Marsh Wood Prods. Co. v. Babcock & Wilcox Co.

• Decision Date: 12 January 1932
• Citation: 240 N.W. 392,207 Wis. 209
• Court: Wisconsin Supreme Court
• Parties: MARSH WOOD PRODUCTS CO. v. BABCOCK & WILCOX CO. ET AL., AND THREE OTHER CASES.

207 Wis. 209

240 N.W. 392

MARSH WOOD PRODUCTS CO.

v.BABCOCK & WILCOX CO. ET AL., AND THREE OTHER CASES.^a1

Supreme Court of Wisconsin.

Jan. 12, 1932.

Appeal from four judgments of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Circuit Judge.

Actions by the Marsh Wood Products Company, Stefan Budny, the Zurich General Accident & Liability Company and another, and Harry J. Manol, respectively, against the Babcock & Wilcox Company and another. Judgments for plaintiffs, and defendants appeal.--[By Editorial Staff.]

Reversed and remanded, with directions.

ROSENBERRY, C. J., dissenting.

The four actions, which were tried together, were commenced on June 14, 1928, and judgment was entered on March 13, 1931, in favor of the General Storage Company in the amount of $3,006.19 and costs; in favor of Stefan Budny for $1,200 and costs; in favor of the Zurich General Accident & Liability Company and Victor Kakolius in the sum of $15,000 damages and costs; and in favor of Harry J. Manol in the sum of $1,000 damages and costs.

The cause of action of the Marsh Wood Products Company, prosecuted by the General Storage Company as sole stockholder, was based upon two causes of action: First, breach of warranty in connection with the sale of a boiler tube which ruptured; and, second, negligence in the manufacture of this tube. The other three actions are for personal injuries, and are based upon the negligence of the Babcock & Wilcox Company in the manufacture of the boiler tube which ruptured.

The tube company sold to the Marsh Wood Products Company, 343 boiler tubes, 99 of which were used to retube the small boiler, and 244 to retube the large boiler in the plant of the Marsh Company at Milwaukee. The smaller boiler was retubed first, and the work was completed on September 2, 1926; the boiler being put into operation on September 20, 1926. On September 28, 1926, the tube exploded under pressure of eighty pounds of steam.

The case was tried before the court and a jury, and a special verdict returned. In the first question of the special verdict, the jury found that the tube that ruptured was so defective by reason of inclusions or impurities in the steel as to render it imminently dangerous to life and limb when used in a boiler with an allowable working pressure of 150 pounds. In the second question, the jury found the rupture of the tube to be due to the defect found in question one. In question three the jury found that the tube company, in the exercise of ordinary care, should have known that the tube was imminently dangerous to life and limb, when used in a boiler under the allowable working pressure. In question four, it was found that the tube company was negligent with respect to the manufacture and inspection of the tube. In questions five and six, this negligence was found to have proximately caused the injuries to the plaintiffs Budny, Kakolius, and Manol. In question seven, it was found that the tube company was negligent in failing to make a microscopic examination of the tube in question. Questions eight and nine found this negligence to be the proximate cause of the injuries to the plaintiffs Budny, Kakolius, and Manol. Question ten found that the defendant tube company was negligent in its conduct of the hydrostatic inspection of the tube. Questions eleven and twelve found this negligence to be a cause of the injuries to plaintiffs Budny, Kakolius, and Manol. In question thirteen, the jury found that the tubes in question were not reasonably fit for use in a boiler having a maximum allowable working pressure of 150 pounds. Question fourteen found that the unfitness of the tube was a cause of the rupture. Question fifteen found that no negligence on the part of the plaintiff Budny contributed to produce his injury; and questions sixteen to nineteen, inclusive, assessed the damages of the parties. Judgment was entered upon the verdict, and defendants appeal.

Such further facts as are necessary to an understanding of the controversy will be stated in the opinion.Miller, Mack & Fairchild, of Milwaukee (Lindabury, Depue & Faulks, of Newark, N. J., of counsel), for appellants.

Gold & McCann, of Milwaukee (Morris Karon, of Milwaukee, of counsel), for respondents.

WICKHEM, J.

The principal contentions of the defendants are as follows: First, that there is no evidence of negligence on the part of the tube company in the manufacture of the tubes sold to the Marsh Company; second, that, assuming such negligence to have been established, there is no evidence that it was the proximate cause of the injuries to plaintiffs; third, that there is no evidence to support the finding of the jury that the tube was defective; fourth, that the rule that a manufacturer who fails to exercise ordinary care to ascertain the safety of an article sold is liable for injuries proximately resulting therefrom, is inapplicable to a manufacturer of boiler tubes, which are tested by the purchaser after being installed; and, fifth, that there is no basis for the claim by the Marsh Company of a breach of warranty.

[1] The evidence in this case is voluminous and difficult to summarize within the limits of an opinion. The plaintiffs, in order to sustain their contention that the tube was defective and that the process of manufacture was negligent, relied principally upon the testimony of Richard S. McCaffery, professor of metallurgy at the University of Wisconsin. Professor McCaffery testified that he prepared samples of the tube for microscopic examination. The purpose of such an examination is to discover the texture and structure of the steel, and thereby to ascertain its soundness and homogeneity. In the specimens examined by Professor McCaffery, which were taken close to the point of rupture, he found a large number of inclusions, impurities, slag, etc., which, in his judgment, rendered the steel unsound. He also examined portions of the steel taken from points further from the rupture, and found impurities and inclusions in smaller amounts. He condemned all of the specimens which he examined as unfit for the manufacture of boiler tubes, and expressed his opinion that such a tube, considering the frequency of the inclusions, would constitute a menace to life and limb, and that it was imminently dangerous. He also gave it as his opinion that the defects were the cause of the rupture, and denied that the steel showed any evidence of having been overheated in the process of operating the boiler. From this testimony, we think the jury would be entitled to conclude that the tube was defective due to the quality of the steel at the point of rupture, and that the defective steel at this point made the tube imminently dangerous to life and limb, and was the cause of the rupture; hence it is our conclusion that there is evidence to sustain the jury's finding to questions one and two.

The more difficult question to determine is whether there is evidence that the defendant tube company was guilty of negligence in failing to discover the defective character of this tube, and whether such negligence was the proximate cause of the injuries to plaintiffs. Plaintiffs rely on four distinct items of alleged negligence.

[2] The contention of the plaintiffs that there is evidence of negligence in the selection of the steel from which the tube was made is not sustained by the evidence. It is undisputed that the steel from which the tubes were made was either nonpenalty steel or miscellaneous steel, or both. Miscellaneous steel is steel received in the form of billets which are not of uniform length. Nonpenalty steel is purchased with the understanding that, if it does not stand the test required, it shall be returned in its entirety to the steel manufacturer. There is no evidence that either type of steel is of inferior quality.

[3] The next contention is that there is evidence to sustain a finding of negligence on the part of the defendant tube company in not having an inspector at the steel plant for the purpose of inspecting steel purchased for tubes. It is extremely doubtful whether any such custom was established to the point of making it a jury question. Assuming, however, that it was so established, it is clear that there is no causal connection between the failure to have such a representative and the injuries to plaintiffs. Since the experts of the plaintiffs positively testified that only by a microscopic examination could the particular defects of this steel be discovered, it is evident that the presence of an inspector or representative would serve no purpose unless he instituted such a test; and the expert testimony is to the effect that these tests should be conducted at various stages of the process of tube manufacture, rather than at the plant of the steel producer.

[4] It is also the contention of the plaintiffs that there is evidence from which the jury could find a failure to make a proper hydrostatic test of the tubes at the plant of the defendant tube company. The hydrostatic test is a water pressure test. The tube to be tested is put into a machine, filled with water, and subjected to a pressure of 1,000 pounds. This pressure is indicated by a gauge attached to the machine. The workman who conducted these tests was on the stand and testified to the process of hydrostatic inspection. He did not speak English very well, and his testimony is consequently not as satisfactory as could be desired. He stated on direct examination that he put the tube into the machine, filled it with water, then shut off the water and put on the pressure. He stated that he left the machine on for a couple of seconds, and, if the tube leaked, he put a chalk mark on it. It is the contention of the plaintiffs that his testimony shows that he could not read or write; that he worked on a piecework basis, tested the tubes for only a second, and took only a couple of seconds to make the complete test of the tube. This is not a fair comment...