profits claimed from defective truck). Here the
defective heater burned plaintiffs' building and disrupted their business for

eight months. Loss of profits by reason of the tortious destruction of the

plaintiffs' business was a foreseeable damage ordinarily cognizable in tort
liability and therefore we find it to be compensable under Missouri law.9 See
Restatement of Torts 927 and 928 (1939).10
33

The judgment is affirmed.

34

BRIGHT, Circuit Judge (dissenting).

35

Only rarely and with great reluctance do I ever vote to overrule a jury verdict in
a civil case, but I would do so here to avoid an obvious miscarriage of justice.

36

The manufacturer, Dover Corp., did not supply the heater in the condition
which allegedly caused the fire in plaintiff's store building. Dover supplied its
wholesaler, Iowa Plumbers Supply, with a 300,000 BTU Peerless natural gas
heater. When Iowa Plumbers received an order from Green Colonial, Inc., a
supplier of heating units, to supply a 300,000 BTU propane heater to Harold
Munroe, a plumber servicing plaintiff's store, it sent the natural gas heater and a
conversion unit which Dover supplied for customers but which it did not
manufacture. Green Colonial passed this unit on to the plumber, Munroe, who
attempted to make a proper installation.

37

The record shows the plumber, Munroe, to have been less than an able artisan.
When the time came in the fall of the year to light the heater which had been
installed during the prior summer, the local propane distributor, Solar Gas
Company, discovered that the plumber had connected the natural gas heater to
the propane gas line without installing the conversion kit-- creating an
extremely dangerous situation. The propane serviceman disconnected the
heater from the gas service. Plumber-Monroe then ordered a second conversion
kit from his supplier, Green Colonial, and made the installation.

38

Although the plaintiffs complained of the operation of the heater, the plumber
upon learning of this 'trouble' with the heater, sought to make adjustments
himself without advising his supplier. Munroe asked the propane gas
serviceman to check the pressure. The latter found the pressure high in his
estimation and turned down the pressure valve, reducing the gas pressure to the
heater.

39

Credible expert testimony indicated that the gas serviceman should have
increased rather than decreased the pressure in the line. Finally, the undisputed
testimony established that the plumber upon installing the smaller orifices in

the heater during conversion to propane gas use failed to properly align these
orifices on an equal plane.
40

What we have here is the case of a manufacturer being held liable for merely
supplying a heater-- approved by industry standards-- which others altered,
installed, and serviced. It seems to me that the doctrine of strict liability should
not apply in such a case, unless plaintiff establishes that a defect existed in the
heater when it left the plant.

41

The existence of such a defect rests solely on the testimony of plaintiff's expert,
Alfred Benberg. The majority aptly and properly characterizes his airadjustment theory as 'confusing' and 'insufficient to sustain the verdict.'
Nevertheless, the majority finds a basis for the verdict in the same witness'
testimony that the absence of a flame tube constituted a factory defect which
caused the explosion in the heater.

42

The flaw in witness-Benberg's analysis is that, while criticizing the absence of

the flame tube, he made no comment concerning the alternate method chosen
by Dover to quickly spread the flame in its Peerless heaters. Dover's chief
engineer and a designer of the Peerless heater testified without dispute that the
Peerless heater contains a form of flame tube, a continuous row of 'carry-over
ports' running the total length of the heater. He further testified that a prototype
of the Peerless heater was tested under standards of the industry as promulgated
by the American Gas Association. The heater met the standard for ignition of
main burners and was certified as meeting industry standards including national
safety standards. Witness-Benberg simply failed to recognize the existence of a
flame tube differing in construction from flame tubes on other heaters with
which he apparently was familiar. The Benberg testimony thus does not
represent sufficient evidence on which to sustain this verdict.

43

A representative of the American Gas Association (testing) laboratories

testified:

44

Q. Now, do you have a standard there by which this heater was tested that has
to do with the operation and the ignition of the main burners? A. Yes, that
would be covered in the ignition test that we conduct. For example, under
Section 2.5.2 there is this standard or this provision, 'The arrangement of main
burners, burner valves and pilot burners shall be such that when only the pilot
burners are in operation the gas from any burner or combination of burners will
be effectively ignited without delayed ignition, flashback or danger to the
appliance under the condition of tests specified under 2.5.1, Clauses A to D,

inclusive.'
45

Q. Now, before you go on, Mr. Kampman, was this heater tested against that
standard in the laboratory of the American Gas Association? A. That prototype
was tested, yes.

46

Q. Right. And did it pass the test? A. It did.

47

Judges properly should give the juries great leeway in assessing the experts'
opinions. But in cases, such as this one, where the expert's testimony gives an
opinion ignorant of the actual operation of the product in question, the opinion,
must be ignored and a verdict, resting wholly on such opinion set aside.

48

I conclude that plaintiff presented no evidence of probative weight showing the

heater to be defective when it left the factory. Thus, I find no basis to assess any
liability against appellant-manufacturers or the appellant-suppliers. I would
reverse the judgment.

G. THOMAS EISELE, United States District Judge for the Eastern District of
Arkansas, sitting by designation

Munroe explained that he had either used or misplaced the original conversion
kit sent him at the time the heater was originally furnished

We find no error in this. We think it clear if Dover is liable to plaintiffs for

furnishing a defective heater which caused the fire it would not be legally
possible for it to obtain indemnification for alleged faulty installation. Nor do
we find error in the dismissal of the claim before it was submitted to the jury as
the defendants assert

Although the parties urge us to pass on the merits of the cross-claims 'to avoid
piece-meal appeals' we decline to do so. There is no judgment on the crossclaims by the district court and any ruling we could now give would be
advisory. This we lack power to do

Q. (By Mr. Waldeck) Mr. Benberg, with regard to the air shutter bar and the
flanges on it, what is the effect of the flanges with regard to the venturi
principle? A. By the flanges you mean these triangular fingers that stick up?
Q. The fingers. A. It reduces the velocity of the stream and-- rather it increases
the velocity of the stream.

The Court: Talking about air or gas?

The Witness: The mixture of air and gas, because this particular-- it reduces the
gas stream, or rather increases the velocity of the gas stream, and therefore-Mr. Hale: Now, Your Honor, I'm confused whether he means that when you
move this finger over into the stream of gas, Mr. Benberg, are you testifying
that increases the velocity of the gas stream?
The Witness: That's right.
Q. (By Mr. Waldeck) Go ahead, Mr. Benberg. A. Therefore, you will get some
air pulled in. How much I don't know.
5

In Tucker v. Central Hardware Co., 463 S.W.2d 537 (Mo.1971), plaintiff's

expert witness, Dr. Koopman, provided sufficient basis to submit the issue of
an alleged defective cable as causing a fire. The Missouri Supreme Court
observed:
In our opinion the testimony of Doctor Koopman was sufficient to permit the
jury to find that the more reasonable probability was that the fire resulted from
a defect in the cable for which defendant was responsible, i.e., which existed at
the time of installation of the cable. Such was the burden of plaintiffs. They
were not required to produce 'absolutely positive' proof. 'The finding, however,
must be based upon probative facts, and a verdict founded on speculation and
conjecture cannot stand. American Cyanamid Co. v. Fields, supra (4 Cir., 204
F.2d 151). Probative facts may be established by circumstantial evidence, and
while circumstantial evidence need not have the quality of absolute certainty,
Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292, the
circumstances must point to the desired conclusion with such a degree of
certainty as to make that conclusion reasonable and probable and must rise
above the stature of guesswork, speculation or surmise. Gray v. Williams,
Mo.App., 289 S.W.2d 463. Plaintiff's evidence must be viewed in the light most
favorable to him, and he is entitled to the benefit of all inferences reasonably
arising from the evidence. American Cyanamid Co. v. Fields, supra.' Green v.
Ralston Purina Company, Mo.Sup., 376 S.W.2d 119, 123-124(1-4). Koopman's
testimony was substantial evidence justifying a submission of plaintiffs' cause.
Id. at 540.

These facts at least as they apply to Green Colonial are analogous to the
automobile dealers servicing and making mobile a new car at the request of the
manufacturer. Cf. Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr.
896, 391 P.2d 168 (1964) (en banc)

The claim of implied warranty and one in strict liability are said to be treated
alike, at least in Missouri. Keener v. Dayton Electric Mfg. Co., 445 S.W.2d
362, 364 (Mo.1969). 1969)

An excellent discussion of the problem of consequential damages in strict

liability cases is found in Note, Economic Loss in Products Liability
Jurisprudence, 66 Colum.L.Rev. 917 (1966)

Although loss of profits was denied because of inadequate proof, in Jack L.

Baker Companies v. Pasley Mfg. & Distrib. Co., 413 S.W.2d 268 (Mo.1967), a
negligence suit involving an explosion and fire, the Supreme Court of Missouri
said:
The rule in this state with respect to loss of anticipated profits resulting from
actionable conduct of another is that they 'are recoverable only when they are
made reasonably certain by proof of actual facts which present data for a
rational estimate of such profits.' Yaffe v. American Fixture, Inc., Mo., 345
S.W.2d 195, 199. In Tnemec Company, Inc. v. North Kansas City Development
Co., Mo., 290 S.W.2d 169, 174, this court stressed that the evidence must be
sufficiently definite and certain for the jury to make a reasonably accurate
estimate of the loss without resorting to speculation. The court said: 'This court
and the court of appeals of this state have been strict in evaluating the
sufficiency of the evidence warranting a recovery of damages for loss of
profits. Our courts have refused to permit a jury to speculate, without
substantial basis, as to what might be probable or expected profits as an element
of damages.'
Id. at 270. See also Conley v. Kansas City Ry., 259 S.W. 153 (Mo.App.1924);
Smith v. Chicago & A. Ry., 127 Mo.App. 160, 105 S.W. 10 (1907).

10

Section 927 provides that:

Where a person is entitled to a judgment for the conversion of a chattel or the
destruction of any legally protected interest in land or other thing, the damages
include (a) the exchange of value of the subject matter or the plaintiff's interest
therein at the time and place of the conversion or destruction, or a different
value where that is necessary to give just compensation, and (b) the amount of
any further loss suffered as the result of the deprivation, and (c) interest from
the time at which the value is fixed or compensation for the loss of use.
Section 928 provides that:
Where a person is entitled to a judgment for harm to chattels not amounting to a
total destruction in value, the damages include compensation for (a) the

difference between the value of the chattel before the harm and the value after
the harm or, at the plaintiff's election, the reasonable cost of repair or
restoration where feasible, with due allowance for any difference between the
original value and the value after repairs, and (b) the loss of use.