McLouth Steel Corp. v. Mesta Machine Co., Civ. A. No. 12667.

• Decision Date: 06 October 1953
• Docket Number: Civ. A. No. 12667.
• Citation: 116 F. Supp. 689
• Parties: McLOUTH STEEL CORP. v. MESTA MACHINE CO. FOSTER et al. v. HARTFORD ACC. & INDEMNITY CO. et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

116 F. Supp. 689

McLOUTH STEEL CORP. v. MESTA MACHINE CO.

FOSTER et al. v. HARTFORD ACC. & INDEMNITY CO. et al.

Civ. A. No. 12667.

United States District Court E. D. Pennsylvania.

October 6, 1953.

Rawle & Henderson, Philadelphia, Pa., for McLouth Steel Corp.

White, Williams & Scott, Philadelphia, Pa., for Mesta Machine Co.

Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Edgar A. Jonas and Frederick C. Jonas, Chicago, Ill., for J. M. Foster.

Thomas E. Comber, Jr., Philadelphia, Pa., for Hartford Acc. & Indemnity Co.

Daniel & Temin, Philadelphia, Pa., for Landis Tool Co.

KIRKPATRICK, Chief Judge.

The various conflicting claims presented to the Court in this action all arose as the result of an accident in which a roll-grinder, a large and expensive piece of machinery which McLouth had bought from Landis, the manufacturer, was badly damaged. McLouth was putting up its new plant at Trenton, Michigan, and had a contract with Mesta, one of the original defendants, under which Mesta agreed to install certain equipment, including the roll-grinder in question. Mesta subcontracted the work of installing the grinder to Foster, the other original defendant. The accident occurred while Foster's men were lifting the grinder in order to permit leveling of the base on which it had been placed. Two steel cables by which the grinder was being lifted broke, dropping it and breaking it to pieces.

McLouth sued Mesta and Foster, the former on two causes of action, breach of contract and negligence, and the latter for negligence in letting the grinder fall, and Mesta in its answer cross-claimed over against Foster on a provision of the subcontract by which Foster agreed to indemnify Mesta against liability arising out of the performance of the work.

Foster then brought in two third-party defendants, Landis and Hartford. Its claim against Landis was based upon the fact that Landis, in pursuance of a provision in its contract of sale with McLouth, had furnished an expert to work with Foster in the erection of the grinder, the allegation being that the expert was in charge and that he, and not Foster, was responsible for the accident. Foster's claim against Hartford was based on a policy of insurance against liability for damage to property, which Hartford had issued to it.

McLouth's insurance carriers, one of them a Pennsylvania corporation, have settled with it and have paid all but $590.78 of its loss, and the defendants make the point that the insurance companies and not McLouth are the real parties in interest. They contend that Rule 17(a), Fed.Rules Civ.Proc., 28 U. S.C., providing that a suit be prosecuted in the name of the real party in interest requires that this complaint be dismissed for want of diversity jurisdiction, inasmuch as Mesta is also a Pennsylvania corporation.

Although the record in Yorkshire Ins. Co. v. U. S., 3 Cir., 171 F.2d 374, presented a situation which was the converse of the present case, that decision is directly applicable. In that case the Court of Appeals held that Rule 17(a) was for the benefit of the defendant and that the right to have the real party in interest on the record as plaintiff was a right which might be waived by the defendant. In United States v. Aetna Surety Co., 338 U.S. 366, 70 S. Ct. 207, 216, 94 L.Ed. 171, the Court said that the defendant (the United States) could compel the joinder of the property owner and an insurance company which had paid part of the loss "upon timely motion". In the present case, after two years of procedural maneuvering, the defendants presented their motion four days before the day on which the case was set for trial, after all parties had prepared and witnesses had been brought from considerable distances. It is hard to see how a motion could be less timely.

Inasmuch as the previous ruling of the Court denying the defendant's motion excluded any party having common citizenship with the defendant, the jurisdictional question does not arise.

The first fact issue to be decided is whether the accident was caused by negligence and, if so, by whose.

I find, first, that Mesta was not negligent in any respect, second, that Landis' expert was not in control of the rigging operation to the extent that would make Landis liable for the accident and, third, that the accident was caused by Foster's negligence.

The slings used were part of Foster's equipment. The evidence of the plaintiff's experts was convincing to the effect that the slings had been subjected to abuse of some kind, with the result that at the time of the disastrous lift more than half of the total number of strands of steel wire in them had been cut or sheered. This condition could have resulted from several causes, including failure in the course of a number of earlier lifts to properly block the cables where they passed through holes in the machine so as to eliminate the sheering effect of sharp edges, and improper methods in straightening out kinks and bends. It is unnecessary, however, to determine just how the cables came to be weakened because, although on "casual inspection with the grease and dirt that generally accumulates on the wire it is sometimes difficult to see that damage * * * if you looked attentively at it and you knew that the wire had been subject to some severe kinking you should have seen it." Obviously Foster's men did not make an adequate inspection before using the slings for the last lift.

Combined with the use of greatly weakened cables, which could and presumably would have been rejected if they had been thoroughly inspected, was Foster's failure to select a cable of a size which would have given an adequate safety factor. The safety factor for the lift with the cables actually used was, even on the defendants' contention, very slightly over four and may have been substantially less, in view of the fact that as the machine was rigged the cables were not perpendicular but rose at an angle to the hooks from which they were suspended. I do not say that it was negligence to have a safety factor any less than eight, the figure recommended by the manufacturers of the wire rope, but one of the things which a safety factor is intended to take care of is the contingency that the cable may not be in first-class condition. The fact is that, with a cable which was very far from being in first-class condition, Foster adopted a safety factor which would have been very low for a brand new cable. The evidence is to the effect that five is the minimum for work of this sort.

The testimony of Morganthall, Landis' expert, makes it...