Penn v. Inferno Mfg. Corp.

• Decision Date: 17 April 1967
• Docket Number: No. 6946,6946
• Citation: 199 So.2d 210
• Parties: John J. PENN v. INFERNO MANUFACTURING CORPORATION et al.
• Court: Court of Appeal of Louisiana — District of US

Page 210

199 So.2d 210

John J. PENN v. INFERNO MANUFACTURING CORPORATION et al.

No. 6946.

Court of Appeal of Louisiana, First Circuit.

April 17, 1967.

Dissenting Opinion April 17, 1967.

Rehearing Denied May 29, 1967.

Carl J. Schumacher, Jr., of Lemle & Kelleher, Peter H. Beer, of Montgomery, Barnett, Brown & Read, New Orleans, for appellant.

John L. Lanier, of Pugh, Lanier & Pugh, Thibodaux, for appellees.

Before LOTTINGER, REID and SARTAIN, JJ.

LOTTINGER, Judge.

This case involves a personal injury claim wherein the plaintiff, Mr. John J. Penn, of Houma, Louisiana, was injured as a result of an explosion of a sight glass which was installed on a fluid level gauge of a high pressure separator unit which was being used to test an oil well in Lafourche Parish on June 9, 1962. Mr. Penn was the major stockholder and manager of Testers, Inc., a corporation engaged in the oil field well testing business.

In the early part of June, 1963, the plaintiff, Mr. Penn, retained counsel and on June 7, 1963, suit was filed for Mr. Penn's personal injuries against Inferno Manufacturing Corporation, Republic Supply Company and Joe Teuton, dba Teuton Specialty Company. Believing that Inferno Manufacturing Corporation manufactured the gauge sight glass, it was alleged that Inferno Manufacturing Corporation negligently manufactured the sight glass and that Inferno warranted that the sight glass was free from defects. Plaintiff's suit further alleged that Inferno sold the sight glass to Republic and that Republic warranted to the plaintiff that the sight glass was free from defects and alternatively that Republic negligently sold a defective glass to Mr. Penn. In the further alternative, it was alleged that Joe Teuton, dba Teuton Specialty Company, sold the glass to Mr. Penn, warranting that it was free from defects and alternatively that Teuton negligently sold a defective glass to Mr. Penn.

After suit was filed, Inferno Manufacturing Corporation filed an answer and third party petition and in it alleged that it did not in fact manufacture the sight glass which was involved in the accident but that said sight glass was manufactured by Corning Glass Works of Corning, New York, for them. Corning Glass Works is insured by Insurance Company of North America. Corning Glass Works, however, was never served, but their insurer, Insurance Company of North America was served and made an appearance.

In due course, various interrogatories were propounded by Insurance Company of North America to Inferno Manufacturing Corporation, and these interrogatories were answered by Inferno Manufacturing Corporation who stated that they acquired all of their sight glasses from Corning Glass Works. Thereafter, on March 17, 1965, plaintiff filed a supplemental and amending petition alleging that Inferno Manufacturing Corporaton and/or Corning Glass Works manufactured the glass and prayed for judgment In solido against these defendants along with Republic Supply Company and Joe Teuton, dba Teuton Specialty Company and against Corning and Insurance Company of North America. Corning was never served and thus never became a party to the suit.

The case was tried on the merits and consumed four days of trial. After the case was submitted and briefs filed by all parties except Insurance Company of North America, then, for the first time, INA filed an exception of prescription. Supplemental briefs were filed on the exception of prescription and after the filing of these supplemental briefs, the Trial Judge rendered judgment in favor of plaintiff, Mr. John J. Penn, for $322,041.85, and against INA and Inferno, jointly and in solido, and further gave judgment in favor of Inferno on its third party demand which it had brought against INA for indemnity. Judgment was rendered in favor of defendants', Republic Supply company and Joe Teuton, dba Teuton Specialty Company, dismissing plaintiff's suit against them.

Appeals have been taken by INA and by Inferno Manufacturing Corporation. No appeals have been taken from the judgment in favor of Joe Teuton, dba Teuton Specialty Company and Republic Supply Company. Plaintiff and appellee, John J. Penn, however, has answered the appeals of Inferno and INA and asked that the judgment be increased from the sum of $322,041.85 to the sum of $350,784.22, together with interest from date of judicial demand and for all costs.

Defendants set forth the following specifications of error:

I. The trial court erred in failing to sustain appellant's plea of prescription.

II. The trial court erred in holding that the gauge glass was defective.

III. The trial court erred in holding that the explosion was caused by a defective gauge glass.

IV. The trial court erred in holding that the plaintiff's injuries and entire physical condition were caused by the explosion.

V. The trial court erred in awarding the plaintiff the excessive sum of $322,041.85.

1. PRESCRIPTION

On the plea of prescription, counsel for plaintiff has furnished us with a splendid statement and research of the law and for that reason we adopt same as our own.

"As previously pointed out, it was only after the case had been completed, briefs ordered by the Court and briefs filed by all parties with the exception of INA that INA sought, for the first time, to raise the question of prescription. It should be noted in the supplemental and amending petition filed herein by plaintiff that the plaintiff, Mr. Penn, amended his original petition by praying for judgment In solido against INA, Inferno and the other defendants. It is well settled under Louisiana Law that prescription against a tortfeasor who is not used within the year is Interrupted when this tortfeasor is liable jointly and in solido with a tortfeasor who has been timely sued. There is no question, certainly, but that suit was timely filed against Inferno, and the first and basic issue presented as to the question of prescription is whether or not Inferno and INA are joint tortfeasors. The Trial Judge found that Inferno and INA were joint tortfeasors. Appellant, INA, now argues that appellee is 'grabbing at interruption-of-prescription straws' because of the argument that Inferno is a joint tortfeasor along with INA, because Inferno labeled the product as its own and held itself out to be the manufacturer of the sight glass. Appellant, INA, contends 'There was never an allegation of such a holding out, and the record is bare of any evidence that Inferno in fact ever held itself out as the manufacturer.'

We particularly wish to point out to the Court that at the time suit was filed, petitioner believed the sight glass which was the subject of the suit to be manufactured by Inferno Manufacturing Corporation. The sight glasses themselves, which are introduced into evidence bear markings identifying them as being manufactured by Inferno Manufacturing Corporation, and it was not until after filing the suit and answers were filed and interrogatories answered that there was any indication at all that the glass was made by Corning Glass Works (who is insured by Insurance Company of North America). In addition, Insurance Company of North America (on behalf of Corning Glass Works) denied having manufactured the glass and seriously contested the question of manufacturing the glass on the trial of the case and tried to establish that the glass which had been sold to Mr. Penn had been manufactured by some foreign source. It appears that after the fact became apparent that the glass which was involved in the explosion was manufactured by Corning that Insurance Company of North America decided to come in and file an exception of prescription in an attempt to avoid liability.

First let us examine what evidence the record contains indicating that Inferno held itself out as the manufacturer of the sight glass or glasses which are the subject of this case. First of all, there are the remaining sight glasses which had been purchased by the plaintiff, Mr. John Penn, which have been identified in evidence as Exhibits 'P--2' and 'P--20'. These sight glasses which were introduced in evidence were, of course, not the one which exploded and seriously injured Mr. Penn, but they have been idntified in Mr. Penn's (Penn's) deposition as being the remaining sight glasses which Mr. Penn acquired from Republic Supply Company during the month of February, 1962. An examination of these sight glasses, Exhibits 'P--2' and 'P--20', show that they bear markings on one side thereof of 'Inferno Special Alkaline' and on the other side thereof 'Shreveport, La. U.S.A. Patent 3--25--24'. We also ask the Court to look at part of Exhibit 'P--2' which is the box containing one of the sight glasses. On the box is a label which says 'Inferno Company, Shreveport 90, La.' If this is not holding out by Inferno and labeling by them that they are the manufacturer of the product, then what is?

There is further evidence that Inferno held itself out as the manufacturer of the sight glasses. We call the Court's attention to the invoices filed in evidence as Exhibit 'P--10' and 'P--11' wherein Mr. Penn was billed for the purchase of certain sight glasses. Exhibit 'P--10' shows that in December of 1959, Testers, Inc. (Mr. Penn's company) acquired two S--14 Special Alkaline Glasses for Inferno Special Type reflex gauge. Exhibit 'P--11' is an invoice of Republic Supply Company bearing No. 38319 which shows an order dated February 19th of 1962 by Mr. Penn for four S--4 reflex gauge glasses with gaskets for an Inferno Liquid Gauge.

It should be noted that nowhere on either the sight glasses, the label on the box, or any of the invoices or orders for sight glasses is there any indication that they were manufactured by anyone other than Inferno. We submit the record clearly indicates that Inferno most certainly did hold itself out as the manufacturer of this product.

We submit that it is a fundamental rule of law that knowledge of the defective qualities in a...