O'NEIL v. American Radiator Co.

• Decision Date: 07 January 1942
• Citation: 43 F. Supp. 543
• Parties: O'NEIL v. AMERICAN RADIATOR CO. et al.
• Court: U.S. District Court — Southern District of New York

43 F. Supp. 543

O'NEIL v. AMERICAN RADIATOR CO. et al.

District Court, S. D. New York.

January 7, 1942.

Israel Stashin, of New York City, for plaintiff.

Sullivan & Cromwell, of New York City, (Inzer B. Wyatt, of New York City, of counsel), for defendants American Radiator Co. and American Radiator & Standard Sanitary Corporation.

BRIGHT, District Judge.

The defendants American Radiator Company and American Radiator and Standard Sanitary Corporation, individually and as successor of Excelso Products Corporation, move under Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to dismiss the complaint for failure to state a claim upon which relief can be granted, the basis of the motion being that there is no showing under MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, 1053, L.R.A.1916F, 696, Ann.Cas.1916C, 440, that a water heater was inherently dangerous and, therefore, no liability on the part of the moving defendants individually; that action would lie against the American Radiator and Standard Sanitary Corporation as successor of the Excelso Company for any negligence of the Excelso Company only after judgment had been recovered against the latter; and that the cause of action attempted to be alleged against the American Radiator and Standard Sanitary Corporation individually is barred by the three year statute of limitations.

The action is to recover for personal injuries alleged to have been sustained on July 18, 1938, through the negligence of the defendants in failing to pack an Excelso water heater in a proper and safe manner, and to warn plaintiff of its inherently dangerous nature and condition, because of which, while plaintiff was handling the heater, it rolled within its crate and crushed his fingers. It is further alleged that the heater was sold by the defendants to one of their customers, who delivered it to the employers of plaintiff, for whom he worked as a steamfitter's helper. The brief submitted in behalf of plaintiff states that the corporation for which he worked purchased the heater from the defendants' customer, that the heater was crated in a crate consisting of slats, that when the heater in its crate was delivered on the sidewalk, plaintiff and others began to move the heater into a building, at which movement the injury was sustained.

The clerk's file shows that the action was originally commenced in the New York State Court against the American Radiator Company; on April 4, 1941, by an order of the State Court, the defendant American Radiator and Standard Sanitary Corporation as successor of Excelso Products Company, was brought in as a party defendant, and a supplemental summons and amended complaint issued for that purpose. The action was removed to this court on July 10, 1941. A motion to dismiss under Rule 12 (b) was then made by the said defendants, which motion was apparently adjourned from time to time until a further amended complaint was filed on December 12, 1941, which named as defendants the American Radiator Company, American Radiator and Standard Sanitary Corporation individually and as successor of Excelso Products Corporation and Excelso Products Corporation as defendants.

We think that the contention of the moving defendants can be sustained on any one or all of the three grounds presented. The cause of action asserted against the moving defendants, allegedly manufacturers or vendors of the heater, is obviously founded upon the principle stated in the MacPherson case above cited, and kindred cases, in which it was held that a manufacturer is liable when it places upon the market for sale to and used by the general public, or a member thereof, a thing that is, because of its condition, inherently dangerous — "if to the element...