262 F.2d 310 (2nd Cir. 1958), 42, Booth Steamship Co. v. Meier & Oelhaf Co.
|Docket Nº:||42, 25104.|
|Citation:||262 F.2d 310|
|Party Name:||BOOTH STEAMSHIP CO., Ltd., Defendant and Third Party Plaintiff-Appellant, v. MEIER & OELHAF CO., Third Party Defendant-Appellee.|
|Case Date:||December 29, 1958|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Nov. 10, 1958.
William P. Kain, Jr., New York City (J. Ward O'Neill and Haight, Gardner, Poor & Havens, New York City, on the brief), for plaintiff-appellant.
Joseph Arthur Cohen, New York City (Sidney A. Schwartz and Alexander, Ash & Schwartz, New York City, on the brief), for defendant-appellee.
Before HINCKS, LUMBARD and MOORE, Circuit Judges.
LUMBARD, Circuit Judge.
Appellant, Booth Steamship Co., seeks reversal of Judge Dimock's dismissal of its third party complaint against appellee Meier & Oelhaf Co., machinists, in which it claimed indemnity from whatever sum might be awarded against it in the main action on behalf of the plaintiff, an employee of Meier & Oelhaf, for injuries he sustained while engaged in engine repair work aboard appellant's vessel,
the Dominic. The judgment in the main action is not contested here. The primary issues presented for decision are (1) whether the oral agreement between Booth and Meier gave rise to an implied warranty by Meier that the work to be done would be done safely, and (2) whether if such a warranty is implied, liability under it was incurred to Booth when equipment supplied by Meier broke without Meier's fault causing the injury for which plaintiff recovered from Booth. We answer both questions in the affirmative, and we therefore remand the third party action for trial on the contested issue of the terms of the agreement. There can be no question as to jurisdiction on the third party action as Booth is an English corporation and Meier is a New York Corporation.
The undisputed facts are as follows. Pursuant to an unwritten agreement between them, Meier undertook to overhaul the engines on Booth's vessel, the Dominic. One of the first steps in the execution of the work was the extraction of tight fitting cylinder liners from the engine block, and this was undertaken by means of extracting equipment consisting essentially of a rigid bar, or strongback, which was attached to the liner, and a jack, which was used to raise the liner by raising the strongback. Because the lifting arm of the jack was relatively short it was necessary periodically to suspend the strongback holding the liner from a wire strap while the jack itself was lifted up. It was while the strongback was so suspended that the strap parted, allowing the strongback to fall and sever the thumb of the plaintiff, who was engaged in elevating the jack itself for further lifting.
Although the parties did dispute the question of which of them supplied or was responsible to supply the defective strap, the district court found the resolution of the issue irrelevant to the liabilities involved, and instructed the jury not to consider the question. The record reveals, however, that there was sufficient evidence on this issue for it to be sent to the jury if it was in fact relevant to the action.
From the record it appears, and both parties agree, that the plaintiff's injury was not the result of negligence of any...
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