Mason v. American Emery Wheel Works

• Decision Date: 08 March 1957
• Docket Number: No. 5168.,5168.
• Parties: Whit MASON, Plaintiff, Appellant, v. The AMERICAN EMERY WHEEL WORKS, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

241 F.2d 906 (1957)

Whit MASON, Plaintiff, Appellant, v. The AMERICAN EMERY WHEEL WORKS, Defendant, Appellee.

No. 5168.

United States Court of Appeals First Circuit.

March 8, 1957.

Thomas E. Durkin, Jr., Newark, N. J., M. Louis Abedon, Providence, R. I., on the brief, for appellant.

Francis V. Reynolds, Providence, R. I., Richard P. McMahon, Providence, R. I., on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

Whit Mason, a citizen of Mississippi, filed his complaint in the United States District Court for the District of Rhode Island against The American Emery Wheel Works, a Rhode Island corporation. The case was one in tort for personal injuries alleged to have been suffered by the plaintiff in Mississippi as a result of negligent misfeasance by the defendant in putting out in commerce without adequate care and inspection, a dangerously defective emery wheel. According to the allegations of the complaint, at some time prior to the date of the accident defendant negligently manufactured, inspected and tested a certain emery wheel designed for attachment to a bench grinder; that due to such negligence the emery wheel was not reasonably fit for the use for which it was intended, but on the contrary subjected to a risk of personal injury all persons lawfully using a bench grinder with the emery wheel attached; that on February 10, 1953, the plaintiff, while in the scope of his employment by T. H. Pearce Company, Forrest County, Mississippi, was operating a bench grinder with an emery wheel attachment manufactured by the defendant; that the said emery wheel, while being so used, did disintegrate and shatter, inflicting serious bodily injury to the plaintiff as a proximate result of defendant's said negligence.

On the face of the complaint it did not specifically appear that plaintiff was not in privity of contract with defendant. The answer of defendant, in addition to denying negligence, and denying that it had manufactured the particular emery wheel which had caused plaintiff's injuries, also set forth as a "First Defense" that the complaint failed to state a claim upon which relief might be granted, and as a "Fourth Defense" that defendant "owed no duty to the said plaintiff as there is no privity of contract between the plaintiff and the defendant."

The case came up for trial before a jury. Plaintiff's evidence tended to show that a certain emery wheel, supposed to withstand a rotation speed of 3600 r. p. m., was purchased by the Hoover Company, a New Jersey corporation, from the defendant for attachment to a bench grinding machine made by the Hoover Company; that the Hoover Company affixed to the said bench grinding machine, with emery wheel attached, a label indicating that the bench grinder had been manufactured by Miller Falls Company, a Massachusetts corporation; that said bench grinder, having been packed in a crate, and without being removed therefrom, was successively sold by the Hoover Company to Miller Falls Company, by the latter to Komp Equipment Company, and finally by Komp Equipment Company to T. H. Pearce Company, the plaintiff's employer; that the said grinding machine was unpacked from its original package and affixed to plaintiff's work bench; that while plaintiff was using it in the ordinary and proper manner the emery wheel disintegrated and exploded in plaintiff's face, causing the injuries complained of.

At the conclusion of the plaintiff's case defendant made an oral motion to dismiss the complaint under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. This motion to dismiss was granted by the district court, and an order was entered dismissing the complaint, from which the present appeal was taken.

Since the injury was inflicted in Mississippi, the district court, no doubt correctly under now familiar authorities, deemed itself to be obliged to apply the Mississippi local law to determine the tort liability, if any, of a manufacturer to one not in privity of contract with him. See Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825, 827-828. The district court came to the conclusion "reluctantly" that it was bound by the Mississippi law as declared in Ford Motor Co. v. Myers, 1928, 151 Miss. 73, 117 So. 362; that the "harsh rule" of Mississippi as so declared, "contrary to the great weight of authority" elsewhere, was that a manufacturer was not liable for negligence in the manufacture of appliances which could and would become highly dangerous when put to the uses for which they are intended, where there is no privity of contract between the user and the manufacturer.

Ford Motor Co. v. Myers, supra, was the only Mississippi case relied upon, or even referred to, by the district court. In that case the Supreme Court of Mississippi, in a half-page opinion, did in fact apply what was at one time the prevailing rule, in holding that Ford Motor Company as the manufacturer of a truck owed no duty of care to a remote subvendee of the truck who was injured when the truck collapsed and plunged into a ditch because of a defect which could have been detected by reasonable inspection by the manufacturer before the vehicle left the factory.

At a time when the federal courts were applying their own notions of the federal common law of torts, under Swift v. Tyson, 1842, 16 Pet. 1, 41 U.S. 1, 10 L.Ed. 865, the court in Huset v. J. I. Case Threshing Machine Co., 8 Cir., 1903, 120 F. 865, 868, 61 L.R.A. 303, declared as a general rule that "a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles." At this late date it is hardly necessary to spend much time on the merit or justification for that supposed general rule. As was stated in 49 Harv. L.Rev. 1050 (1936), Sanborn, J, in Huset v. J. I. Case Threshing Co., supra,

"took as his starting point the supposed general principle that a manufacturer is not liable to third persons, not in privity of contract with him, for bodily injuries resulting from his negligence in manufacturing the article. He was confronted with decided cases imposing liability, in favor of third parties not in privity of contract, upon negligent manufacturers of drugs, foodstuffs, explosives, firearms. These cases he treated as falling within an exception, expressed in a conglomerate formula designed to cover them and no other: `* * * an act of negligence of a manufacturer or vendor which is eminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third parties who suffer from the negligence.\' Cardozo, J., in MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 convincingly argued that these so-called

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