Tromza v. Tecumseh Products Company

• Citation: 378 F.2d 601
• Decision Date: 05 June 1967
• Docket Number: No. 15958.,15958.
• Parties: John TROMZA v. TECUMSEH PRODUCTS COMPANY, a Corporation and Marquette Corporation, a Corporation. Marquette Corporation, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

378 F.2d 601 (1967)

John TROMZA v. TECUMSEH PRODUCTS COMPANY, a Corporation and Marquette Corporation, a Corporation.

Marquette Corporation, Appellant.

No. 15958.

United States Court of Appeals Third Circuit.

Argued November 17, 1966.

Decided June 5, 1967.

COPYRIGHT MATERIAL OMITTED

William A. Weiler, Pittsburgh, Pa. (Egler, McGregor & Reinstadtler, Pittsburgh, Pa., on the brief), for appellant.

Kim Darragh, Pittsburgh, Pa. (Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., on the brief), for appellee, Tecumseh Products Co.

Donald Laird Hankey, New Kensington, Pa., for plaintiff-appellee.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

OPINION OF THE COURT

KALODNER, Circuit Judge.

In the instant personal injury action¹ the jury awarded damages to the plaintiff John Tromza against the defendants Tecumseh Products Company ("Tecumseh") and Marquette Corporation ("Marquette"), and the District Court found against Marquette in its cross-claim for indemnity against Tecumseh.²

The District Court entered judgment in favor of the plaintiff against Tecumseh and Marquette pursuant to the jury's verdict, following its denial of their respective motions for judgment n. o. v., and Marquette's additional motion for a new trial. It also entered judgment in favor of Tecumseh against Marquette after denying Marquette's motion for judgment n. o. v. as to the cross-claim.

This appeal by Marquette followed.³

It urges that it is entitled to judgment n. o. v. both in its cross-claim against Tecumseh and in Tromza's case; further, that asserted erroneous instructions to the jury by the District Court entitle it to the minimum relief of a new trial.

In reply, Tromza contends that the evidence sustains the jury's verdict in its favor against Marquette and Tecumseh and that the District Court did not err in its instructions to the jury. Tecumseh, in its reply, asserts that the District Court correctly entered judgment in its favor in the cross-claim for indemnity.

Discussion of the issues presented must be prefaced by this statement of the critical facts adduced at the trial.

Tecumseh manufactured and sold to Marquette a sealed compressor refrigeration unit which Marquette incorporated in a refrigerator which it manufactured. The compressor unit was enclosed in a steel casing or shell, whose two halves were welded by Tecumseh. The refrigerator manufactured by Marquette carried a plate which stated that the factory test pressure of the refrigeration unit was 195 pounds.

The casing or shell of the compressor unit exploded when the plaintiff, a repair man, submitted the refrigerator to a pressure of 170 pounds in proceeding to repair a gas leak in its refrigeration system. The plaintiff was seriously injured by the explosion.

Plaintiff's expert witness, Dr. Guy M. Pound, testified that the cause of the explosion was a defect in the weld of the casing. Tecumseh's expert witness, James R. Elliott, testified that it was the usual practice in the industry for an assembler (such as Marquette), to submit the refrigeration system to an air pressure test of 235 to 250 pounds after connecting the compressor unit to the system. Elliott also testified that Underwriters Laboratory Specifications required that the compressor casing or shell should be able to "withstand or have a bursting strength * * * of 350 pounds."

The case was submitted to the jury on the plaintiff's theory that Tecumseh was negligent both in its manufacture of the compressor unit and in failing to discover the defect by a proper inspection, and that Marquette was negligent in failing to make a proper test or inspection of the unit. We agree with the District Court that the evidence clearly supported the jury's finding that both Tecumseh and Marquette were negligent. As to Marquette, it need only be pointed out that there was undisputed evidence that the customary industry practice was to submit an assembled refrigerator to a pressure test of 235 to 250 pounds while Marquette made only a 195 pound pressure test.

We are further of the opinion that there is no merit to Marquette's complaint that the District Court, in its charge, erroneously instructed the jury on the score of negligence on the part of Marquette. Moreover, the record discloses that Marquette did not at the close of the charge, take exceptions to it. Rule 51 F.R.Civ.P. provides that "No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict * * *." The Rule has been universally applied except in cases of fundamental error. Freifield v. Hennessy, 353 F.2d 97, 99 (3 Cir. 1965). It may be noted parenthetically that while the District Court denied, and properly so, four requests for instructions presented by Marquette, it has not questioned their denial on this appeal.

Coming now to Marquette's contention that the District Court erred in entering judgment in favor of Tecumseh on Marquette's cross-claim:

The sum of Marquette's contentions on this score is (1) it was only "secondarily liable" and Tecumseh was "primarily liable", and therefore it is entitled to recover indemnity from Tecumseh; and (2) it is entitled to recovery for breach of an implied warranty by Tecumseh.⁴

In reply, Tecumseh contends that the principle of primary-secondary liability in tort does not apply generally to an indemnity claim between manufacturers.

It must here be noted that the District Court, in its opinion reported at 253 F.Supp. 26, 27 (E.D.Pa.1966), premised its ruling in favor of Tecumseh on the cross-claim on its following stated reasoning:

"Since the identical negligence (failure to make proper inspection) was charged against each defendant, in the light of the jury\'s verdict the defendants must be found to be joint or concurrent tort-feasors rather than as occupying a relationship of primary and secondary liability. There was no legal relationship between them, such as master and servant, which is ordinarily the basis for distinction of primary and secondary liability. Pittsburgh Steel Company v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 61-62, 171 A.2d 185 (1961); Builders Supply Co. v. McCabe, 366 Pa. 322, 325-328, 77 A.2d 368, 24 A.L.R.2d 319 (1951)."

The District Court's determination, in its opinion, that Marquette and Tecumseh were charged with "identical negligence (failure to make proper inspection)" thereby making them "joint or concurrent tort-feasors rather than as occupying a relationship of primary and secondary liability", is at variance with its own prior statement that "the only negligence alleged against defendant Marquette was failure to make a proper test or inspection at the time of assembly; whereas defendant Tecumseh was charged with a two-pronged negligence, both in the welding process and in failure to find the defect by a proper inspection", and its further statement that "The Court remains of opinion that the evidence and the jury's verdict, on the two-fold grounds above stated, clearly support plaintiff's verdict against defendant Tecumseh." 253 F.Supp. 26, 27.

Since the District Court premised its determination that Marquette and Tecumseh "must be found to be joint or concurrent tort-feasors rather than as occupying a relationship of primary and secondary liability" on its view that they were both charged with "identical negligence (failure to make proper inspection)", the circumstance that the negligence charged against the defendants was not "identical", renders the categorization of the defendants as "joint or concurrent tort-feasors" clear error.

Further, the District Court erred in its view that under Pennsylvania law, applicable here, a "legal relationship * * * such as master and servant⁵ * * * is ordinarily the basis for distinction of primary and secondary liability." Pittsburgh Steel Company and Builders Supply Co. which it cites, afford no nourishment to its view, since they specifically do not limit application of the primary-secondary liability doctrine to cases where a legal relationship exists between the party primarily liable and the party secondarily liable.

That that is so is clearly evident from the following quotation from the Pennsylvania Supreme Court's opinion in Builders Supply Co. at 366 Pa. 327-328, 77 A.2d 371:

"Without multiplying instances, it is clear that the right of a person vicariously or secondarily liable for a tort to recover from one primarily liable has been universally recognized. But the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible." (emphasis supplied)

The foregoing quotation was preceded by this statement at 366 Pa. 325-326, 77 A.2d 370:

"The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence, — a doctrine which, indeed, is not recognized by the common law. See Fidelity & Casualty Co. of New York v. Federal Express, Inc., 6 Cir., 136 F.2d 35, 40. It depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person."

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