Mazzi v. Greenlee Tool Co.

• Decision Date: 22 July 1963
• Docket Number: Docket 25727.,No. 195,195
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Joseph MAZZI, Plaintiff-Appellant, v. GREENLEE TOOL CO. and Greenlee Bros. & Co., Defendants-Appellees.

320 F.2d 821 (1963)

Joseph MAZZI, Plaintiff-Appellant, v. GREENLEE TOOL CO. and Greenlee Bros. & Co., Defendants-Appellees.

No. 195, Docket 25727.

United States Court of Appeals Second Circuit.

Argued January 15, 1963.

Decided July 22, 1963.

Sassower & Sassower, New York City (George Sassower, Doris L. Sassower, New York City, on the brief), for appellant.

Rudser & Fitzmaurice, New York City (William F. McNulty, David G. Fitzmaurice, New York City, of counsel), for appellees.

Before MEDINA, WATERMAN and MOORE, Circuit Judges.

LEONARD P. MOORE, Circuit Judge.

This diversity action was commenced to recover for personal injuries sustained by plaintiff as the result of an accident occurring in the course of his employment. On the date of the accident, plaintiff was employed as a machine operator by the Special Machine Co., Inc., and was operating a hydraulic "press type" machine, manufactured by the K. R. Wilson Company (hereinafter referred to as Wilson), to which was attached a cast iron pipe-bending shoe manufactured by defendant Greenlee Bros. & Co.¹ (hereinafter Greenlee). The shoe had been purchased by plaintiff's employer from George W. Warner & Co., a retail dealer in various types of pipebending equipment and before being attached to the Wilson press had been subjected to certain alterations. The operation plaintiff was performing was that of bending a four-foot-long helicopter leg to make it conform to certain specifications. In the process, the shoe broke and plaintiff was injured.

Plaintiff brought suit against the manufacturer of the shoe claiming negligence in its design and manufacture. After nine days of trial, at the close of the entire case, the trial judge directed a verdict in defendant's favor on the ground that the doctrine of MacPherson v. Buick, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 (1916), relied on by plaintiff, was inapplicable because: (1) the Greenlee shoe was designed and intended for use only on a Greenlee press and, (2) after being acquired by plaintiff's employer, the shoe had been subjected to certain structural changes so that it could be adapted for use on the Wilson press with the result that when the accident occurred the device was no longer the article that defendant had produced.

Appellant contends, first, that from the evidence adduced at trial, the jury could reasonably have found that use of the shoe on a Wilson rather than a Greenlee press played no part in the chain of causation and that, in any event, proof of a trade custom of interchangeability and other evidence indicated that such use was intended or was at least sufficiently foreseeable so that failure to warn against the danger of such usage constituted negligence on the manufacturer's part. Secondly, appellant urges that the evidence relating to alteration of the shoe presented a sharply contested issue of causation that should have been resolved by the jury. We agree and reverse for a new trial.

Intended Use

This case is controlled by the substantive law of New York, and as New York applies the doctrine of MacPherson v. Buick, supra, there can be no recovery against a manufacturer if its product was not used for the purpose and in the manner intended. Genesee County Patrons Fire Relief Ass'n v. L. Sonneborn Sons, Inc., 263 N.Y. 463, 189 N.E. 551 (1934); Noone v. Fred Perlberg, Inc., 268 App.Div. 149, 49 N.Y.S.2d 460 (1st Dep't 1944); Crist v. Art Metal Works, 230 App.Div. 114, 243 N.Y.S. 496 (1st Dep't 1930); Harper v. Remington Arms Co., 156 Misc. 53, 280 N.Y.S. 862 (Sup. Ct.1935), aff'd 248 App.Div. 713, 290 N.Y.S. 130 (1st Dep't 1936), motion for leave to appeal denied, 272 N.Y. 675, 290 N.Y.S. 130. See also Hentschel v. Baby Bathinette Corp., 215 F.2d 102 (2d Cir. 1954) (applying Michigan law); Haberly v. Reardon Co., 319 S.W.2d 859 (Mo.1958) (applying New York law); Prosser, Torts, § 84 (2d ed. 1955); Frumer & Friedman, Products Liability, § 15.01 (1960 ed.); Noel, Manufacturer's Negligence of Design or Direction for Use of a Product, 71 Yale L. J. 816, 855 (1962); Restatement, Torts, § 388 (1934).

Whether this doctrine of intended use, relied on by the court below, is applicable to the case at bar must depend on the evidence adduced at trial. If, as appellant contends, sufficient evidence was introduced to warrant a jury finding that the accident was caused by a defect in the shoe and not by its use on a Wilson press, the doctrine of intended use would not bar recovery. The same result would attach if the evidence was such that a jury could reasonably find that use on a Wilson press was intended by the manufacturer or was reasonably foreseeable and that failure to warn against the danger of such usage constituted negligence in the circumstances. See Genesee County Patrons Fire Relief Ass'n v. L. Sonneborn Sons, Inc., supra, 263 N.Y. at 468, 189 N.E. at 533, in which the New York Court of Appeals, in dealing with a similar problem, said:

"Here the manufacturer knew, or should have known, that the preparation was to be used by employees of the corporation purchaser in an enclosed structure. True it is that the correspondence referred to silos, but the water tank in which it was used was constructed of the same materials as silos but was not as large. Plaintiff\'s expert testified, however, that the same effect would be produced by its use in a silo."

See, also, Butler v. L. Sonneborn Sons, Inc., 296 F.2d 623 (2d Cir. 1961); Frumer & Friedman, Products Liability § 15.01 (1960 ed.). A somewhat detailed review of the evidence is therefore necessary.

The pipe-bending machines manufactured by both Greenlee and Wilson operate on the same mechanical principle. The pipe to be bent is laid with its ends across two supporting blocks and pressure is applied, via the shoe, to its center at which point the inner curved face of the shoe makes contact. The shoe is attached to a ram or piston and, by means of a manually operated lever, hydraulic pressure is applied until the desired bend in the pipe is achieved. Thus, the pipebending operation can be described in either of two ways; the ram, with the shoe attached, is bending the pipe in the middle or, the pressure of the blocks supporting the pipe works to bend the ends back toward the ram. The inner curved face of the shoe acts as a mold and its contours determine the shape the pipe will assume.

Despite this identity of mechanical principle, however, the machines of the two companies are quite different in design. The Wilson machine being operated by plaintiff at the time of the accident is described in the company's literature as a "60 ton Hand Operated Hydraulic Press" and performs functions other than bending pipe. It is a stationary press standing between six and one-half and seven feet tall. Because the ram of the Wilson press, which stands upright on the floor, moves vertically, the operator is required to stand in front of the press with his face about three feet away from the moving ram.

The "Greenlee Hydraulic Conduit Bender," on the other hand, is designed solely for bending pipe and is a portable press. It is much smaller than the Wilson press and while in operation lies flat on the floor with its ram moving on a horizontal plane parallel to the floor. The Greenlee machine is manufactured and sold in two models, one with a maximum piston pressure of 25 tons per square inch and the other with a maximum of 40 tons per square inch. Both models are equipped with safety valves that blow out when pressure reaches the danger point. As its name indicates, the Wilson press has a maximum pressure of sixty tons per square inch.

Defendant's chief staff engineer testified that Greenlee shoes, which come in various sizes depending on the circumference of the pipe to be bent, are not sold as single items to be used in any machine other than a Greenlee press, that they are listed in Greenlee catalogues and sales literature as accessories of the Greenlee press and that no indication is given that they are adaptable for use in other make machines. He testified further that the shoe in question was designed to bend three-inch pipe in either of the Greenlee press models which produced a maximum of forty tons pressure.

The chief engineer of plaintiff's employer testified that Greenlee shoes were attached to the Greenlee and Wilson presses in the same manner and that the shoe is subjected to the same pressure whether attached to a Wilson or Greenlee press. He also testified that it was the custom in the trade to buy the shoes independently of the machines,² and that when so purchased no instructions concerning their use or limitation were provided. The assistant foreman of plaintiff's employer testified that it was common practice to "adapt one shoe from one press to another press," and that no alterations to the shoe were necessary to attach it to the Wilson press.

The president of George W. Warner, Inc., the retailer which sold the shoe to plaintiff's employer, testified that at the time of the accident Greenlee shoes were customarily sold as separate units and when sold no inquiry was made by the retailer as to their prospective use. He testified further that the shoes were not packaged individually, that no literature accompanied them, and that the name Greenlee was not inscribed on the shoe.

This evidence, and the evidence relating to the cause of the accident to be summarized infra, was sufficient...