Gorman v. Murphy Diesel Co.

• Decision Date: 12 November 1942
• Citation: 29 A.2d 145,42 Del. 149
• Court: Delaware Superior Court
• Parties: FRANK GORMAN v. MURPHY DIESEL COMPANY, a corporation of the State of Delaware: PHILIP NOLAN v. MURPHY DIESEL COMPANY, a corporation of the State of Delaware

29 A.2d 145

42 Del. 149

FRANK GORMAN v. MURPHY DIESEL COMPANY, a corporation of the State of Delaware: PHILIP NOLAN v. MURPHY DIESEL COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

November 12, 1942

Superior Court for New Castle County, September Term, 1942.

Demurrers to declarations.

No cause of action is disclosed and the demurrer is sustained.

James R. Morford for the plaintiffs.

E Ennalls Berl for the defendant.

LAYTON C. J., RODNEY and TERRY, J. J., sitting.

OPINION

LAYTON, Chief Justice:

These are general demurrers to declarations alleging substantially the same facts. It is alleged that the defendant was the manufacturer of internal combustion engines, commonly known as Diesel engines or motors; that such engines are imminently dangerous in that they operate through the explosion of vapors and gases produced by oil, which explosions if not controlled and confined by proper cylinders, pistons and other appliances will endanger the life and safety of persons in the vicinity of such engine; that the plaintiff was an employee of George A. Fuller Company and Merritt, Chapman & Scott, Inc., as an oiler on a Crawler Drag Line Crane, the motive power of which consisted of a Diesel engine manufactured and sold by the defendant, and was in the performance of his duties at a Naval Air Base in the State of Rhode Island; that Northwest Engineering Company had manufactured the crane, and on July 1, 1939, purchased the engine from the defendant to serve as the source of motive power thereof; that the crane and engine had been acquired by American Concrete & Steel Pipe Company from Northwest Engineering Company on July 31, 1939; that the crane and engine had been acquired by George A. Fuller Company from American Concrete and Steel Pipe Company on July 23, 1940; that at the time the engine was sold and delivered by the defendant to Northwest Engineering Company the defendant knew or should have known that the engine was imminently and foreseeably dangerous to the life and limb of those operating it or in close proximity thereto while it was in operation in that it "contained certain hidden and concealed structural and mechanical defects, the exact nature and character are to the plaintiff unknown but which defects were such that upon the use of said Diesel engine there was imminent and foreseeable danger that the explosions of the fuel thereof would not be confined and controlled but that such engine * * * would explode and injure persons working near said engine * * *"; that the defendant concealed said imminently and foreseeably dangerous condition from the respective purchasers; that on November 2, 1940, the plaintiff was engaged in his duties as oiler of the crane, and was required to be in close proximity to the engine; that the plaintiff was in the exercise of due care and caution and was without knowledge or means of acquiring knowledge of the dangerous and defective condition of the engine; that the engine by reason of its defective and dangerous condition, "without any negligence on the part of any other person or persons entering therein as a part of the efficient cause thereof," and without warning to the plaintiff, exploded with great force and violence; that the plaintiff was injured as a result of the explosion.

One contention of the defendant may be disposed of briefly. It contends that, as the injury resulting from its alleged negligence was sustained entirely in Rhode Island, the law of that State is applicable. That is the general rule; but unless it is shown expressly that a different law applies, the Court is entitled to assume that the case will be governed by the laws of the forum. 11 Am. Jur. 314. Furthermore, there is nothing in the cases cited by the defendant to suggest a conflict of opinion between the courts of Rhode Island and this Court with respect to the applicable principles of law.

The plaintiffs say in their brief that they base their causes of action, in large part, on the legal principles and factual analogies of Huset v. J. I. Case Threshing Machine Co., (8 Cir.) 120 F. 865, 61 L.R.A. 303, plus the doctrine of implied knowledge as established by the later cases.

The general rule, as stated in the cited case, is 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. What is called the third exception to the rule is stated to be that one who sells or delivers an article which he knows to be imminently dangerous to life or limb of another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not. The exception, entitled perhaps to stand as a rule in itself, is based on the broad ground that the manufacturer of an article, though not inherently dangerous but which may become so when put to its intended use, owes a duty to the public to employ reasonable care, skill and diligence in its manufacture. If a machine negligently constructed is reasonably certain to imperil life or limb, it is a thing of danger; and where the manufacturer knows that the machine will be used, and without new tests, by persons other than the purchaser, a duty is imposed on him to use due care in its construction. As in negligence generally, liability is based on a reasonable foreseeability of danger; and knowledge of probable, not possible, danger is an essential element of the liability. MacPherson v. Buick Motor Car Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas 1916C, 440. It has been said that the MacPherson case lays down a rule which can be easily abused. Dillingham v. Chevrolet Motor Co., (D. C.) 17 F.Supp. 615. There has been much diversity of opinion among eminent judges with respect to the decisions, the criticism being directed more, perhaps, to the application of the principles than to the soundness of the principles themselves. One instance will serve as an illustration. In Johnson v. Cadillac Motor Car Co., due to defective spokes as in the MacPherson case, the plaintiff was injured as a result of the collapsing of a wheel of an automobile manufactured by the defendant but purchased from a dealer. The wheels had been supplied to the defendant by a reputable manufacturer, and were painted with a priming coat when delivered. Judge Ray was of opinion that the defendant, in the performance of its general duty of inspection, was not obliged to scrape the paint from thousands of wheels and tens of thousands of spokes in an effort to discover the quality of the wood used. C. C., 194 F. 497. In the Circuit Court of Appeals, (2 Cir.) 221 F. 801...