United States Radiator Corporation v. Henderson

• Decision Date: 20 December 1933
• Docket Number: No. 879.,879.
• Citation: 68 F.2d 87
• Parties: UNITED STATES RADIATOR CORPORATION v. HENDERSON et al.
• Court: U.S. Court of Appeals — Tenth Circuit

68 F.2d 87 (1933)

UNITED STATES RADIATOR CORPORATION v. HENDERSON et al.^*

No. 879.

Circuit Court of Appeals, Tenth Circuit.

December 20, 1933.

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George L. Nye, of Denver, Colo. (Clyde C. Dawson, Jr., and Pershing, Nye, Bosworth & Dick, all of Denver, Colo., of counsel), for appellant.

G. Dexter Blount, of Denver, Colo. (Harry S. Silverstein and David Rosner, both of Denver, Colo., on the brief), for appellees.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

LEWIS, Circuit Judge (after stating the facts as above).

The case was submitted to the jury on the issue, whether the fire that consumed plaintiffs' house and furnishings — "was due to the negligence of the defendant in that the boiler in question, which the defendant manufactured and put upon the market * * * was negligently and carelessly designed or manufactured in one particular only, in that the smoke hood was not securely fastened to the top of the boiler."

The jury was further instructed: "You must further find that the act of the defendant in adopting this particular design was an act itself which was imminently dangerous to the property of those for whose use the boiler was designed and constructed. Otherwise your verdict must be for the defendant." The jury was further instructed that the mere fact that danger might possibly result was insufficient to make the manufacturer liable for injuries, and it must appear that injury would probably result; that if it was caused by the installation or operation of the boiler, or that those two factors contributed directly to the fire which destroyed plaintiffs' property, the finding should be for defendant; that the jury could not find for plaintiffs unless they had proven by a preponderance of the evidence that the direct and proximate cause of the fire was the blowing off of the hood and thereby setting the house on fire.

At the close of all the evidence the defendant moved for a directed verdict, and assigns error in its refusal. In support of this assignment attention is first called to the fact that the furnace was not sold to Henderson, hence there was no contractual relation between the parties; that no distinction can be drawn between a manufacturer of furnaces and a manufacturer of threshing machines; that a threshing machine under the classification set out in Huset v. J. I. Case Threshing Mach. Co. (C. C. A.) 120 F. 865, 61 L. R. A. 303, where the injury was to a third person, was placed in the third exception stated in the opinion in that case, in which exception actual knowledge of the imminence of danger to life and limb is a requisite element; and it is argued that unless the furnace can be brought under the first exception in the Huset Case, which does not require proof of knowledge of imminent danger, that appellant is not liable. The Huset Case was cited with approval and in part at least relied upon in Hruska v. Parke, Davis & Co. (C. C. A.) 6 F.(2d) 536, and Lynch v. International Harvester Co. (C. C. A.) 60 F.(2d) 223. It is impliedly, if not expressly, conceded however by counsel that where the article involved is inherently and imminently dangerous actual knowledge on the part of the manufacturer of the danger need not be proven. Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N. E. 474, 491: "Proof, however, of actual knowledge is not required where the article is so made up as to be inherently harmful. The manufacturer who puts or causes the component parts to be put together, or accepts them as his own after they are assembled, must be presumed to know the nature and quality of the resultant compound which he solicits the public to purchase." But we answer the contention with the opinion in MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440, which has been so widely followed in both state and Federal courts, wherein false labels on poisons (included in the first exception to the Huset Case), a defective scaffold for workmen, a defective coffee urn, and a defective automobile wheel are included in the same class relative to the question of knowledge.

Cases that follow MacPherson v. Buick Motor Co., supra, in that respect, involving various and widely different fabrications, are: Johnson v. Cadillac Motor Co. (C. C. A.) 261 F. 878, 8 A. L. R. 1023; Employers' Liability Assur. Corp., Ltd., v. Columbus McKinnon Chain Co. (D. C.) 13 F.(2d) 128; Goullon v. Ford Motor Co. (C. C. A.) 44 F. (2d) 310; Clark v. Standard Sanitary Mfg. Co., 149 A. 828, 8 N. J. Misc. 284; Smith v. Peerless Glass Co., 259 N. Y. 292, 181 N. E. 576; Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N. W. 855, 60 A. L. R. 357; Heckel v. Ford Motor Co., 101 N. J. Law, 385, 128 A. 242, 39 A. L. R. 989; Barabe v. Duhrkop Oven Co., 231 Mass. 466, 121 N. E. 415; Van Winkle v. American Steam-Boiler Co., 52 N. J. Law, 240, 19 A. 472; Farley v. Edward E. Tower Co., 271 Mass. 230, 171 N. E. 639, 86 A. L. R. 941; Marsh Wood Products Co. v. Babcock & Wilcox Co., 207 Wis. 209, 240 N. W. 392; Coakley v. Prentiss-Wabers Stove Co., 182 Wis. 94, 195 N. W. 388. Some of the cases cited were prior to the MacPherson Case. All of them go upon the principle that "the manufacturer of an appliance, that will become highly dangerous when put to the use for which it is designed and intended because of defects in its manufacture, owe to the public a duty, irrespective of any contractual relation, to use reasonable care in the manufacture of such appliances."

Obviously, a heating plant in a dwelling is an instrumentality imminently dangerous to life and property, if not made and operated with appropriate care; and there is proof in support of the verdict that appellant was guilty of negligence, as charged, in designing and making the smoke hood without means of attaching it to the dome so it would not be displaced by explosions, thus causing release of flame under and in proximity to the ceiling. There is no proof of negligent operation. There is evidence that other manufacturers placed a smoke hood on top of their furnaces, but what they did was evidentiary only and not controlling on the subject of negligence. Chicago, Great Western Ry. Co. v. M'Donough (C. C. A.) 161 F. 657; Texas & Pac. R. Co. v. Behymer, 189 U. S. 468, 23 S. Ct. 622, 47 L. Ed. 905; American Coal Co. v. De Wese (C. C. A.) 30 F.(2d) 349; Parker v. Cushman (C. C. A.) 195 F. 715. Besides, it appears that the American Radiator Company securely fastened its smoke hood to the top of the dome for several years prior to this fire.

Other claimed errors are assigned and argued, but in the light of the whole record they seem to us to be without merit.

Affirmed.

PHILLIPS, Circuit Judge (dissenting).

The general rule is that a constructor, manufacturer, or vendor of an article is not liable to third persons, with whom he has no contractual relations, for negligence in the construction, manufacture, or sale of such article. Huset v. J. I. Case Thresh. M. Co. (C. C. A. 8) 120 F. 865, 867, 61 L. R. A. 303; Employers' Liability Assur. Corp. v. Columbus McKinnon Chain Co. (D. C. N. Y.) 13 F.(2d) 128. This is because ordinarily he owes no duty to such third persons, and there is no actionable negligence where there has been no breach of duty. Northern Pac. R. Co. v. Adams, 192 U. S. 440, 450, 24 S. Ct. 408, 48 L. Ed. 513; Fallon v. United Railroads of San Francisco, 28 Cal. App. 60, 151 P. 290, 293; Hartnett v. Boston Store of Chicago, 265 Ill. 331, 106 N. E. 837, 839, L. R. A. 1915C, 460; Gibson v. Kansas City Pack. Box Co., 85 Kan. 346, 116 P. 502, 503, Ann. Cas. 1912D, 1103; Smith v. Clark, 125 Okl. 18, 256 P. 36, 38.

But such a duty may arise from other than contractual relations. The constructor, manufacturer, or vendor of an article which is inherently and imminently dangerous, or which though not imminently dangerous in itself becomes so if not designed, constructed or manufactured with due care, when applied to its intended use in the usual and customary manner, owes a duty to the public to exercise ordinary care commensurate with the danger, in the designing, constructing, and manufacturing of such article. Goullon v. Ford Motor Co. (C. C. A. 6) 44 F.(2d) 310; Payton's Adm'r v. Childers' Elec. Co., 228 Ky. 44, 14 S.W.(2d) 208; MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.(2d) 122; Coca-Cola Bottling Works v. Shelton, 214 Ky. 118, 282 S. W. 778; Keep v. National Tube Co. (C. C. N. J.) 154 F. 121.

Some authorities hold that the seller or vendor must have actual knowledge of such defect or danger. Huset v. J. I. Case Thresh. M. Co., supra; Laudeman v. Russell & Co., 46 Ind. App. 32, 91 N. E. 822; Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N. E. 482; Tipton v. Barnard & Leas Mfg. Co., 302 Mo. 162, 257 S. W. 791; Bates v. Batey & Co., Ltd., 3 K. B. 351. See, also, Krahn v. J. L. Owens Co., 125 Minn. 33, 145 N. W. 626, 51 L. R. A. (N. S.) 650.

Others, especially where the defect is latent and there is a duty of inspection, hold that knowledge may be implied where ordinary care in inspection would have disclosed the defect. Heckel v. Ford Motor Co., 101 N. J. Law, 385, 128 A. 242, 39 A. L. R. 989; Coakley v. Prentiss-Wabers Stove Co., 182 Wis. 94, 195 N. W. 388; Cashwell v. Fayetteville Pepsi-Cola Bottling Works, 174 N. C. 324, 93 S. E. 901; Johnson v. Cadillac Motor Car Co. (C. C. A. 2) 261 F. 878, 8 A. L. R. 1023; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.(2d) 122.

I recognize that the rules laid down in the Huset Case have been expanded and enlarged by the later decisions, and that the principles announced in MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, 1053, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440, have received such widespread judicial approval that they may be regarded as stating the now accepted...