Stephenson v. Duriron Company
| Decision Date | 21 October 1968 |
| Docket Number | No. 3009.,3009. |
| Citation | 292 F. Supp. 66 |
| Parties | Charles STEPHENSON, etc., et al., Plaintiffs, v. The DURIRON COMPANY, Inc., Defendant and Third-Party Plaintiff, and Aetna Insurance Company, Third-Party Plaintiff, v. KUHNS BROTHERS COMPANY, and Hartford Accident and Indemnity Company, Third-Party Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
James C. Baggott, Dayton, Ohio, for plaintiffs Charles Stephenson and others.
P. Eugene Smith, of Marshall & Smith, Dayton, Ohio, for Duriron Co., defendant and third party plaintiff and Aetna Ins. Co., third party plaintiff.
William H. Selva, of Curtner, Selva, Parkin & Seller, Dayton, Ohio, for Kuhns Brothers Co. and Hartford Ace. and Indem. Co., third party defendants.
DECISION FINDINGS OF FACT CONCLUSIONS OF LAW JUDGMENTS
Plaintiffs in the captioned action claim damages for injury to their persons and property from an explosion of natural gas which entered their residence at the intersection of 10th and Karluk Streets in Anchorage, Alaska, on March 16, 1962, as a result of a fracture in a valve body, hereinafter referred to as "The Valve", installed in a gas distribution system located in a contiguous street, and allege in this action that the defendant, Duriron, failed to furnish Anchorage Natural Gas Corporation, the owner of the gas distribution system, hereinafter referred to as the "Utility", with a ductile iron valve meeting ASTM Specifications A395-56T but, in violation of its agreement to sell, furnished a valve meeting the specifications of cast iron and that the difference in the physical properties of the metal of The Valve, as delivered, in contrast as to the physical properties of the valve which Duriron agreed to furnish proximately contributed to cause such injury and damage.
Plaintiffs and other persons similarly injured and/or damaged in said explosion commenced actions against Duriron:
claiming damages in the total sum of Two Million, One Hundred Eighty Six Thousand, Five Hundred Dollars ($2,186,500.00) for the same injuries for the same reasons asserted in the case at bar.
The Utility commenced actions against Duriron:
seeking a judgment against Duriron that it be saved harmless and indemnified against loss resulting from the claims of the persons injured or damaged in the explosion and from expense incurred in litigation commenced by the injured persons as the result of Duriron's failure to deliver a valve meeting the specifications Duriron agreed to furnish.
The Alaska Superior Court Cases proceeded to trial commencing October 4, 1966, by the Court, a jury having been waived. The Court rendered written Findings of Fact and Conclusions of Law, adopted November 10, 1966; finding:
1. That Duriron purchased The Valve from Kuhns, under a written order that the metal thereof be ductile iron meeting ASTM Specifications A395-56T;
2. That Kuhns made The Valve of cast iron, did not make it of ductile iron, meeting ASTM Specifications A395-56T, delivered The Valve to Duriron which thereafter sold and delivered it to the Utility;
3. That Duriron did not produce the condition of the metal of which The Valve was composed, was not negligent in assembling The Valve with the other parts thereof and was unable to discover that Kuhns made The Valve of metals which failed to meet the specifications for ductile iron;
4. That Kuhns was negligent in making and pouring the valve body casting and in its testing procedures which failed to discover the departure from ASTM Specifications A395-56T, which negligence was attributed, under Alaska law, to Duriron;
5. That the fracture in The Valve, the leak of natural gas therefrom, the explosion in the residences of the injured parties and the injury and damage they suffered, were the direct and proximate result of the negligence of Kuhns in failing to furnish The Valve composed of metal meeting the specifications of Duriron, the purchaser.
On December 1, 1966, the Court rendered Judgment for all plaintiffs in the Alaska Superior Court Cases, against Duriron, in the total sum of Seven Hundred One Thousand Three Hundred Seventy Two Dollars and Nine Cents ($701,372.09), with interest at six per cent (6%) per annum, of which Judgment plaintiffs herein were awarded the following sums:
1. Charles William Stephenson $264,480.71
2. Charles William Stephenson, as father and next
friend of Cathy Stephenson, also known as Donna
C. Stephenson 302,770.38
3. Charles William Stephenson and Nancy Stephenson 6,544.95
4. Norman Bakke and Leotta Bakke 102,678.93
The judgment rendered in the Alaska Superior Court Cases is final.
Plaintiffs are seeking judgment against Duriron in this Court in conformity with the judgment rendered in the Alaska Superior Court Cases, with interest at six per cent (6%) per annum from December 1, 1966.
Plaintiffs also seek judgment in this Court, on their Supplemental Complaint against Kuhns and Hartford for the whole amount of the judgment rendered in the Alaska Superior Court Cases based on a written Agreement, dated September 15, 1966, hereinafter referred to as the "Assignment Agreement", under which Duriron and Aetna assigned a portion of their rights against Kuhns and Hartford to said plaintiffs.
Duriron and Aetna seek compensatory damages against Kuhns and Hartford, punitive damages against Hartford, a declaratory judgment and a mandatory injunction against Kuhns and Hartford with respect to the matters declared.
Reasonable minds cannot disagree on the following:
(a) International Nickel Company holds a patent on a secret process for making an alloy, known as ductile iron, meeting ASTM Specifications A395-56T, which secret process was known to Kuhns, as a licensee of International Nickel Company;
(b) At all times with which the litigation is concerned, Duriron was not licensed, by the patent owner, to make ductile iron and was not informed as to the secret process or procedures necessary to the production of ductile iron castings;
(c) Ductile iron, in order to conform to ASTM Specifications A395-56T, has the following physical or mechanical properties;
Minimum tensile strength, psi 60,000 lbs
Minimum yield strength, psi 45,000 lbs
Minimum elongation in 2" test specimen 15%
(d) Graphite (carbon) is an element which is present in both cast iron and ductile iron. Graphite is in flake or acicular form in cast iron. The secret process, licensed to Kuhns by International Nickel, renders graphite nodular in form in ductile iron. The presence of nodular graphite is necessary to produce the tensile strength and elongation (a quality of stretch) defined in ASTM Specifications A395-56T for ductile iron. The presence of flake graphite in a ferrous alloy eliminates the quality of elongation and produces physical properties of cast iron which is brittle and does not stretch;
(e) By an exhibit attached to its letter to Duriron, dated September 4, 1959, Kuhns specifically warranted that it would produce ductile iron meeting the physical properties set forth in said specification. Advertising brochures distributed by International Nickel Company and Kuhns listed "gas distribution systems" in enumerating recommended uses for ductile iron meeting said Specifications;
(f) Duriron furnished Kuhns a drawing for a valve body casting conditioned that the material of construction be ductile iron meeting ASTM Specifications A395-56T, and thereafter issued purchase orders for ductile iron valves conditioned that the material of construction conform to the specifications shown on said drawing. Based on said purchase orders, Kuhns delivered The Valve to Duriron;
(g) Duriron required Kuhns to furnish reports, from a qualified independent testing laboratory, of the chemical composition of specimens of metal used in casting valve bodies sold to Duriron. The laboratory report, furnished by Kuhns to Duriron, having reference to the metal used in casting The Valve, indicated that the chemical composition conformed to the minimum requirements of ASTM Specifications A395-56T. The chemical properties test, even though revealing conformity with the ASTM Specifications, does not insure that the alloy meets the minimum physical or mechanical properties of the ASTM Specifications. Physical or mechanical properties meeting the ASTM Specifications could be produced only if Kuhns followed the secret process and procedures International Nickel licensed it to use for making the ductile iron alloy;
(i) Upon the receipt of valve bodies from Kuhns, Duriron visually inspected the same for apparent defects, x-rayed valves, selected at random and, after machining some surfaces, sizing a Teflon liner within the valve body and on the plug, assembled the finished valve and submitted it to hydrostatic tests, none of which...
To continue reading
Request your trial
-
Hageman v. Signal LP Gas, Inc.
...agreement in this case operated either as a covenant not to sue or a release with a reservation of rights. See Stephenson v. Duriron Co., 292 F.Supp. 66, 86-87 (S.D.Ohio 1968), aff'd, 428 F. 2d 387 (6th Cir. 1970). We find that the holding of the Ohio Supreme Court in Bacik v. Weaver, 173 O......
-
Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc.
...and specifically the statute that governs implied-in-fact contracts, applies to an action for common-law indemnity. Stephenson v. Duriron Co., 292 F.Supp. 66 (S.D.Ohio 1968), aff'd, 428 F.2d 387 (6th Cir.1970); American Ins. Group v. McCowin, 7 Ohio App.2d 62, 218 N.E.2d 746 (1966); Owings ......
-
Mardikian v. CitiMortgage, Inc.
...1975); Valley Bank of Nevada v. Skeen, 366 F.Supp. 95 (N.D. Tex. 1973), aff'd, 495 F.2d 1371 (5th Cir.1974); Stephenson v. Duriron Co, 292 F.Supp. 66, 80 (S.D. Ohio 1968), aff'd, 428 F.2d 387 (6th Cir. 1970)). "Further, it has not been considered a bar to such an action that the federal dis......
-
Owings v. Rose
...the contract statute of limitations, rather than the tort statute, applies to an action for common-law indemnity: Stephenson v. Duriron Company, 292 F.Supp. 66 (S.D.Ohio 1968); American Insurance Group v. McCowin, 7 Ohio App.2d 62, 218 N.E.2d 746 (1966); Klatt v. Commonwealth Edison Company......