McKee v. Brunswick Corporation

• Decision Date: 14 December 1965
• Docket Number: No. 14849,14852.,14849
• Parties: Ronald McKEE et al., Libelants-Appellees, v. BRUNSWICK CORPORATION and Flag-ship Boats, Inc., Respondents-Appellants. Ronald McKEE et al., Libelants-Appellees, v. MALLORY ELECTRIC CORPORATION, Respondent-Appellant. Ronald McKEE et al., Libelants-Appellees, v. Alex SEMENCHUK and Kenneth Bond, etc., Respondents-Appellants. Ronald McKEE et al., Libelants-Appellants, v. BRUNSWICK CORPORATION et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

354 F.2d 577 (1965)

Ronald McKEE et al., Libelants-Appellees, v. BRUNSWICK CORPORATION and Flag-ship Boats, Inc., Respondents-Appellants.

Ronald McKEE et al., Libelants-Appellees, v. MALLORY ELECTRIC CORPORATION, Respondent-Appellant.

Ronald McKEE et al., Libelants-Appellees, v. Alex SEMENCHUK and Kenneth Bond, etc., Respondents-Appellants.

Ronald McKEE et al., Libelants-Appellants, v. BRUNSWICK CORPORATION et al., Respondents-Appellees.

Nos. 14849, 14852.

United States Court of Appeals Seventh Circuit.

December 14, 1965.

Bernard Harrold, John W. Kearns, Jr., Chicago, Ill., Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., of counsel, for respondents-appellants, Brunswick Corporation and Flagship Boats, Inc.

L. H. Vogel, Albert F. Manion, David F. Holland, Chicago, Ill., for respondent-appellant, Mallory Electric Corporation.

Harold W. Huff, Herbert C. Loth, Jr., Robert J. Wysong, Chicago, Ill., Peterson, Lowry, Rall, Barber & Ross, Chicago, Ill., of counsel, for respondents-appellants.

C. Roy Peterson, Edward B. Hayes, Edward J. Griffin, John L. Flynn, Edward B. Hayes, Lord, Bissell & Brook, William A. Domm, Defrees, Fiske, O'Brien, Thomson & Simmons, Flynn, Galvin, Owens & Flynn, Chicago, Ill., for appellees.

Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.

KILEY, Circuit Judge.

These libels to recover for personal injuries and property damage under the admiralty jurisdiction of the district court¹ were consolidated and tried, on severed issues, by the district court without a jury, and resulted in judgments in favor of libelants. Respondents have appealed and libelants have cross-appealed. We decide the issues on appeal and cross-appeal in favor of libelants.

Libelants were injured on June 4, 1960, when an explosion occurred in the engine of the boat "Penelope," owned by libelant-Poehlmann, in the Monroe Street Harbor. They sued Semenchuk and Bond, d/b/a Bond Boat Sales (Bond), from whom Poehlmann bought the "Penelope" on March 19, 1960; Flagship Boats, Inc., and Brunswick Corporation, respondents-successors of Owens Yacht Company, designer and manufacturer of the "Penelope";² and Mallory Electric Corporation, constructor and supplier to Owens of ignition coils used in boats like "Penelope."

Judgments based on findings of negligence were entered against Brunswick, Flagship and Mallory in favor of all libelants; and against Bond on a finding of breach of warranty in favor of Poehlmann, but for Bond and against all libelants on the question of negligence. No issue is raised as to the amounts of the judgments.

The "Penelope" was delivered to Poehlmann on May 6, 1960, after being filled by Bond with forty-three gallons of gasoline. No fuel was added between this date and June 4, and nothing unusual observed in its few hours of operation.³ On June 4, Poehlmann and his guests, the other libelants, boarded the "Penelope," left the Monroe Street Harbor, and went north in Lake Michigan to Chicago Avenue where the engine was stopped for a short time. They proceeded north a way, then returned to the Harbor where the engine was again stopped. Each time the engine was started, Poehlmann removed the "hatch cover" and ran the "bilge blower" for approximately five minutes, then replaced the cover. Finally, en route to discharge the guests, after the "Penelope" had gone at slow speed for ten or twelve minutes, the explosion and fire occurred.

The district court found no contributory negligence on the part of any libelants; that the proximate cause of the explosion was the negligent construction and furnishing by Mallory of a defective coil and its negligent installation by Owens without a protective fuse and without properly testing it; and that the "Penelope" in the condition delivered was imminently and inherently dangerous while it was being used for the purpose expressed by Poehlmann to Bond. The court concluded that respondents Mallory and Flagship Boats, Inc. negligently violated their duty of ordinary care to libelants; that the negligence proximately caused libelants' injuries; that Brunswick, by virtue of its contract with Flagship, was also liable; and that while Bond had no duty to inspect and test, and was accordingly not negligent, it was liable to Poehlmann for breach of warranty.

Mallory Electric Corporation

We see no merit in Mallory's contention that the court's findings and conclusions as to the cause of the explosion and the bases of its in personam jurisdiction are deficient, under Rule 52(a) of the Federal Rules of Civil Procedure. The purpose of Rule 52(a) is to aid the reviewing court in its decision and to enable the appellant to determine whether there is a question worthy of appeal. George v. United States, 295 F.2d 310 (7th Cir. 1961).

The ultimate factual findings of the court are plainly based on the court's recital under "Findings of Fact" of the testimony of libelants' expert supported by photographic proof. Mallory claims no difficulty in determining that it has meritorious points on appeal and we have experienced no difficulty in learning from the findings and non-burdensome references to the "Appendix" the bases of the court's conclusions as to liability and jurisdiction. We consider the findings sufficiently "special" for compliance with Rule 52(a).

Mallory is a Michigan corporation having its principal place of business at Detroit. It is not authorized to do business in Illinois. It contends it was not amenable to service, process or suit within the Northern District of Illinois.

Service was first made on George Carter, Mallory's manufacturer's representative in northern Illinois. Service was also made on Mallory's president, in Detroit. Mallory's motions to quash both services, and to dismiss for lack of venue, were denied. Libelants filed two affidavits in opposition to Mallory's motions. One affidavit stated Mallory's name was listed, along with local sales representatives for its parts, in Chicago telephone directories. The second affidavit contained selective testimony from a deposition taken of Mr. Carter, wherein he testified concerning his solicitation activities on Mallory's behalf in northern Illinois. An exhibit showed Mallory sales of over $63,000 in this area for December, 1960-November, 1961. In addition, Mallory's marketing program includes the sale of its coil, as happened here, to assemblers of the final product, with full knowledge and contemplation that sales of the completed product, of which Mallory's coil is an essential component, will be solicited and made in many areas beyond Detroit.

We think it was shown that Mallory was doing business within Illinois, see Koepp v. Peters, 193 F.Supp. 296 (E. D.Wis.1961), and that the minimum contacts rule of International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed.2d 95 (1945), has been satisfied in this admiralty case. Extraterritorial federal process pursuant to a state statute authorizing extraterritorial personal service is permissible in admiralty, see Riinc, Inc. v. Peddie, 195 F.Supp. 124, 126 (E.D.Ill.1961); Koepp v. Peters, supra; Frase v. Columbia Transportation Co., 158 F.Supp. 858 (N.D.Ill.1957), and the Illinois "longarm" statute⁴ provided the justification for the service on Mallory's president. We find no error in the denial of Mallory's motions.

We are not persuaded by Mallory's argument that an abuse of expert testimony resulted from libelants' alleged use of mere opinions of experts as a substitute for proof of the cause of the explosion. Libelants' experts Blair and Babcock testified. As a basis for their opinions there was testimony of the location of the coil at the top forward part of the engine and of the carburetor near the center top, the fire in the front of the engine compartment, damage by fire about the wiring and coil, less damage at the rear of the engine and at the bottom of the engine compartment, the heavy burning of the tops — but not bottoms — of various hoses, and the charring of the firewall at the forward end of the engine compartment near the coil.

There is no evidence of contributory negligence of libelants. There is positive evidence that there was no gasoline leak or "unusual smell," and that the bilge was dry and bilge blowers operating just before the explosion, no libelant was then smoking and nothing had been dropped into the hatch, and there was then nothing "significant" about the noise of the engine. These are facts to which presumably the court's attention was called by the experts and which could be verified so as to give the necessary value to the expert testimony. Jones v. Jones, 406 Ill. 448, 450, 94 N.E.2d 314 (1950). The expert opinion was that a defect in the coil caused the explosion.

Mallory argues that libelants failed to prove the coil was defective or responsible for the explosion. The argument is not valid. Expert Blair saw the "Penelope" twice after the explosion. His observation confirmed what exhibits showed with respect to the worst fire damage at the location of the coil and resistor and the wire from them to the ignition board; copper globules caused by excess heat were on the No. 14 wire which was softened all the way to the control board, but the globules were on the wire only near the coil and resistor; and that other wires in other areas of the engine were not burned and had no copper globules on surfaces.

On the basis of his testimony, expert Blair gave an opinion that the explosion was caused by an electrical "shorting" in the wiring of the ignition circuit leading from the ignition switch to the resistorcoil unit; that the short resulted from heat of excess current in the wire being supplied to the coil, and the short resulted in melting the insulation off the wire which contacted a wire from the battery close to the coil, and the explosion and fire followed. He stated that only at the places where the wires were welded were there copper globules evidencing the electrical...