Continental Cas. Co. v. Belknap Hardware & Mfg. Co.
| Decision Date | 03 June 1955 |
| Parties | CONTINENTAL CASUALTY COMPANY, Inc., Appellant, v. BELKNAP HARDWARE & MANUFACTURING COMPANY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Mayer, Cooper & Kiel, Stanley B. Mayer, Louisville, for appellant.
Morris & Garlove, Charles W. Morris, Louisville, for appellee.
Willie S. Clark, an employee of the Illinois Central Railroad Company, was injured while at work in Chicago, in September, 1947, when the handle broke on a cant hook which he was using. Thereafter he filed an action for damages against the Railroad in Cook County, Illinois. The Continental Casualty Company, the appellant herein, defended the action for the Railroad as its insurer. In January, 1950, the sum of $8,330 was paid to Clark pursuant to an agreed judgment. The present action was filed in the Jefferson Circuit Court in 1950 by the Continental Casualty Company, as subrogee of the Railroad, to recover that amount from the Belknap Hardware & Manufacturing Company, from whom the Railroad purchased the cant hook which Clark was using when he was injured.
After all the pleadings were filed, the appellee moved for a judgment on the pleadings. The court construed the motion as one for a summary judgment pursuant to CR 56, and entered a judgment in favor of the appellee.
In its first petition the appellant relied upon negligence and breach of an implied warranty in the sale of the cant hook. Upon being required to elect, it chose to prosecute the action on the theory that when the cant hook was sold by the appellee to the Railroad it was defective, unsafe, and imminently dangerous to human lefe and limb; that the appellee knew or by the exercise of ordinary care should have known that the cant hook was defective, unsafe and dangerous; and that Clark's injuries resulted from the dangerous and defective condition of the cant hook.
The appellee stated in its answer that the cant hook was not manufactured by it, but was purchased by it, as a jobber, from the American Logging Tool Company, of Evart, Michigan; that it had no control over the manufacture of the cant hook; and that if the hook was defective, it had no opportunity to inspect it.
In support of its motion for summary judgment, the appellee filed the affidavit of Fred Kimmel, Jr., its Director of Railroad Sales. Kimmel stated that in March, 1946, the Railroad signed and delivered to the appellee its written order for 15 cant hooks (a photostatic copy of the order was filed with the affidavit). He stated also that the specifications given by the Railroad included the direction that the cant hooks were to be shipped directly to the Railroad's agent, B. T. Adams, Paducah, Kentucky, f. o. b. Evart, Michigan; that it was well known to the Railroad's purchasing department that Evart, Michigan, was the town in which the American Logging Tool Company is located; and that, as the goods were shipped from Michigan directly to the Railroad, the appellee would have no opportunity to inspect them. He stated further that, in compliance with the directions of the Railroad, the cant hooks were shipped directly from the factory at Evart, Michigan, to the Railroad's agent in Paducah, Kentucky; the appellee did not manufacture the cant hooks and was precluded from inspecting them; the appellee did not supervise or control the manner in which the cant hooks were made, or direct the quality of wood in the handles; and the appellee did not submit any specifications except those contained in the Railroad's order to it. No counteraffidavit or response to this affidavit was filed by the appellant. However, the affidavit of Gordon Williams, head of the Department of Chemical Engineering, Speed Scientific School, University of Louisville, was filed by the appellant. Williams stated that he examined a cant hook which appeared to be reasonably new and which had been stamped by the American Logging Tool Company, of Evart, Michigan; the handle, which appeared to be of maple, bore a diagonal break across the shaft which followed the grain of the wood; normally such a handle would be made of hickory or of a straight-grained, high strength wood, of which maple may be satisfactory; the strength of a maple handle would be approximately 25 per cent less than that of a...
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