Hentschel v. Baby Bathinette Corp., 251

• Citation: 215 F.2d 102
• Decision Date: 27 July 1954
• Docket Number: No. 251,Docket 23021.,251
• Parties: HENTSCHEL et al. v. BABY BATHINETTE CORP. et al. (WHITE METAL ROLLING & STAMPING CORP., third party defendant).
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

215 F.2d 102 (1954)

HENTSCHEL et al. v. BABY BATHINETTE CORP. et al. (WHITE METAL ROLLING & STAMPING CORP., third party defendant).

No. 251, Docket 23021.

United States Court of Appeals, Second Circuit.

Argued April 8 and 9, 1954.

Decided July 27, 1954.

Vine H. Smith, Brooklyn, N. Y., for plaintiffs-appellants.

Reilly, Dicker, McLouth & Lines, Rochester, N. Y., Stephen V. Lines, Rochester, N. Y., of counsel, for defendants-appellees, Baby Bathinette Corp. and Sears, Roebuck & Co.

George Berkowitz, New York City, for third party, defendant-appellee.

Before CHASE, Chief Judge, and SWAN and FRANK, Circuit Judges.

CHASE, Chief Judge.

The plaintiffs-appellants are a husband and wife who with their baby, and their other children, a boy five, and a girl three years old, were living in a four-room apartment in Muskegon, Mich., when a fire broke out in the bathroom on the morning of January 12, 1949. A baby bathinette which was then in the bathroom was ignited and its supports, made of a magnesium alloy known as MF, burned fiercely and were nearly consumed before the fire could be extinguished. The appellants and their children were in the apartment at the time and the danger to them, as well as to the apartment and its furnishings, was much increased by the burning magnesium alloy. They succeeded in getting the children safely out of the apartment but they were both injured in so doing.

The bathinette had been purchased by the appellant, Jerome Hentschel, from the appellee, Sears, Roebuck and Company about a year before the fire occurred and had been used in the apartment without mishap for the purpose for which that appellee had sold it; i. e., for bathing the baby. It had a waterproof plastic top to hold the water used for bathing and that top was supported by four legs crossed in X-shape made of magnesium alloy with wooden extensions. The magnesium alloy was composed of 96.83% magnesium; 1.39% aluminum; .96% manganese; and .82% zinc and silicon. The alloy was .049 of an inch thick and was extruded to make hollow pieces one inch square which were cut into lengths suitable to support the plastic top at the desired convenient height with the upper ends fastened to the top

The bathinette had been manufactured by the Baby Bathinette Corporation and sold to Sears, Roebuck and Company for resale. The hollow, square pieces of magnesium alloy from which the legs had been made had been purchased by the Baby Bathinette Corporation from the White Metal Rolling & Stamping Corp., which had manufactured and sold them for such use.

The appellants brought this suit, there being diversity jurisdiction, against the Baby Bathinette Corporation, Sears, Roebuck and Company, and Dow Chemical Corporation to recover damages for the personal injuries they had sustained. The complaint was dismissed as to the Dow Chemical Corporation for lack of jurisdiction and no issue survives as to that. The White Metal & Rolling Corp. was impleaded by the Baby Bathinette Corporation as a third party defendant. Negligence in constructing the bathinette of improper material was charged in the complaint as the cause of the fire and the resulting injuries to the plaintiffs, as well as a breach of warranty to appellant Jerome Hentschel by the seller of it to him.

After a trial by jury, a verdict was returned for the defendants and this appeal is from the judgment on that verdict. The appellants rely for reversal upon asserted error in the charge and as to rulings during the trial admitting and excluding evidence.

The jury would have been justified in finding from the evidence substantially as follows:

What caused the fire to start in the bathroom was not proved. It was not, however, caused by the spontaneous combustion of any material of which the bathinette was constructed and the parts of that which were made of magnesium alloy began to burn only after one or more of them had been subjected to heat from some other source at a temperature of at least 1050-1100°F. When the magnesium alloy did get hot enough to burn the fire increased in intensity and was extremely difficult to extinguish with water since the use of water not in sufficient quantity to overwhelm such a fire will cause the release of inflammable hydrogen. This fire burned intensely and bursts of bluish flame shot out into the air to such an extent that Mrs. Hentschel received part of her burns from such bursts of flame when she was in her bedroom which was separated from the bathroom by a hallway.

The judge denied a motion by the defendants to dismiss the complaint when the evidence was closed and, without requests to charge, submitted the issues to the jury in a charge to which no exceptions were taken. That portion of the charge which the appellants now insist was erroneous was to the effect that there could be no recovery by either plaintiff on an implied warranty, or on the claim based on negligence, unless it was found that "this baby bathinette was the cause of the occurrence of the fire originally." It was made plain to the jury that if the fire was otherwise started and the bathinette was ignited because "it became subjected to flames from a previously started fire" there should be a verdict for the defendants.

Although there was no exception to the charge pursuant to Rule 51 F.R.C.P., 28 U.S.C.A., that does not necessarily preclude review on this appeal as we think there was no need to give the judge any opportunity to correct any inadvertent error. Sweeney v. United Features Syndicate, 2 Cir., 129 F.2d 904. He knew that one theory of recovery on which the plaintiffs relied was the asserted inherently dangerous character of the bathinette because of the intensity with which the magnesium alloy, of which it was in part constructed, would burn if it caught fire for any reason and evidently charged as he did with full appreciation of that.

In respect to the claim resting on the alleged negligence of the manufacturer, the general rule is that when the manufacturer of an article sells it ready for use and when used in the way the manufacturer intended to have it used it is an inherently dangerous instrumentality, the danger being unknown to the purchaser and not being patent upon reasonable inspection or disclosed to him, the manufacturer is liable to one who is personally injured while using it in the usual and intended manner. Coleman Co. v. Gray, 10 Cir., 192 F.2d 265; Reed & Barton Corporation v. Maas, 1 Cir., 73 F.2d 359; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696; Noone v. Perlberg, Inc., 268 App.Div. 140, 49 N.Y.S.2d 460; Crist v. Art Metal Works, 230 App.Div. 114, 243 N.Y.S. 496, affirmed 255 N.Y. 624, 175 N.E. 341; Restatement, Torts, Sec. 388.

There was no evidence to show that this bathinette had any hidden defect which would make it unsafe for use in bathing a baby in the usual way or that in ordinary use it would come in contact with heat of from 1050-1100°F., or more, to cause it to catch fire. There was nothing about it which would create a fire and unless subjected to such a high temperature the magnesium alloy would not burn at all.

The cases cited above, upon which the appellants rely, are clearly distinguishable. In Coleman Co. v. Gray, Reed & Barton Corporation v. Maas, and MacPherson v. Buick Motor Co., the respective plaintiffs were injured when defective products were unable to stand up under normal and expected use. In Noone v. Perlberg, Inc., and Crist v. Art Metal Works the products were not defective in construction but were inherently dangerous when used in the normal way. Here the bathinette was in no way dangerous in normal use. It was only in situations of abnormality that it became dangerous; that is where it was exposed to extreme heat, and it would not reasonably be expected that a bathinette constructed in part of wood and plastic would be used where it would come into contact with heat of some 1100°F.

It is quite true that in abnormal situations, which would subject the alloy to heat in excess of its ignition point, the bathinette would become dangerous. But the danger would be a relative matter. The magnesium would be more dangerous in a fire than wood or some other substances used in making bathinettes because of its higher burning temperature. But where an article is not inherently dangerous in its normal or intended use neither its manufacturer nor vendor is liable for a result which is brought about by its subjection to unusual and extraordinary conditions. Beickert v. G. M. Laboratories, 242 N.Y. 168, 151 N.E. 195.

The same conditions apply to the claim based on breach of warranty. There was, of course, an implied warranty that the bathinette was reasonably fit to be kept in a home for use in bathing a baby and was not a fire hazard in itself. But there was no warranty that it was non-combustible.

The questions relating to the admission and exclusion of evidence are not relevant to the decisive issue raised as to inherent danger as a result of the material used in constructing the magnesium leg frames and we find no prejudicial error in respect to them.

Affirmed.

FRANK, Circuit Judge (dissenting).

The question here is this: Ought the judge have allowed the jury to determine whether or not defendants should reasonably have foreseen that the thin sheets of magnesium, covering the legs of the bathinette, might be ignited, should a fire break out in the dwelling of a purchaser of the bathinette? My colleagues concede that such a fire might well lead such magnesium sheets to ignite and explode, and that the jury could rationally have found that just that did occur here, with serious damage to plaintiffs which would not have resulted from an ordinary fire, absent the magnesium sheets. But my colleagues hold, in effect, that here the judge correctly directed a verdict for the defendants with respect to this issue, because the occurrence of a household fire is so "abnormal" as not to be...