Arfons v. EI Du Pont De Nemours & Company

• Decision Date: 24 November 1958
• Docket Number: Docket 24989.,No. 35,35
• Citation: 261 F.2d 434
• Parties: Dale ARFONS, Plaintiff-Appellant, v. E. I. DU PONT DE NEMOURS & COMPANY, Incorporated and The Ensign-Bickford Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

261 F.2d 434 (1958)

Dale ARFONS, Plaintiff-Appellant, v. E. I. DU PONT DE NEMOURS & COMPANY, Incorporated and The Ensign-Bickford Company, Defendants-Appellees.

No. 35, Docket 24989.

United States Court of Appeals Second Circuit.

Argued October 21, 1958.

Decided November 24, 1958.

Charles N. Segal, Hartford, Conn. (Arnold B. Elkind, New York City, Irwin R. Karassik, Herbert Zelenko, New York City, on the brief), for plaintiff-appellant.

Marsh, Day & Calhoun, Bridgeport, Conn. (Peter J. Nolan, Wilmington, Del., Norman K. Parsells, David S. Maclay, Bridgeport, Conn., on the brief), for defendant-appellee duPont.

Wallace W. Brown, Hartford, Conn., for defendant-appellee Ensign-Bickford.

Before SWAN and MOORE, Circuit Judges, and KAUFMAN, District Judge.

IRVING R. KAUFMAN, District Judge.

This action, based upon alleged breaches of express and implied warranties, was brought to recover for injuries allegedly sustained by appellant when working with dynamite produced by appellee duPont and fuse produced by appellee Ensign-Bickford. It is contended that appellees warranted through advertisement and literature that the products were safe for the purposes for which they were sold when used according to instructions.¹ The amended complaint failed to allege the place of the original or subsequent sales of the explosive and fuse or the place of injury.

It is clear, however, that the ultimate resale and the injury occurred in Ohio and that there was no privity of contract between plaintiff and either defendant. It has also been agreed that duPont obtained the fuse from Ensign-Bickford which does no business outside Connecticut. The appellees moved, pursuant to Rule 12(b) (6) Fed.R.Civ.P. 28 U.S. C.A. for a dismissal of the complaint for failure to state a claim upon which relief can be granted. The court below granted the motion on the ground that it was apparent from the face of the complaint that recovery against neither appellee was possible under Ohio or Connecticut law.

It is now well established that dismissals for mere technical defects or ambiguities in pleadings are not favored. Thus, we cannot affirm the granting of this motion if under any reasonable reading, the complaint states a claim upon which relief can be granted. Nagler v. Admiral Corp., 2 Cir., 1957, 248 F.2d 319; Virgin Islands Corp. v. W. A. Taylor & Co., 2 Cir., 1953, 202 F.2d 61; Dioguardi v. Durning, 2 Cir., 1944, 139 F.2d 774.

At this juncture of the case, it is conceivable that the plaintiff may be able to establish that the Connecticut choice of law rule would require us to look to the law of Ohio in determining the liability of either or both of the defendants. See H. G. Craig & Co. v. Uncas Paper Board Co., 1926, 104 Conn. 559, 133 A. 673; McLoughlin v. Shaw, 1920, 95 Conn. 102, 111 A. 62.

Assuming that appellant can demonstrate the applicability of Ohio law we turn now to the question of whether that law would permit recovery in the absence of privity. This leads us in turn to an examination of recent far-reaching changes in the Ohio law of warranties.

In Rogers v. Toni Home Permanent Co., 1958, 167 Ohio St. 244, 147 N.E. 2d 612, decided after Judge Smith's decision below, the Supreme Court of Ohio reassessed the requirement of privity in express warranty cases. After a searching inquiry into the history of the rule and the relevant policy considerations, the privity requirement was rejected as inconsistent with the true relationships between manufacturer and consumer created by modern advertising and merchandising methods.

The rationale of the Rogers case is clear. In recent years an increasing number of manufacturers have made their principal appeal directly to the ultimate purchaser through extensive and effective advertising. We know that a given article may pass through several hands after it leaves the factory and that the...