Tomao v. AP De Sanno & Son
| Decision Date | 04 January 1954 |
| Docket Number | No. 11108.,11108. |
| Citation | 209 F.2d 544 |
| Parties | TOMAO et al. v. A. P. DE SANNO & SON, Inc. |
| Court | U.S. Court of Appeals — Third Circuit |
E. Walter Helm, Philadelphia, Pa. (Raymond A. White, Jr., Philadelphia, Pa., on the brief), for appellant.
B. Nathaniel Richter, Philadelphia, Pa. (Richter, Lord & Farage, Charles A. Lord, Philadelphia, Pa., on the brief), for appellees.
Before MARIS, STALEY and HASTIE, Circuit Judges.
Anthony J. Tomao, the minor plaintiff, lost his left eye when a grinding wheel, which had been manufactured by defendant, disintegrated. In the district court, the jury awarded his parents $15,000 on his behalf and $2,000 in their own right, and defendant appeals.
Anthony was seventeen years old at the time of the accident and a student at a trade school in Massachusetts, where he had studied for about two and one-half years. Desiring to sharpen a rag-cutter, he was given a grinding wheel by the instructor. The wheel had never been used before. It came from the tool-room where there were other like wheels packed in sawdust. Anthony looked at the wheel in the light but saw no cracks in it. He tapped it lightly with the wooden handle of a screwdriver and got a clear ring. Discovering that the hole in the wheel was too large for the spindle, he made a bushing to reconcile the difference. He then mounted the wheel and got a good fit. He stood to one side and turned on the machine. After about one-half minute's operation, the wheel shattered, and part of it struck his left eye.
Plaintiffs introduced a wheel obtained from the trade school in Massachusetts. It was the same size and shape as the disintegrated wheel and had like notations on the label. The wheel was saucer-shaped and was four inches in diameter. On each side, extending out from the hole in the center, was a circular cardboard blotter. The purpose of the blotters was to act as a washer or buffer between the rough surface of the abrasive wheel and the steel flange that grips it. Printed on the blotters were the trade-name of the wheel, defendant's name, and, by abbreviations, the recommended speed of operation and the test speed, with a space after each for filling in the appropriate figures. Defendant failed to supply the recommended or test speeds on the wheel that exploded.
Defendant's vice-president testified that the wheel could operate safely at a maximum of 5,729 revolutions per minute. It was being operated at 10,000 r. p. m. when it disintegrated.
The case was in the district court for the Eastern District of Pennsylvania by virtue of diversity jurisdiction.1 Thus, we must act as a Pennsylvania court would in dealing with operative facts occurring in Massachusetts.2 Pennsylvania would refer to the substantive law of the place of the wrong.3 Consequently, we apply Massachusetts tort law.
In Carter v. Yardley & Co., 1946, 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559, Massachusetts gave sweeping acceptance to the doctrine of MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696. Thus, the injured ultimate user is no longer denied recovery in Massachusetts for his lack of contractual privity with the negligent manufacturer. With that hurdle out of the way, the jury's verdict in this case was quite proper.
One of the universally recognized causes of breakage of a grinding wheel is the extreme centrifugal force to which it is subjected when in operation. This force, of course, increases as the speed of revolution increases. It follows that the user of a wheel must know its probable safe speed of operation. That defendant in fact recognized the necessity of so informing the user was shown by the fact that it did provide blanks on its wheels for disclosing that information. Of even more telling force in this regard was the testimony of defendant's vice-president when called by plaintiffs as on cross-examination. He testified that for all grinding wheels there is a speed of revolution beyond which it is not safe to go because the wheel will probably break; that it is very important that the user be told what that speed is so that he will stay below it; and it is for this reason that the recommended speed and test speed are printed on the labels of the wheels. In the face of these facts, defendant put into the stream of commerce a grinding wheel whose maximum safe operating speed was below 6,000 r. p. m. without disclosing that information to the user. In view of defendant's omission, what happened here was well within the range of prediction: Anthony Tomao was given a grinding wheel which appeared to be just an ordinary wheel but which would probably shatter if operated at more than 6,000 r. p. m.; he subjected it to ample tests, mounted it on an ordinary grinding machine which spun it at about 10,000 r. p. m.; it exploded, and he was injured. There is nothing in the record to indicate that 10,000 r. p. m. is such an unusually high rate of speed that defendant should not be held to have foreseen such a use of its wheel.
In the Carter case, supra, 64 N.E.2d 693, 696, the Supreme Judicial Court of Massachusetts said:
"In principle, a manufacturer or other person owning or controlling a thing that is dangerous in its nature or is in a dangerous condition, either to his knowledge or as a result of his want of reasonable care in manufacture or inspection, who deals with or disposes of that thing in a way that he foresees or in the exercise of reasonable care ought to foresee will probably carry that thing into contact with some person, known or unknown, who will probably be ignorant of the danger, owes a legal duty to every such person to use reasonable care to prevent injury to him."
That rule is clearly enough to require that defendant be held in this case.
The Carter case, of course, dealt with an article which had been negligently manufactured so that it was defective. In that respect, it differs from the present case since plaintiffs' complaint here is not that the wheel was defectively put together, but that, even if carefully made, it was put out without warning as to its limitations. That difference does not affect the result here, however, because the Carter case did away with the manufacturer's defense of lack of contractual privity and imposed a tort duty. If the manufacturer owes a duty to use due care in making his products, he owes also the companion duty to warn of the latent limitations of even a perfectly made article, the use of which, however, is dangerous if the user is ignorant of those limitations and the manufacturer has no reason to believe that he will recognize the danger.4
Defendant presents three objections....
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