Foley v. Pittsburgh-des Moines Co.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtHORACE STERN, Justice.
Citation363 Pa. 1,68 A.2d 517
PartiesFOLEY v. PITTSBURGH-DES MOINES CO. et al.
Decision Date17 October 1949

363 Pa. 1
68 A.2d 517

FOLEY
v.
PITTSBURGH-DES MOINES CO. et al.

Supreme Court of Pennsylvania.

Sept. 26, 1949.
Rehearing Denied Oct. 17, 1949.


68 A.2d 518

COPYRIGHT MATERIAL OMITTED.

Florence V. Foley, executrix of the estate of Michael J. Foley, deceased, sued the Pittsburgh-Des Moines Company, a corporation, the Pittsburgh-Des Moines Steel Company, a partnership, and the partners, to recover under the wrongful death statutes of Ohio for the death of the deceased who was fatally burned when a tank which had been built and installed by defendants, collapsed and allowed escape of liquified natural gas which ignited.

The Court of Common Pleas of Allegheny County, A. Marshall Thompson, J., granted the motion of the named defendants and one of the partners for judgment notwithstanding verdict for plaintiff for $50,000, but denied their motion for new trial, and the plaintiff appealed.

The Supreme Court, Horace Stern, J., reversed, decided a conflict of laws question, ruled on charges of negligence and held that the granting of the motion for judgment notwithstanding the verdict was error because the case was one requiring submission to jury.

68 A.2d 519

Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON STEARNE and JONES, Jj.

Ella Graubart, Richard B. Tucker, Jr., Patterson, Crawford, Arensberg & Dunn, Pittsburgh, for appellant.

Carl E. Glock, James R. Orr, John W. Wishart, Reed, Smith, Shaw & McClay, Pittsburgh (Harold E. McCamey, Dickie, Robinson & McCamey, Pittsburgh, of counsel), for appellees.

James D. Porter, Clifford R. Procter, Roger D. McIntyre, Milwaukee, Wis., for amici curiae.-A. O. Smith Corporation.

HORACE STERN, Justice.

This action arises out of a grave disaster which took place in the City of Cleveland, Ohio, on October 20, 1944. Leakages occurred in a tank of the East Ohio Gas Company containing liquefied natural gas of a temperature of between 250 and 260 degrees below zero Fahrenheit; the tank collapsed, the liquid gas flowed out in all directions and became ignited, with the result that over a hundred persons lost their lives and some 231 separate suits for damages have been brought in Ohio and Pennsylvania, both in State and Federal courts, against the present and other defendants, most of them by widows of employes of the East Ohio Gas Company who were burned to death in the tragedy. Among the victims was Michael J. Foley, and the present action was instituted by his widow, Florence V. Foley, executrix of his estate, under the so-called Wrongful Death Statutes of the State of Ohio, for the benefit of herself and their three minor children, against Pittsburgh-Des Moines Company and Pittsburgh-Des Moines Steel Company,

68 A.2d 520

the manufacturers and installers of the tank, alleging negligence on their part in its design and construction and in the selection of the materials of which it was built. Plaintiff recovered a verdict in the Court of Common Pleas of Allegheny County of $50,000; the court en banc overruled a motion of defendants for a new trial but granted their motion for judgment n. o. v. Plaintiff now appeals from that decision.

The East Ohio Gas Company is a public utility distributing natural gas for industrial and domestic purposes in the City of Cleveland. Its problem was to acquire facilities for the storage of gas in sufficient quantity to meet the peak demand for it in the winter months. There was an experimental plant in West Virginia which liquefied natural gas under a patented process by which ammonia was cooled by water, ethylene by the ammonia, and the raw gas by the ethylene; the advantage of such liquefaction was that 600 cubic feet of the gas could be reduced to one cubic foot of liquid and therefore be stored in one-six hundredth of the space; as and when needed it could be regasified for distribution and use. At this plant there had been built a small storage tank, cylindrical in shape, consisting of two shells, one within the other, with cork insulation between, operating somewhat on the principle of a thermos bottle. In 1940 the East Ohio Gas Company entered into a contract with the Gas Machinery Company, a Cleveland concern which owned the liquefaction patents and was engaged in the manufacture and installation of a gas machinery equipment, for the erection of a liquefaction, storage and regasification plant at the East Ohio Gas Company's #2 works located on a ten acre tract in an industrial section of the City of Cleveland. The Gas Machinery Company sublet different parts of the project, giving a contract for the erection of three storage tanks to the Pittsburgh-Des Moines Steel Company, the defendant partnership, which had been engaged for many years in the business of building tanks and other large works of steel fabrication. As this was the first time an attempt was being made to store liquid gas on such a large scale for commercial use the Pittsburgh-Des Moines Steel Company consulted with one H. C. Cooper, who had designed the West Virginia plant and who will be referred to more at length hereafter, and, as a result of a combination of his ideas with theirs, they had the tanks built, spherical in form, by the Pittsburgh-Des Moines Company, the defendant corporation, which, as will subsequently appear, was an entity identical, for all practical purposes, with their own partnership.

After these three tanks had been erected, put into operation and found to be satisfactory, it was discovered by the East Ohio Gas Company in 1942 that additional storage capacity was needed to take care of the city's requirements. Accordingly it entered into negotiations with defendants for the construction of a fourth tank which could store 100,000,000 cubic feet of natural gas,-twice the amount of each of the spherical tanks. Defendants offered to build such a tank based either on the model of the three former ones or no a vertical, cylindrical design with a toro-segmental bottom; they advised the East Ohio Gas Company that they were confiident a cylindrical, toro-segmental-bottom tank would prove just as satisfactory as the spherical tanks and that it should be preferred because of a saving in cost. The East Ohio Gas Company thereupon entered into a contract with the Gas Machinery Company for such a tank and the latter in turn sub-contracted its construction to defendants. It was fabricated at Neville Island, Pittsburgh, by the defendant corporation and erected under the supervision of the construction engineer of the defendant partnership. Its outer shell was 51 feet high with a diameter of 76 feet, its inner shell 43 feet high with a diameter of 70 feet; the inner shell was built of 3 1/2% nickel steel, the outer of ordinary carbon steel. Finding it difficult to obtain cork, which had been used as the insulating material between the inner and outer shells of the three spherical tanks, defendants employed rock wool for that purpose. After the tank was erected it was subjected to certain tests; later a crack developed which was repaired, and the tank was finally

68 A.2d 521

ready for operation in September, 1943; from time to time some defects appeared and certain additional repairs and installations were made.

The day before the accident three of the tanks, including #4, had been filled to their normal capacity for the anticipated winter demands, the remaining tank was being similarly filled, and the employes of the East Ohio Gas Company were starting to close down the liquefaction operation; this was a more or less routine procedure, consisting of withdrawing from the system the ethylene and ammonia, shutting down the engines, and stopping the flow of gas. According to plaintiff's testimony everything was proceeding smoothly throughout the plant. At about 2:40 o'clock in the afternoon of October 20th a witness in a building across an open field suddenly saw the #4 tank burst and liquid squirt out from it, apparently under pressure, at a point about ten feet above the retaining dike which had been constructed around its base. At first there were two streams that thus emerged, later there were seven or eight of them, and then the entire mass of the tank seemed to give way. There was testimony to the effect that no noise of any kind was heard, other testimony that there was a distant rumbling, while one person said there was a sound as of falling steel. Several eyewitnesses testified that they saw streams of liquid coming out of breaks in the lower half of the tank and that the entire tank apparently collapsed after being enveloped in a cloud of vapor which instantly ignited. Fire spread over the entire area, the destruction of surrounding property was enormous, and the great loss of life that ensued has already been mentioned.

The problem in the case now presented is whether defendants were factually responsible, and, if so, legally liable, to plaintiff for the consequences of this accident. Its solution requires consideration of several subordinate questions: (1) By the law of what State is defendants' liability to be determined? (2) Was the evidence sufficient to establish negligence on the part of defendants? (3) Was the evidence sufficient to warrant a conclusion that such negligence was the cause of the accident? (4) Was defendants' negligence superseded by any independent, intervening cause? (5) If the accident was the result of defendants' negligence are they legally responsible therefor to this plaintiff? (6) Does liability extend to all of the defendants in this action? (7) Is plaintiff's right of recovery barred by the Statute of Limitations?

We proceed to consider these questions in the order named.

1. By the law of what State is defendants' liability to be determined?

To this question there can be but one answer,-an answer as to which all parties are in accord. The law of the place where the injury was sustained-the lex loci delicti-determines whether a right of action exists. Restatement, Conflict of Laws, §§ 378, 383, 391; Rosenzweig, Administratrix v....

To continue reading

Request your trial
76 practice notes
  • Resolution Trust Corp. v. Farmer, Civ. A. No. 92-3310.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 16, 1994
    ...Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18, 20 (3d Cir.1966) (citing Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1949); Bell v. Brady, 346 Pa. 666, 31 A.2d 547 (1943); In re Shaffer's Estate, 228 Pa. 36, 76 A. 716 (1910)). The RTC argues that t......
  • Schipper v. Levitt & Sons, Inc., No. A--44
    • United States
    • United States State Supreme Court (New Jersey)
    • February 19, 1965
    ...policy considerations which led to MacPherson and its implementations are equally applicable here. See Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517, 533 (Sup.Ct.1949); Dow v. Holly Manufacturing Company, 49 Cal.2d 720, 321 P.2d 736 (Sup.Ct.1958); Fisher v. Simon, 15 Wis.2d 207......
  • Harford Mut. Ins. Co. v. Moorhead
    • United States
    • Superior Court of Pennsylvania
    • July 25, 1990
    ...282 (1961) (same); Dunn v. Atlantic Refining Company, 391 Pa. 65, 69, 137 A.2d 262, 264 (1958) (same); Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 29-38, 68 A.2d 517, 529-32 (1949) (citing §§ 388, 394, and 395 and collecting authorities); Scurfield v. Federal Laboratories, 335 Pa. 145, 1......
  • McDonough v. Whalen
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 24, 1974
    ...44 N.J. 70, 81--88, 207 A.2d 314 (1965); Totten v. Gruzen, 52 N.J. 202, 207--210, 245 A.2d 1 (1968); Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 34, 68 A.2d 517 (1949); Fisher v. Simon, 15 Wis.2d 207, 211--219, 112 N.W.2d 705 (1961); Restatement 2d: Torts §§ 385, 394--398, 403--404 (1965......
  • Request a trial to view additional results
76 cases
  • Resolution Trust Corp. v. Farmer, Civ. A. No. 92-3310.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 16, 1994
    ...Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18, 20 (3d Cir.1966) (citing Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1949); Bell v. Brady, 346 Pa. 666, 31 A.2d 547 (1943); In re Shaffer's Estate, 228 Pa. 36, 76 A. 716 (1910)). The RTC argues that t......
  • Schipper v. Levitt & Sons, Inc., No. A--44
    • United States
    • United States State Supreme Court (New Jersey)
    • February 19, 1965
    ...policy considerations which led to MacPherson and its implementations are equally applicable here. See Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517, 533 (Sup.Ct.1949); Dow v. Holly Manufacturing Company, 49 Cal.2d 720, 321 P.2d 736 (Sup.Ct.1958); Fisher v. Simon, 15 Wis.2d 207......
  • Harford Mut. Ins. Co. v. Moorhead
    • United States
    • Superior Court of Pennsylvania
    • July 25, 1990
    ...282 (1961) (same); Dunn v. Atlantic Refining Company, 391 Pa. 65, 69, 137 A.2d 262, 264 (1958) (same); Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 29-38, 68 A.2d 517, 529-32 (1949) (citing §§ 388, 394, and 395 and collecting authorities); Scurfield v. Federal Laboratories, 335 Pa. 145, 1......
  • McDonough v. Whalen
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 24, 1974
    ...44 N.J. 70, 81--88, 207 A.2d 314 (1965); Totten v. Gruzen, 52 N.J. 202, 207--210, 245 A.2d 1 (1968); Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 34, 68 A.2d 517 (1949); Fisher v. Simon, 15 Wis.2d 207, 211--219, 112 N.W.2d 705 (1961); Restatement 2d: Torts §§ 385, 394--398, 403--404 (1965......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT