176 F.2d 410 (3rd Cir. 1949), 9849, Diesbourg v. Hazel-Atlas Glass Co.

Docket Nº:9849.
Citation:176 F.2d 410
Case Date:May 25, 1949
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 410

176 F.2d 410 (3rd Cir. 1949)




No. 9849.

United States Court of Appeals, Third Circuit.

May 25, 1949

Argued May 5, 1949.

As Amended June 13, 1949.

Harold Scott Baile, Philadelphia, Pa. (Pepper, Bodine, Stokes & Hamilton, Philadelphia, Pa., on the brief), for appellant.

Joseph Head, Jr., Philadelphia, Pa. (John B. Martin, Philadelphia, Pa., Duane,

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Morris & Heckscher, Philadelphia, Pa., on the brief), for appellee.

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

GOODRICH, Circuit Judge.

This is an appeal by the defendant from a judgment in favor of the plaintiff in a personal injury case. Plaintiff, the proprietor of a filling station in Florida, was injured when he endeavored to remove the cap from a bottle containing some cleaning fluid which he was about to use in the course of his business. The bottle had been made by the defendant in Ohio and shipped to a manufacturing concern in New Jersey. There it was filled with cleaning fluid which found its way into the filling station of the plaintiff's predecessor in business, and was part of the stock in trade which plaintiff took over when he purchased the filling station. We do not know when the bottle was manufactured, when it was filled with the cleaning fluid, or when it came to rest on the shelves of the Florida filling station.

The case is in federal court on diversity grounds only. We, therefore, look to the Pennsylvania law to guide us. Since, in this case, we deal with foreign operative facts we, of course, look to the Pennsylvania rules of conflict of laws. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1620, 85 L.Ed. 1477. In a case involving a foreign tort, Pennsylvania adopts the usual rule of reference and looks to the place of wrong for the rules to determine liability. 1 Our reference then is to Florida tort law and we apply the Florida decisions insofar as they give us any help with the problems to be settled. Otherwise, we find the Florida law as best we can 'from the materials at hand.'

We turn, then, to the propositions advanced by the defendant as reasons for reversal.

1. Defendant says that it is not liable because there is no privity between it and the plaintiff. It acknowledges the existence of the well known case of MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696 Ann.Cas. 1916C, 440, but says that while that decision may be applicable to an automobile wheel, it is not applicable to a glass bottle. The defendant misapprends what has been going on in tort law since that case was decided. Judge Cardozo, in the MacPherson opinion, gathered up the batch of exceptions to the old rule of non-liability which talked in terms of 'inherently dangerous, ' 'imminently dangerous, ' 'eminently dangerous, ' and so on, and restated them as a modern rule of law in terms of duty. It was a landmark decision and was almost immediately followed. The principle found expression in Section 395 of the Restatement of Torts, and has recently been enunciated in a broad and thorough fashion by the Supreme Court of Massachusetts which, for some time, held back from the full acceptance of the growing doctrine. 2 We find nothing in the Florida cases to indicate any lack of acceptance of what is now regarded as the modern rule. 3 Our conclusion upon this point is against the defendant.

2. Defendant complains that he was refused an instruction to the jury that the standard of care for the defendant 'is to use those methods and procedures which are ordinarily adopted in the profession or trade * * *.' The Judge admitted testimony as to what precautions those in the trade took to guard against defects in the product. But he charged the jury in general terms of liability for want of due care under the circumstances, thus leaving to them the question whether the defendant,

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assuming that it had followed standard practices, was nevertheless negligent.

In this the Trial Judge was right. The law on this question was summed up a few years ago by Francis H. Bohlen. 4 He put the matter as follows: 'It is universally held that, while evidence may be given as to the customary manner in which a particular business is usually carried on, this is merely to inform the jury as to the practices in the business, such a business custom no matter how universal does not establish the standard of care to which those who carry it on must conform.' He called attention to the exception to this rule in the case of physicians and surgeons who are '* * * only required to exercise that professional skill which can be expected of physicians or surgeons in the same sort of locality as that in which the services are rendered.' 5

The defendant presses the language in certain Pennsylvania decisions which seem to sustain the position that adherence to usual commercial practice is sufficient to free one from the charge of negligence. 6 It may be doubted whether these statements fully represent Pennsylvania law. 7

But even if the language referred to does represent Pennsylvania law, it does not control this case. The proposition under discussion is part of the substantive tort law and concerns the standard of conduct to which an actor must conform if he is not to be held liable for injuries his conduct has inflicted. One could make argument in this instance for referring that matter either to Florida, the place of wrong, or to Ohio. The theory upon which reference might be made to Ohio is that the standard for the liability-creating character of the actor's conduct has been defined by its law. 8 Ohio comes into it, it will be remembered, because the bottles were made in Ohio. Alternatively, the matter could be referred to Florida law, since Florida is where the plaintiff was hurt. Both Ohio law and Florida law, however, show adherence to the general rule enunciated in the quotation from Professor Bohlen above. 9

3. The defendant says there was no proof of negligence. If it is right in this, it is...

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