Bertone v. Turco Products

• Decision Date: 04 March 1958
• Docket Number: No. 12312.,12312.
• Citation: Bertone v. Turco Products, 252 F.2d 726 (3rd Cir. 1958)
• Parties: Giuseppe BERTONE, Plaintiff, v. TURCO PRODUCTS, Inc., a Corporation of the State of California, Defendant and Third-Party Plaintiff-Appellant (FLYING TIGER LINE, Inc., a Corporation of the State of Delaware, Third-Party Defendant-Appellee).
• Court: U.S. Court of Appeals — Third Circuit

252 F.2d 726 (1958)

Giuseppe BERTONE, Plaintiff, v.TURCO PRODUCTS, Inc., a Corporation of the State of California, Defendant and Third-Party Plaintiff-Appellant (FLYING TIGER LINE, Inc., a Corporation of the State of Delaware, Third-Party Defendant-Appellee).

No. 12312.

United States Court of Appeals Third Circuit.

Argued January 6, 1958.

Decided March 4, 1958.

Philip M. Lustbader, Newark, N. J.(Schneider, Lustbader & Morgan and George H. Harbaugh, Newark, N. J., on the brief), for appellant.

Harry A. Margolis, Newark, N. J.(Max L. Rosenstein, Newark, N. J., on the brief), for appellee.

Before MARIS, McLAUGHLIN and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Giuseppe Bertone was a recent immigrant to this country, able to speak or understand only very little of the English language.It would seem that he could read no language.He was employed by Flying Tiger Line, Inc. and on February 23 or 24, 1953, in the course of that employment he was put to work cleaning some aircraft engine parts.To this end he was given a solution called "Paint-Gon" to be used in dissolving the foreign substances deposited on the aircraft engine parts during their operation.Paint-Gon has dangerous properties and consequently should not be permitted to touch the person, nor should its fumes be inhaled for very long.The dangerous qualities probably are a necessary concomitant of the product which will adequately perform the cleaning job.The containers in which Paint-Gon is made available apparently bear a label warning of the danger.Recommended procedure in using the product indicates that it be applied in a well-ventilated space with tools permitting use of the substance without direct contact therewith.The extent of the instructions Bertone received from his employer, the extent of his comprehension of whatever instructions were given, and the type of tools and working space he was assigned do not appear from the pleadings.At any rate it does appear that Bertone was injured by exposure to Paint-Gon.Subsequently he recovered a judgment in excess of $10,000 under the New Jersey Workmen's Compensation statute.¹

Bertone thereafter filed this action against Turco Products, Inc., a California corporation and manufacturer of Paint-Gon, on a theory of negligence in failing to warn purchasers and prospective users of the dangerous characteristics of the product and of the precautions required for its use.Turco by answer set up defenses denying negligence, asserting contributory negligence, assumption of risk, and supervening negligence by a third party.Thereafter it brought in Flying Tiger by filing a third party complaint asserting a right to indemnity on the ground that Flying Tiger had not adequately instructed Bertone of the dangers in using Paint-Gon, even though Flying Tiger had been apprised thereof, and consequently Bertone's injury was a result not of Turco's negligence, but of Flying Tiger's.Flying Tiger answered denying liability to Turco and setting up the workmen's compensation recovery as a bar to any further recovery on a cause of action arising from the same accident.Subsequently Flying Tiger moved for summary judgment of dismissal, supported by affidavit, of the third party complaint against it.The dismissal was granted, without opinion, presumably for failure to state a claim upon which relief could be granted.

The question on this appeal from the order of dismissal is whether by the law of New Jersey Turco's third party complaint makes out any possibility of proof under which Bertone could recover from Turco for which Turco would be entitled to indemnification by Flying Tiger.

The situation presents four possibilities of legal consequence: (1) neither Flying Tiger nor Turco was negligent as to Bertone, (2) Flying Tiger was negligent while Turco was not, (3) Turco was negligent whereas Flying Tiger was not, or (4) both Flying Tiger and Turco were negligent as to Bertone.

Bertone asserts he was not warned of the dangers of Paint-Gon.Turco states that its warning to prospective users was adequate.If Turco's warning was adequate, there could be no recovery from Turco by Bertone irrespective of whether or not Flying Tiger may have acted negligently as to Bertone.This would dispose of the first two possibilities of legal consequence; Bertone could not recover from Turco for negligence by Flying Tiger in failing to pass on to Bertone the manufacturer's adequate warning when Flying Tiger assigned Bertone to the task requiring the use of Paint-Gon.It is well nigh inconceivable that Bertone, under the disability of illiteracy would have found his own way, without some explicit guidance, to the use of Paint-Gon.The supplier of the material to be used for the supplier's business purposes is under a duty to pass along the manufacturer's warning if he knew of it.Restatement, Torts, § 391.Accord, Tulpom v. Cantor, 87 N.J.L. 213, 93 A. 573(E. & A.1915);Ramsey v. Raritan Copper Works, 78 N.J.L. 474, 74 A. 437(E. & A.1909);Cf.Restatement, Torts, § 324, Comment b. In that sort of situation it is clear that only Flying Tiger would have been negligent.Thus if Turco exercised reasonable care to inform users of Paint-Gon of that product's dangers, Bertone cannot recover from Turco; a fortiori there would be no call for indemnity of Turco by Flying Tiger.

But if the warning given by Turco to prospective users of Paint-Gon was not adequate, then Turco is liable in negligence to persons in that class injured by use of the product.Assuming that the proofs could demonstrate negligence by Turco and none by Flying Tiger, indemnity could be required of Flying Tiger only if Flying Tiger had contracted expressly or implicitly to undertake such indemnification.SeeYearicks v. City of Wildwood, 23 N.J.Super. 379, 92 A.2d 873(1952).The pleadings, however, do not present the possibility of that type of contract.

The only possible legal relationship between the three parties which remains unexplored, then, is that both Turco and Flying Tiger acted negligently as to Bertone.Two theories of indemnity of Turco by Flying Tiger would seem to be possible there.The first of these is that if the warning given by Turco to prospective users of Paint-Gon was not calculated reasonably to afford notice of the danger, but that additional warning meeting the requirements of adequacy was supplied to Flying Tiger by Turco, Flying Tiger could have come under a duty to Turco as well as to the prospective user to pass the additional information on to whomever Flying Tiger exposed to the product as the actual user.And if that were the fact then it is very possible that Turco itself could assert against Bertone the defense of the Workmen's Compensation recovery by reason of its being in privity with Flying Tiger.Cf.Jacowicz v. Delaware, L. & W. R. Co., 87 N.J.L. 273, 92 A. 946(E. & A.1915...