Reed & Barton Corporation v. Maas, 2914.

• Decision Date: 10 November 1934
• Docket Number: No. 2914.,2914.
• Parties: REED & BARTON CORPORATION v. MAAS.
• Court: U.S. Court of Appeals — First Circuit

73 F.2d 359 (1934)

REED & BARTON CORPORATION v. MAAS.

No. 2914.

Circuit Court of Appeals, First Circuit.

November 10, 1934.

Albert A. Schaefer, of Ropes, Gray, Boyden & Perkins, of Boston, Mass., for appellant.

J. Alex. Lane, of Gaston, Snow, Saltonstall & Hunt, of Boston, Mass., for appellee.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

This is an action of tort for injuries alleged to have been caused by the appellant's negligence. The appellee is a minor and brought this action in the name of her father as next friend. The minor will hereinafter be referred to as the plaintiff and the appellant as the defendant.

The plaintiff is a resident of Wisconsin, and the defendant is located in Massachusetts. The ad damnum was $25,000.

The defendant is a manufacturer of coffee urns and in 1924 sold the urn involved in this case to one Horace E. Keebler of Milwaukee, Wis., engaged in the catering business, who, in September, 1931, loaned the urn to Mrs. George Gessner of Milwaukee to be used in serving coffee at a social tea given for her daughter.

The plaintiff was invited to pour coffee, and at the time of the accident was seated at one end of a table. The coffee urn had been filled with hot coffee in the kitchen and brought and placed on the table directly in front of the plaintiff. The coffee was kept hot while being served by means of a spirit lamp of common design, which was lighted before the urn was brought into the dining room in which it was served.

The urn had been on the table about fifteen minutes and the plaintiff had served three or four guests, the last one about five minutes before the accident. Suddenly, without warning, the urn toppled over, spilling the hot coffee into the lap of the plaintiff, severely burning her hands, body, and legs.

The defendant moved for a directed verdict on the ground that the defendant owed no duty to the plaintiff and there was no substantial evidence that the plaintiff's injuries were due to the defendant's negligence. This motion was denied, but the trial court took an alternative verdict, so called. The jury awarded the plaintiff $4,000 as damages, but added, according to the customary form of alternative verdicts, that "if, as a matter of law, the plaintiff is not entitled to a verdict, then the jury find for the defendant and consent that this verdict may be entered on order of the United States District Court for the District of Massachusetts, or of the United States Circuit Court of Appeals for the First Circuit, or of the Supreme Court of the United States, with same effect as if returned by them."

Thereupon the defendant filed a motion for a new trial and also that the jury's verdict be set aside and a verdict be entered for the defendant pursuant to the alternative verdict of the jury.

The District Court denied the motion for a new trial, and by a memorandum decision denied the motion to set aside the verdict.

Exceptions were taken by the defendant to rulings by the court in its memorandum decision, and the court's refusal to direct a verdict for the defendant.

The issues raised by the defendant by its assignments of error may be considered under two heads: (1) The law governing the rights of the parties; (2) whether there was any substantial evidence warranting the jury in finding that the plaintiff's injuries were due to the negligence of the defendant.

The first issue raises the question of whether a manufacturer of an article not inherently dangerous owes any duty to a third party injured in its use, if the injuries arose from some defect in the article due to the negligence of the manufacturer.

Under the law of Massachusetts a manufacturer owes no such duty in the case of an article not inherently dangerous (Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N. E. 482; Windram Manufacturing Co. v. Boston Blacking Co., 239 Mass. 123, 131 N. E. 454, 17 A. L. R. 669); but under the laws of Wisconsin, in this case the lex loci delicti, the manufacturer of an article, though not inherently dangerous, but due to the negligence of the manufacturer it is probable that injuries will result from its proper use, is liable for any injury due to such negligence (see Bright v. Barnett & Record Co., 88 Wis. 299, 60 N. W. 418, 26 L. R. A. 524; Miller v. Mead-Morrison Co., 166 Wis. 536, 166 N. W. 315; Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N. W. 855, 60 A. L. R. 357). In the latter case the Wisconsin court expressly adopted the rule laid down in the case of MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440 (opinion by Mr. Justice Cardozo). Also see Marsh Wood Products Co. v. Babcock & Wilcox Co., 207 Wis. 209, 240 N. W. 392.

Ordinarily, the lex loci delicti governs in actions of tort. Jarrett v. Wabash Ry. Co. (C. C. A.) 57 F.(2d) 669, 671; Restatement, Conflict of Laws, § 411; Northern Pacific R. R. v. Babcock, 154 U. S. 190, 197, 14 S. Ct. 978, 38 L. Ed. 958.

We think there was no error in the District Court applying the law of Wisconsin in this case.

It is not necessary to decide whether a federal court is bound to follow the rule in the lex loci delicti, if it differs from the rule in the federal courts. The decisions, however, indicate that the rule applied in the federal courts is not contra to that in Wisconsin and New York. Huset v. J. I. Case Threshing Machine Co. (C. C. A.) 120 F. 865, 61 L. R. A. 303; Keep v. National Tube Co. (C. C.) 154 F. 121; National Pressure Cooker Co. v. Stroeter (C. C. A.) 50 F.(2d) 642, certiorari denied 284 U. S. 674, 52 S. Ct. 129, 76 L. Ed. 570; Johnson v. Cadillac Motor Co. (C. C. A.) 261 F. 878, 8 A. L. R. 1023; Employers' Liability Assur. Corporation, Limited, v. Columbus McKinnon Chain Co. (D. C.) 13 F. (2d) 128; Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 29 S. Ct. 270, 53 L. Ed. 453; Tom v. Nichols-Fifield Shoe Machinery Co. (C. C. A.) 215 F. 881.

It is urged by the defendant that National Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621, and McClaren v. United Shoe Machinery Co. (C. C. A.) 166 F. 712, indicate that a different rule from that applied in Wisconsin is held in the federal courts, but we think these cases are not in point and do not indicate that the rule usually applied in the federal courts differs materially from that in Wisconsin and New York.

The Ward Case did not involve a personal injury. In the McClaren Case above cited, the action was against the manufacturer, but under two of the counts in the plaintiff's declaration, the employer of the injured workman was alleged to have agreed to keep the machine in good working order. A third count was based on a contract of the manufacturer to keep the machine in repair. The court found there was no such promise by the manufacturer, and ordered a verdict for the defendant. In a second suit based on the agreement of the employer to keep the machine in repair, the jury awarded a verdict for the plaintiff. See McClaren v. Weber Bros. Shoe Co. (C. C. A.) 166 F. 714.

We think the District Court in the instant case correctly instructed the jury that a coffee urn, when properly constructed, was not inherently dangerous; but if by reason of a defect caused by the negligence of the manufacturer it becomes an article fraught with danger to anybody using it, the manufacturer may be held liable for the consequences of that negligence to any person using it for the purpose and in the manner it was intended to be used, though not a party to a contract with the manufacturer.

He also gave a further instruction at the request of the defendant as follows:

"An article which is normally...