191 F.2d 169 (2nd Cir. 1951), 264, Pabellon v. Grace Line

Docket Nº:264, 22000.
Citation:191 F.2d 169
Party Name:PABELLON v. GRACE LINE, Inc. (COSTON SUPPLY CO. et al., third-and-fourth-party defendants).
Case Date:July 26, 1951
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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191 F.2d 169 (2nd Cir. 1951)



GRACE LINE, Inc. (COSTON SUPPLY CO. et al., third-and-fourth-party defendants).

Nos. 264, 22000.

United States Court of Appeals, Second Circuit.

July 26, 1951

Argued June 5, 1951.

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James B. Magnor, New York City (Kirlin, Campbell & Keating and Vernon S. Jones, New York City, on the brief), for third-party plaintiff-appellant, Grace Line, Inc.

Vincent A. Catoggio, New York City (Mitchell, Capron, Marsh, Angulo & Cooney and Earle J. Starkey, New York City, on the brief), for third-party defendant-appellee Coston Supply Co.

Paul M. Klein, New York City (Tashof & Sobler and Martin A. Rothenberg, New York City, on the brief), for third-party defendant-appellee Rudman & Scofield, Inc.

Wilbur M. Jones, New York City (John W. Trapp, New York City, on the brief), for third-party defendant-appellee Dearborn Chemical Co.

John W. Burke, Jr., New York City (Davies, Hardy, Schenck & Soons, New York City, on the brief), for third-party defendant-appellee Oakite Co.

David Hartfield, Jr., New York City (White & Case, Lowell Wadmond, and Donald Cronson, New York City, on the brief), for third-party defendant-appellant Swift & Co.

I Arnold Ross, New York City (Arthur C. Kellman, New York City, on the brief), for fourth-party defendant-appellee McKesson & Robbins, Inc.

Walter E. Warner, Jr., New York City (Chambers, Clare & Gibson, New York City, on the brief), for fourth-party defendant-appellee Orlbury Electro-Chemical Co.

Before CHASE, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

In its initial stage this was an action for damages and maintenance and cure by a seaman injured through the alleged negligence of the original defendant while working upon the latter's merchant vessel, Santa Isabel. The immediate cause of the injury was alleged to be 'a violent and explosive disintegration of some of the appurtenances and appliances upon which, and with which, plaintiff was then and there working, ' which resulted in the striking of plaintiff's body with fragments of the appurtenances and a severe and extensive burning of it thereby also occurring. As the trial judge explained, 'An examination of the plaintiff elicited that the explosion had occurred after he had mixed together a quantity of caustic soda or lye, sold under the name of 'Dearborn Cleaner No. 7, ' used for cleaning drains, 'Pride' washing powder, a quantity of oxalic acid, and a quantity of cleanser under the brand name of 'Oakite." 94 F.Supp.at page 990. The defendant shipowner thereupon brought amended third-party complaints against six third-party defendants, including the suppliers to it of these cleansers and detergents and their manufacturers. In this complaint it stated three claims for relief:

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the first for breach of warranty against the suppliers; the second for negligence against all; and the third for contribution from all as joint tort-feasors with it. One of the suppliers, Rudman & Scofield, Inc., in turn brought a fourth-party complaint against its supplier and the manufacturer, McKeeson & Robbins Incorporated and Oldbury Electro-Chemical Co. Then Grace Line, Inc., the original defendant, moved to dismiss the complaint against it, and the various other defendants moved for dismissal of the complaints against them, in each case for failure to state claims on which relief can be granted. The court refused to dismiss the original complaint, but did grant the other motions dismissing the third- and fourth-party complaints, D.C.S.D.N.Y., 94 F.Supp. 989, and Grace Line, Inc., and Rudman & Scofield, Inc., both appeal.

Grace Line has not appealed from the court's refusal to dismiss the original complaint, and that stands. In so refusing the court said: 'In the first claim the plaintiff alleges the unseaworthiness of defendant's vessel and defendant's negligence. Whether liability may be imposed upon defendant depends upon the circumstances under which the explosion occurred such as instruction, custom in mixing certain cleaning products and the like.' 94 F.Supp.at page 990. But when it came to consider the claims over against the third-party defendants it took the view in substance that an explosion of such unusual character as was claimed could not have been reasonably foreseen by the defendant manufacturers and suppliers and that there was no basis for claims of warranty or negligence. It added that this made unnecessary consideration of the third claim for contribution, although its judgment dismisses all claims.

In thus dismissing the complaints over on the face of the pleadings, we think the court has committed the not unusual error of attempting to make haste too rapidly by dispensing with a trial in advance of knowledge of what might develop there. Viewed as a pleading under the liberal Federal Rules, 28 U.S.C.A., the amended third-party complaint now before us seems to us fairly adequate. Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451; Dioguardi v. Durning, 2 Cir., 139 F.2d 774, 775. Indeed, it sets forth quite fully and frankly the situation in which the Grace Line finds itself by reason of the claim made against it by the plaintiff and its view that if it is to be held liable it has a proper claim for indemnity or at least contribution from those who put in its hands these instrumentalities which eventually proved dangerous in combination. Had it said more, it would have had to make allegations by guess; had it said less, we might have found no ground whatever for recovery. But as it stands we cannot say that there is no legal basis in any event for a claim of liability. Hence dismissal of the third-party complaint at this early stage of the case was not justified.

Upon the allegations before us, there would appear to be at least a possibility of liability against the suppliers for breach of warranty and against all the defendants for negligence as alleged. True, one naturally tends to view with some skepticism so unusual an accident, as well as the extensive claims made as to it. Nevertheless, such a case as Pease v. Sinclair Refining Co., 2 Cir., 104 F.2d 183, 123 A.L.R. 933, shows that the unusual may happen by way of accident and that liability may be properly assessed against a defendant manufacturer. This case, cited by Grace Line, is support, particularly for the second claim based on negligence and forseeability, although the district court refused to accept any analogy, saying that 'there the basis of the wrong was mislabeling.' But this seems hardly adequate. There a chemistry teacher had obtained from the defendant oil company the latter's exhibit of petroleum products for demonstration purposes. Included among these was a sample bottle marked 'kerosene, ' although it actually contained water for supposed safety in handling. Thinking it kerosene, a preservative of sodium, the teacher poured the contents of the bottle on sodium, causing an explosion and resultant grievous injury to him. We held that the case was properly submitted to the jury on the issue of negligence and

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forseeability of harm, and sustained a plaintiff's verdict. The defendant manufacturers say that they cannot be held for any but latent or hidden defects in the absence of any privity of contract with Grace Line; but the exceptions stated would seem applicable here if any defects existed at all. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696; Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802; McSpedon v. Kunz, 271 N.Y. 131, 2 N.E.2d 513, 105 A.L.R. 1497; Schuylerville Wall Paper Co. v. American Mfg. Co., 272 Spp.Div. 856, 70 N.Y.S.2d 166; Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521, with annotation at 527.

Dismissal of the first claim, founded upon breach of warranty, appears to have been based on a misconception of law. The court held that this claim was rendered 'completely insufficient' by the provision of the Sales Act, N.Y. Personal Property Law, McKinney's Consol. Laws, c. 41, Sec. 96, subd. 4, that in the case of a sale 'of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.' But this is to overlook the settled construction of the statute to the effect, first, that the mere fact that the article happens to have a trade name does not, per se, bring the sale within its provision and, second, that even if it does the section does not necessarily exclude the warranty contained in the second subdivision. Foley v. Liggett & Myers Tobacco Co., 136 Misc. 468, 241 N.Y.S. 233, 238, affirmed 232 A.D. 822, 249 N.Y.S. 924. See also Bencoe Exporting & Importing Co. v. McGraw Tire & Rubber Co., 212 A.D. 136, 208 N.Y.S. 4; Sachter v. Gulf Refining Co., Sup. App. T., 203 N.Y.S. 769; Ganoung v. Daniel Reeves, Inc., 149 Misc. 515, 268 N.Y.S. 325; Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339, with annotation at 343; Botti v. Venice Grocery Co., 309 Mass 450, 35 N.E.2d 491, 135 A.L.R. 1387, with annotation at 1393; Deffebach v. Lansburgh & Bro., 80 U.S.App.D.C. 185, 150 F.2d 591, 168 A.L.R. 1052, with annotation at 1054, certiorari denied Lansburgh & Bro. v. Deffebach, 326 U.S. 772, 66 S.Ct. 177, 90 L.Ed. 466.

There is good reason for this principle of law, since a mere purchase under a trade name does not prove that the purchaser is not relying at all on the skill and judgment of the seller or on the justified belief that the article will perform a particular function. A cleaner is, after all, generally expected to be a cleaner, whatever its fancy name. Compare L. Hand, J., in McNeil & Higgins Co. v. Czarnikow-Rienda Co., D.C.S.D.N.Y., 274 F. 397, 399, that 'presumably the brand means some uniform quality,...

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