Foley v. Pittsburgh-Des Moines Co., 1123

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtMR. JUSTICE HORACE STERN
Citation363 Pa. 1,68 A.2d 517
PartiesFoley, Executrix, Appellant, v. The Pittsburgh-Des Moines Company et al
Decision Date26 September 1949
Docket Number1123

68 A.2d 517

363 Pa. 1

Foley, Executrix, Appellant,
v.

The Pittsburgh-Des Moines Company et al

No. 1123

Supreme Court of Pennsylvania

September 26, 1949


Argued April 20, 1949 [68 A.2d 518]

Appeal, No. 83, March T., 1949, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1946, No. 638, in case of Florence V. Foley, Executrix, Estate of Michael J. Foley, Deceased, v. The Pittsburgh-Des Moines Company et al. Judgment reversed, reargument refused October 17, 1949.

Trespass for wrongful death. Before THOMPSON, J. Verdict for plaintiff in the sum of $50,000; judgment n.o.v. entered for defendant. Plaintiff appealed.

Order

The judgment is reversed, and the record is remitted to the court below with direction to reinstate and act upon defendants' motion for a new trial.

Ella Graubart, with her Richard B. Tucker, Jr., and Patterson, Crawford, Arensberg & Dunn, for appellant.

Carl E. Glock, with him James R. Orr, John W. Wishart, Harold E. McCamey, Dickie, Robinson & McCamey and Reed, Smith, Shaw & McClay, for appellees.

James D. Porter, Clifford R. Procter and Roger D. McIntyre, submitted a brief for A. O. Smith Corporation, amicus curiae.

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

OPINION [68 A.2d 519]

[363 Pa. 5] MR. JUSTICE HORACE STERN

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 [363 Pa. 6] 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 gas machinery equipment, for the erection of a liquefaction, storage and regasification plant at the East Ohio Gas Company's No. 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 [363 Pa. 7] 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 on a vertical, cylindrical design with a toro-segmental bottom; they advised the East Ohio Gas Company that they were confident 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 high a diameter of 70 feet; the inner shell was built of 3 1/2% nickel steel, the outer of ordinary [363 Pa. 8] 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 No. 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 No. 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 eye-witnesses 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 [363 Pa. 9] 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. Heller , 302 Pa. 279, 153 A. 346; Dickinson, Administratrix, v. Jones, 309 Pa. 256, 163 A. 516; Mackey v. Robertson , 328 Pa. 504, 195 A. 870; Sudol v. Gorga , 346 Pa. 463, 31 A.2d 119. It is that law which prescribes the...

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3 practice notes
  • Garvey v. Dickinson College, No. CV-88-1924.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • April 11, 1991
    ...within the two years preceding the November 23, 1988 filing date. Her authority for this argument is Foley v. Pittsburgh Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1950). Case law which tolls the statute of limitations to allow a plaintiff to recover for a continuing course of conduct does not......
  • Sarne v. Baltimore & Ohio Railroad Co., 7917
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 24, 1952
    ...62, 14 A.2d 842. There is no question of superseding cause here: See Foley, Executrix, v. The Pittsburgh-Des Moines Company et al., 363 Pa. 1, 28, 68 A.2d 517. We therefore cannot acquiesce in the grant of a new trial as to Raymond but the case must be remanded for entry of judgment on the ......
  • Ostrowski v. Crawford Door Sales Co. of Scranton, Pa.
    • United States
    • Superior Court of Pennsylvania
    • March 24, 1966
    ...the door had been affixed to Casket's building does not preclude this section's applicability. Foley v. Pittsburgh Des Moines Co. et al., 363 Pa. 1, 68 A.2d 517...
3 cases
  • Garvey v. Dickinson College, No. CV-88-1924.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • April 11, 1991
    ...within the two years preceding the November 23, 1988 filing date. Her authority for this argument is Foley v. Pittsburgh Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1950). Case law which tolls the statute of limitations to allow a plaintiff to recover for a continuing course of conduct does not......
  • Sarne v. Baltimore & Ohio Railroad Co., 7917
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 24, 1952
    ...62, 14 A.2d 842. There is no question of superseding cause here: See Foley, Executrix, v. The Pittsburgh-Des Moines Company et al., 363 Pa. 1, 28, 68 A.2d 517. We therefore cannot acquiesce in the grant of a new trial as to Raymond but the case must be remanded for entry of judgment on the ......
  • Ostrowski v. Crawford Door Sales Co. of Scranton, Pa.
    • United States
    • Superior Court of Pennsylvania
    • March 24, 1966
    ...the door had been affixed to Casket's building does not preclude this section's applicability. Foley v. Pittsburgh Des Moines Co. et al., 363 Pa. 1, 68 A.2d 517...

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