Moran v. Pittsburgh-Des Moines Steel Co., Civ. No. 4761.

• Decision Date: 29 July 1949
• Docket Number: Civ. No. 4761.
• Citation: 86 F. Supp. 255
• Parties: MORAN v. PITTSBURGH-DES MOINES STEEL CO. et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

86 F. Supp. 255

MORAN v. PITTSBURGH-DES MOINES STEEL CO. et al.

Civ. No. 4761.

United States District Court W. D. Pennsylvania.

July 29, 1949.

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Marvin C. Harrison, Harrison, Thomas, Spangenberg & Hull, Cleveland, Ohio, Premo J. Columbus, Pittsburgh, Pa., for plaintiff.

Harold E. McCamey, Dickie, Robinson & McCamey, Pittsburgh, Carl E. Glock, Reed, Smith, Shaw & McClay, Pittsburgh, for defendants.

GOURLEY, District Judge.

History of Litigation

This is a retrial of an action for wrongful death. Plaintiff sues as Administratrix of the Estate of her husband, Patrick J. Moran. The defendants are Pittsburgh-Des Moines Steel Company, a partnership, John E. Jackson, individually, a member of the partnership, and Pittsburgh-Des Moines Company, a corporation. The subject matter of the suit is the recovery of damages occasioned to the plaintiff by the death of her husband in a disaster which took place in the city of Cleveland, state of Ohio, on October 20, 1944.

The action is a most involved, complicated and intricate proceeding. The trial commenced on November 8, 1948 and terminated on January 5, 1949. The record is voluminous and comprises seven different volumes.

At the first trial the Court granted the defendants' motion for involuntary non-suit and dismissed the action against all the defendants. The plaintiff appealed, the Circuit Court reversed and held that sufficient evidence existed in the record to require the consideration of the jury. Moran v. Pittsburgh-Des Moines Steel Co., et al., 3 Cir., 166 F.2d 908.

Substantially the same evidence was presented by the plaintiff that was introduced at the first trial. In addition thereto, direct testimony was offered that the catastrophe or the accident was caused through negligence of the defendants. In other words, in the first trial the basis upon which the plaintiff premised her right to recover related to testimony, direct or circumstantial, from which inferences could be drawn that the defendants were negligent. In the second trial, in addition to the proof just referred to, direct testimony was offered that the accident or catastrophe was caused by the negligence of the defendants.

The jury returned a verdict in favor of all the defendants, and the matter now before the Court relates to a motion for a new trial filed on behalf of the plaintiff.

History of Instrumentality Which Caused the Disaster.

The tragic accident in which Patrick J. Moran lost his life was a poignant episode in the development of the bold and ingenious engineering for which Americans have become famous. The East Ohio Gas Company is an operating public utility engaged in the selling of natural gas for industrial and consumers' use in the city of Cleveland, state of Ohio. A problem arose in connection with meeting the demands of the company for making available an adequate supply of natural gas, and the immediate problem was the storage thereof. A plan was worked out whereby natural gas at a temperature of 250° below zero Fahrenheit becomes liquid, and the condensation in volume was so great that 600 cubic feet of the natural gas became one (1) cubic foot of the liquid gas. Arrangements were made whereby three spherical tanks were constructed, commencing in the year 1940, sufficient to hold fifty million cubic feet of the natural gas. The success of this storage venture increased the demand for gas and resulted in East Ohio Gas Company in the year 1942 to look for a further expansion of storage facilities. The new tank to be built was to have storage capacity of two of the earlier ones or sufficient to hold 100 million cubic feet of natural gas.

History of Construction of No. 4 Cylindrical Tank.

The Pittsburgh-Des Moines Company was engaged in the fabrication and design of tanks and materials. The Pittsburgh-Des Moines Steel Company secured business for the corporation and engaged in the construction of tanks and different instrumentalities that were designed and fabricated by the Pittsburgh-Des Moines Company.

The No. 4 cylindrical tank was constructed through contractual arrangements between East Ohio Gas Company and Gas Machinery Company. The Gas Machinery Company let a sub-contract to the Pittsburgh-Des Moines Steel Company for the design, construction and fabrication of the No. 4 tank. Although the contract was let by Gas Machinery Company with the defendant partnership, the defendant corporation and the individual defendant, John E. Jackson, a member of said partnership, were active and took part in one way or the other in the matters relating to the design, fabrication and construction of said tank.

East Ohio Gas Company executed the formal contracts for the construction of No. 4 tank with Gas Machinery Company since said company had certain patent rights which had to be recognized by East Ohio. Gas Machinery in turn sub-contracted with Pittsburgh-Des Moines Steel Company, the partnership defendant, for the actual design, fabrication and construction of the tank.

Due to the overlapping of the many business relations between the corporate defendant, the partnership defendant and the individual defendant, the Court left for the determination of the jury whether or not one or all of the defendants were involved in the construction of the No. 4 cylindrical tank, and if one or all of the defendants were responsible for the catastrophe which caused the death of Patrick J. Moran. That is, which one or all of the defendants, severally or jointly, engaged in the design, fabrication and construction of the No. 4 cylindrical tank, and whether or not the affairs of one or all of the defendants were so interwoven and intermingled that the acts of one became the acts of the others.

Tank No. 4 was completed in May of 1943, and after the tank was filled, the defendants were paid and left the job. All went well for nearly thirteen months when on the afternoon of October 20, 1944, No. 4 tank ruptured and gas escaped in great quantities. There was a fire, an explosion and a frightful disaster in which lives were lost and property destroyed. One of the lives was that of the plaintiff's decedent, who worked with the East Ohio Gas Company but not in the operation connected with the liquefaction and storage of gas.

Applicable Law.

Federal jurisdiction is based solely on diversity of citizenship, and the familiar situation exists in which the federal court applies state law and takes its law from the authorized decisions of the state where the action arose. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.

In diversity of citizenship cases, the federal courts, when deciding questions of conflict of laws, must follow the rules prevailing in the states in which they sit. The conflict of laws rule to be applied must, therefore, be determined by the law of Pennsylvania. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Alcaro et al. v. Jean Jordeau, Inc., 3 Cir., 138 F.2d 767; Smyth Sales v. Petroleum Heat & Power Co., 3 Cir., 128 F.2d 697; Boyle et ux. v. Ward, 3 Cir., 125 F.2d 674; Anthony P. Miller, Inc., v. Needham et al., 3 Cir., 122 F.2d 710.

In view of the foregoing, the question arises — What is the Pennsylvania rule of conflict of laws relating to recovery upon a tort claim where the facts have occurred outside of Pennsylvania?

The Pennsylvania rule is that the liability of the defendant is to be based on the place of the tort or the wrong. Boyle et ux. v. Ward, Supra.

For purposes of diversity jurisdiction, a federal court is in effect only another court of the state. The questions which, therefore, arise as to the plaintiff meeting the burden of proof required to support a right to recover was governed by the law of Ohio. Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284; Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196; Woods v. Interstate Realty Co., 69 S.Ct. 1235.

The substantive rights of the parties are determined by the law of Ohio where the tank was built and the catastrophe occurred, since under the law of conflicts the Ohio rule controls. Boyle v. Ward, supra; Alcare v. Jean Jordeau, Inc., supra; Smyth Sales v. Patroleum Heat & Power Co., supra.

Since the catastrophe occurred in Ohio, the question is one of tort law, and under the law of Pennsylvania it is necessary to look to the Ohio authorities to determine the law. Moran v. Pittsburgh-Des Moines Steel Co., et al., supra.

The Ohio courts have ruled that a manufacturer is responsible not merely to the consumer of the article, but also to a person in the vicinity of its use who is injured by the manufacturer's lack of due care. White Sewing Machine Co. v. Feisel, 28 Ohio App. 152, 162 N.E. 633; Moran v. Pittsburgh-Des Moines Steel Co., et al., supra; Gilbride v. Laffel Co., Ohio App., 47 N.E.2d 1015.

The appellate courts in Ohio have not definitely ruled on the question as to whether or not the principle of liability just enunciated would have application to a chattel attached to the real estate, and which is out of control of the party who constructed or attached the chattel. However, the Circuit Court held that if the Ohio courts were confronted with the problem, they would in accordance with the development of the law shown in its previous decisions, extend the liability of the manufacturer to negligence involved in building the structure even though that structure was affixed to another's land. Moran v. Pittsburgh-Des Moines Steel Co., et al., supra.

Many questions arose in the trial of the case as to whether the admissibility of evidence was to be governed by the law of Ohio, Pennsylvania, or the Federal Rules. Since the admissibility of evidence, in the absence of a statutory requirement or restriction, and none existed in this action, is a matter of procedure rather than...