Alexander v. Inland Steel Company, 16035.

Citation263 F.2d 314
Decision Date31 December 1958
Docket NumberNo. 16035.,16035.
PartiesGeorge ALEXANDER, Appellant, v. INLAND STEEL COMPANY, a Corporation, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Jack G. Beamer, Kansas City, Mo. (McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, Mo., on the brief), for appellant.

Harry P. Thomson, Jr., Kansas City, Mo. (John R. Caslavka, Shughart & Thomson, Kansas City, Mo., on the brief), for appellee.

Before JOHNSEN, VOGEL and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

In this personal injury case plaintiff-appellant appeals from the action taken by the trial court at the close of plaintiff's evidence when defendant's motion for directed verdict was sustained and judgment rendered against plaintiff. Diversity and amount involved give us jurisdiction.

In accordance with our Rule 10(f), United States Courts of Appeals Rules, 8 Cir., 28 U.S.C.A., the record is presented to us in the form of a statement of facts, agreed to by the parties and duly approved by the trial court. Since one of the crucial issues is necessarily focused upon the sufficiency of the evidence to require submission of the case to the jury, we indulge in an exhaustive review of the pertinent facts.

On January 28, 1957, when plaintiff received the injuries for which he seeks recovery in damages, he was employed by the Western Fireproofing Company (for sake of brevity called "Western"), and was working as a member of a gypsum roofing gang in constructing a roof on a school building in Belpre, Kansas. Plaintiff's employer specialized in fabricating poured gypsum roof decks. This process required the spacing and spot welding into place of steel sub-purlins,1 to support form boards, and pouring liquid gypsum over the form boards and encasing the sub-purlins. The bulb tees used in the Belpre, Kansas, job were ordered by Western directly from defendant-appellee in the fall of 1956. They were shipped by carrier selected by defendant from the latter's yards in Chicago, Illinois, to Hutchinson, Kansas, and from there were taken by plaintiff's employer to Belpre, Kansas. Four employees of Western testified that the sub-purlins for the Belpre roof appeared new, painted, and unused, and that they could see no defects in any of the pieces.

The bulb tees ordered for the Belpre job were in two lengths: 12 feet, 11½ inches and 13 feet, 6 inches; were 1.78 inches high, 1.90 inches wide at the base and 9/64 inch thick through the base and stem. The bulb at the tip of the stem was 7/16 inch high and ½ inch wide. They were rolled from high carbon steel obtained from used railroad rails, and were so described in defendant's advertising.

The president of Western, a graduate engineer, testified that he had been using these bulb tees in his work for about ten years, that they had been purchased from defendant, that he knew they were made of high carbon steel, that he was not a metallurgist or a welding expert, but was sure that the bulb tees would have all the characteristics of high carbon steel, that he had no previous knowledge of bulb tees breaking or shearing, that it was the customary and regular practice to stagger the welds, that he had no knowledge that bulb tees made of high carbon steel were particularly susceptible to breaking or cracking if welded by an electric are welder during temperatures below 32° F.

When work began on the roof deck of the Belpre school on January 21, 1957, the heavy 24-inch trusses and 10-inch I beams were in place. To the I beams, Western employees welded the bulb tees on 32-inch centers, each bulb tee being supported by three I beams and spot welded to these beams at each end of the bulb tee and in the middle. Although the superintendent of the Western crew on the job testified that the specification for the job called for the welds to be staggered, they were not always staggered from one side to the other. It was customary for workmen to walk upon the bulb tees; in fact, after the form boards were placed, only the bulb and a part of the stem were visible and workmen had no choice but to walk upon the bulb tees.

Tommie Ince, another Western employee who did all of the welding on the Belpre job, had been engaged in that trade for eight months to a year. He had received no formal training, had learned to weld by watching others, had received no specific instructions from his foreman as to how the welding should be done on the Belpre job, and had not seen any specifications by the manufacturer with respect to welding. Ince used an electric arc welder and usually made a ¼ to ½ inch spot weld between the flange of the bulb tee and the supporting I beam.

On January 28, 1957, the gypsum had been poured on one-half of the roof, and the men, including plaintiff, were laying form boards between the spaced and welded bulb tees on the unpoured half of the roof. Plaintiff had placed a load of form boards and while walking on the T bars diagonally across and up the roof toward the cone, a T bar upon which he had placed his weight (of 159 pounds) broke in the middle in the vicinity of the supporting I beam, causing plaintiff, the two pieces of the broken T bar and several pieces of form board which had been placed in the area, to fall approximately twenty-two feet to the concrete floor below, thereby injuring plaintiff.

The exact date that the particular bulb tee which broke was welded into place is not known; consequently, the temperature reading when the welding took place is likewise not revealed. The record does disclose the high and low temperature of each day between January 21, when work commenced and January 27, 1957, when plaintiff was injured. See footnote 9, infra.

In addition to the foregoing, which establishes some background as well as the circumstances immediately surrounding the occurrence, there was expert testimony dealing with the characteristics of high carbon steel and its reaction to welding, which will receive added attention in the further course of our opinion.

During a pre-trial conference the trial court informed counsel for plaintiff that the cause would not be tried or submitted on the theory of implied warranty because the petition disclosed there was no privity of contract between plaintiff and defendant. Plaintiff now makes the assignment that the court committed error in so ruling.

The legal problems and solutions stemming from the warranty-privity question in today's modern market of consumer products, with nation-wide advertising aimed at the ultimate consumer, indicate a trend toward relaxation of the privity requirement as to certain products. Briefly stated, it is possible to trace this progression first, through the gradual disappearance of the element of privity in negligence actions, first limited to negligence "imminently dangerous to the life and health of mankind" as to products which were inherently dangerous, "intended to preserve, destroy, or affect human life,"2 thence to the "MacPherson doctrine," whereby liability might attach when any negligently made product "is reasonably certain to place life and limb in peril when negligently made."3 Liability has been further extended in recent years to include such seemingly innocuous products as a chair, bed, cigarette, coffee urn, and even a hair comb.4 The "MacPherson doctrine" has recently been extended by a Missouri Court so as to enable a party not in privity with defendant repairman to recover property damages proximately caused by defective repair of a third party's vehicle. Central & Southern Truck Lines, Inc. v. Westfall GMC Truck, Inc., Mo.App., 317 S.W.2d 841. Compare Standard Conveyor Co. v. Scott, 8 Cir., 221 F.2d 460, 463, certiorari denied 350 U.S. 830, 76 S.Ct. 62, 100 L.Ed. 741, where this court, applying Missouri law, held that the evidence failed to show that a belt-conveyor system was "inherently or imminently dangerous," so as to come within the exception relaxing the privity requirement.

As to the element of privity in actions on "warranties," exceptions generally have been limited to food and beverage products, with isolated cases involving soap, cosmetics and other such personal items. Much has been written and no purpose would be served by an extensive review of the cases throughout the United States. For an excellent survey, see selection of papers read at the Meeting of the Torts Round Table, Assn. of American Law Schools, December, 1956, 24 Tenn L.R. 923-1018, and especially, Noel, "Manufacturers of Products — The Drift Toward Strict Liability," beginning at page 963. See also Prosser on Torts § 84, at p. 510; 77 C.J.S. Sales § 305(b); Note, "Effect of Advertising on the Manufacturer's Liability," 22 Wash.U.L.Q. 406; and James, "Products Liability," 34 Tex.L.R. 44.5

More specifically directed to the situation here, in Kansas and Missouri privity is an element essential to recovery in an action for breach of a claimed warranty of the type of product here involved.

Under Kansas law, plaintiff relies heavily on Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887, in which it was held that a child of the purchaser would not be barred on privity grounds in an action to recover damages for injuries caused by a bursting bottle. Although the parties here disagree as to the import of this opinion — whether it was an actual "food and beverage" exception or an extension of similar liability as to containers of same,6 we find a comprehensive review of the law today in Kansas on implied warranties and privity requirements set out in Graham v. Bottenfield's, Inc., 1954, 176 Kan. 68, 269 P.2d 413. There, the Supreme Court of Kansas was concerned with a determination of whether a customer of a beauty shop could state a cause of action on implied warranty of fitness of the hair dye which caused her injury, against the distributor of same. While holding that plaintiff would not be barred by absence of privity, where, as in the Nichols case, "the source of the obligation (implied...

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