Mannsz v. Macwhyte Co.

• Decision Date: 08 May 1946
• Docket Number: No. 8999,9000.,8999
• Citation: 155 F.2d 445
• Parties: MANNSZ v. MACWHYTE CO. et al. ELLIS v. SAME.
• Court: U.S. Court of Appeals — Third Circuit

155 F.2d 445 (1946)

MANNSZ v. MACWHYTE CO. et al. ELLIS v. SAME.

Nos. 8999, 9000.

Circuit Court of Appeals, Third Circuit.

Argued January 22, 1946.

Decided May 8, 1946.

COPYRIGHT MATERIAL OMITTED

James J. Burns, Jr., of Pittsburgh, Pa., for appellants.

Mahlon E. Lewis, of Pittsburgh, Pa. (William J. Kenney and Stewart & Lewis, all of Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, MARIS and GOODRICH, Circuit Judges.

BIGGS, Circuit Judge.

The plaintiff, Dorothy King Mannsz, a citizen of Pennsylvania, the widow of Donald King, brought suit in the Court of Common Pleas of Allegheny County, Pennsylvania, against Macwhyte Company (Macwhyte), an Illinois corporation, and against Bradford Supply Company (Bradford), a Pennsylvania corporation. Donald King purchased from Bradford at Warren, Pennsylvania, a wire rope, described hereinafter, used by him to support a scaffold on which he and Myron R. Ellis worked. The rope broke, causing one end of the scaffold to fall to the ground. King was killed; Ellis was injured. Mrs. Mannsz' suit was removed to the court below pursuant to Section 28 of the Judicial Code, 28 U.S.C.A. § 71. The court below, ruling that Mrs. Mannsz' cause of action against Macwhyte was separate and distinct from her cause of action against Bradford, remanded her action against Bradford to the Court of Common Pleas of Allegheny County. Ellis sued Bradford and Macwhyte in the court below in a single suit. It appears that a motion, made by Bradford to dismiss Ellis's action as to it because of lack of diversity, was granted.¹

Before answer Macwhyte filed a motion to dismiss the Mannsz suit on the ground that the complaint did not set forth a cause of action. The motion was denied² by the court below on the authority of Sierocinski v. E. I. DuPont De Nemours & Co., 3 Cir., 118 F.2d 531. Both cases were then brought on for trial. It was stipulated that the Ellis proceeding should be treated as if a like motion had been made by Macwhyte and had been disposed of as had Macwhyte's motion in the Mannsz case. Both cases were then tried together.³ At the close of the plaintiffs' evidence the court below granted motions made by Macwhyte for directed verdicts. The plaintiffs moved for new trials. The motion was denied. See D.C., 60 F.Supp. 76. Both plaintiffs have appealed.

The complaints in both cases assert breach of warranty and negligence by Macwhyte, charging it with improperly manufacturing the rope, with not having inspected it properly, and with having negligently represented it as fit for the purpose for which it was used. In its answer Macwhyte denied that the rope was not properly manufactured or adequately inspected and asserted that it was not used by King for the purpose for which it was manufactured.

The evidence shows the following, taking those inferences therefrom most favorable to the plaintiffs. King used the wire rope to suspend a scaffold upon which he and Ellis were working. Specifically, the wire rope, 16 feet in length and cut into two pieces of about equal length, was employed by King to hang from a channel iron blocks, pulleys and hooks which, in turn supported other ropes connected to the scaffold.

The evidence showed that the two pieces of wire rope were clamped into closed loops and from each of these loops was hung a block connected by tackle with another block, from which in turn the scaffold was suspended. The wire rope in turn was fastened around a channel iron at the top of the building from which the whole scaffold and its accouterments were hung. The channel iron had an edge which, though not sharp in any literal sense, none the less might cut by abrasion a wire rope of the sort employed by King.

There was uncontradicted evidence that the wire rope had been "moved" two or three times; that is to say, had been fastened or unfastened several times as the scaffold had been moved from building to building. There was also testimony that the scaffold might have swung a little as the men moved upon it. The left hand section of the wire rope broke. If it were proven that the break occurred at some point around the channel iron, the plaintiffs probably could not recover for it might then be assumed that the rope had been cut by abrasion. The evidence, however, shows that the break occurred "* * * in the area below the channel iron".⁴ The word "area" was used by the witness to designate that part of the wire rope which lay beneath the channel iron. The parting of its fabrics apparently did not take place because of abrasion as warned against in the manual heretofore referred to.

The scaffold and its accouterments⁵ weighed not more than 300 pounds. King weighed 150 pounds and Ellis weighed 170 pounds. The total burden upon the wire rope did not exceed 650 pounds. Actually the suspended weight was one-half of this since the scaffold was hung from two places, halving the weight.

The plaintiffs introduced into evidence a manual published by Macwhyte. At the top of the pertinent page appears the following: "Macwhyte Wire Rope, 6×42, Tiller or Hand Rope". There follows a printed simulacrum of the rope and a cross-section of it. Then appears, inter alia, the following:

"This is the most flexible wire rope made but because of its fine wires, it should be subjected to very little abrasive wear. It is made of 6 strands of 42 wires each,⁶ a total of 252 wires. Each strand is a complete 6×7 rope fabricated around a central hemp cord making 7 hemp cords in all.

"It is used as a hand rope in connection with the operating device of passenger and freight elevators, as steering cable on small boats and steamers, and for industrial and mining devices.

"Prices: List Price for Bright Ropes are shown below. Any rope smaller than that listed takes the price of the smallest rope listed. Any other omitted sizes take the next largest price shown. For Galvanized Ropes add 25% to these lists and apply the Bright Rope discount."

Then follow the words and figures: "Macwhyte 6×42 Tiller Rope" and a chart in box form. The first column headed "Diameter in Inches" gives various widths of rope beginning at 3/16ths and running to 7/8ths including 5/16ths. The next column headed "List Price Per Foot", is divided into 3 sub-columns headed respectively, "Iron", "Cast Steel" and "Plow Steel". Under the heading "Iron" and parallel to the figures "5/16" hereinbefore referred to appears ".08". The third column is headed "Approx. Weight Per Ft. in Lbs." and in this column parallel to the figures "5/16" and ".08" appears ".11". The last column is headed "Approx. Breaking Strength in Tons of 2000 lbs." This column has three sub-headings, viz., "Iron", "Cast Steel" and "Plow Steel" and under the column headed "Iron" and parallel to the figures heretofore specifically designated, "5/16", ".08" and ".11" appear the figures ".977". Translating the foregoing into non-technical language it would appear that the wire rope used by King should have supported a weight of almost one ton or, using a very broad margin of safety, more than twice that which had been put upon it when the accident occurred.

Macwhyte, asserting that the wire rope was not put to any use for which it was intended, pointed out that it was not used as a hand rope in the operation of an elevator or as a steering cable on a small boat or for industrial and mining signal devices, or put to any like use. The plaintiffs assert that this is immaterial; that the table of tensile strengths quoted from the manual was none the less applicable; that the tensile strength ascribed by the manual to wire rope of this size was much more than was required to suspend safely the weight that it was required to carry.

Macwhyte contends that since the wire rope was galvanized it was not within the purview of the tensile strengths shown in the manual. This contention, however, is belied by the page itself. The only reference to "Galvanized Ropes" was the following, "For Galvanized Ropes add 25% to these lists and apply the Bright Rope discount." As will be observed the allusion to galvanized ropes relates only to price and not to tensile strength. The table of tensile strengths immediately follows the sentence quoted. The representation in the manual therefore is to the effect that galvanized wire ropes would possess the same or substantially the same tensile strengths as the ungalvanized ropes referred to in the manual. No substantial evidence was introduced which indicates that galvanized wire ropes possess less tensile strength than wire rope which is not galvanized.⁷

The rule enunciated by the Supreme Court in Klaxon Co. v. Stentor Electric Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 requires mention. That ruling is to the effect that in diversity of citizenship cases, such as those at bar, a federal court must follow the rule of conflict-of-laws of the State in which it sits. The conflict-of-laws rule of Pennsylvania is that the law of the place where the operative facts occurred must govern the rights of the parties. See the Pennsylvania Annotations to Section 378, Restatement, Conflict of Laws, as cited. Since the operative facts took place in Pennsylvania that law will govern the substantive rights of the parties. Under Pennsylvania law the plaintiffs may approach the goal of recovery by two roads as they have attempted to do in the cases at bar: viz., (1) by proof of breach of express warranty or (2) by proving that Macwhyte was negligent in its manufacture of the wire rope or in the inspection of it. We think it is clear that whether the approach to the problem be by way of warranty or under the doctrine of negligence, the requirement of privity between the injured party and the manufacturer of the article which has injured him has been obliterated from the Pennsylvania law. The abolition of the doctrine occurred first in the food cases, next in the beverages decisions and now has been extended to those cases in which the article...