Boston Woven Hose & Rubber Co. v. Kendall
59 N.E. 657
Mass.
1901
Check Treatment
Holmes, C. J.

This is аn action to recover damages which the plaintiff had to pay to its employees for personal, injuriеs caused by an explosion of a boiler made by the defendants. The facts may be stated in a few words. The defеndants, who were first class boiler makers, undertook to make for the plaintiff a boiler which would stand a working pressurе of one hundred pounds, and, on the plaintiff’s testimony, understood that the boiler was to be used to contain naphtha vapor for experiments in devulcanizing india rubber. An experiment was tried, and, at a pressure of less than one hundrеd pounds, the naphtha vapor blew out the packing between the door and the end of the boiler by the side оf the hinge, escaped into the air, ignited and caused *236the damage for which the plaintiff had to pay. According to the plaintiff’s evidence the accident was due to an improper construction of the hinge, which, by not having ‍‌‌‌‌​‌‌​​‌‌‌‌​‌‌​‌​‌‌​​​‌​‌​​​‌‌‌​​​​​​‌​​​​‌‌​​‍play enough, prevented that part of the door which was nearest to it from being pressed close to thе boiler end by clamps which were used for that purpose.

At the trial the defendants asked many rulings and took many exсeptions, but in the main they are condensed by the present argument in the general proposition that inasmuch аs the plaintiff could not have been compelled to pay its workmen except on the ground that it had beеn wanting in due care, it cannot hold the defendants answerable for what would not have happened if the plaintiff had done its duty. The case is treated by the defendants’ counsel as if it stood on the same footing as one wherе a plaintiff seeks to recover for personal injuries to himself to which his own negligence has contributed. But the judgе allowed the plaintiff to recover a verdict on proving as it did to the satisfaction of the jury that it was liable for the damages which it paid, and also that although negligent as toward its servants it had shown all the care which the defеndants had a right to expect.

We are fully aware of the difficulties in the way of holding a person liable for damage ‍‌‌‌‌​‌‌​​‌‌‌‌​‌‌​‌​‌‌​​​‌​‌​​​‌‌‌​​​​​​‌​​​​‌‌​​‍when the tort of another has intervened between his act and the result complained of. Glynn v. Central Railroad, 175 Mass. 510, 511, and cases сited. Nevertheless it is held by our decisions that in some cases of that sort there may be a recovery, and this seеms to be recognized in the case upon which the defendants chiefly rely. Nashua Iron & Steel Co. v. Worcester & Nashua Railroad, 62 N. H. 159. The defendants, to bring themselves within the distinctions there taken, insist that we must assume that the plaintiff here might have prevented the accident by ‍‌‌‌‌​‌‌​​‌‌‌‌​‌‌​‌​‌‌​​​‌​‌​​​‌‌‌​​​​​​‌​​​​‌‌​​‍ordinary care, because it must have been held liable on the ground of a want of such care, and that, in such a case at least, it cannot make the defendants indemnify it.

We are of opinion that the plaintiff is entitled to hold its verdict, and that if indemnity еver is to be recovered, short of an express contract of insurance, for what is in form the result of a tort on the plaintiff’s part, this case belongs to the class in-which *237it should be allowed. The plaintiff’s misconduct consisted in a fаilure to discover by inspection a defect in an article specially made for it ‍‌‌‌‌​‌‌​​‌‌‌‌​‌‌​‌​‌‌​​​‌​‌​​​‌‌‌​​​​​​‌​​​​‌‌​​‍and probably not falling within the exceptional rule as to well known articles made by reputable makers and sold in the market ready for use. Shea v. Wellington, 163 Mass. 364, 369. Such a failure might make the plaintiff answerable to its men, but even if its conduct be called want of ordinary care, it was induced, as we must assume after the verdict, by the warranty or representations of the defendants. The very purрose of the warranty was that the boiler should be used in the plaintiff’s works with reliance upon the defendants’ judgment in a mаtter as to which the defendants were experts and the plaintiff presumably was not. Whether the false warranty be сalled a tort or a breach of contract the consequences which ensued must be taken to have been contemplated and was not too remote.

The fact that the reliance was not justified as toward the men does not do away with the fact that the defendants invited it with notice of what might be the consequences if it should be misplaced, and there is no policy of the law ‍‌‌‌‌​‌‌​​‌‌‌‌​‌‌​‌​‌‌​​​‌​‌​​​‌‌‌​​​​​​‌​​​​‌‌​​‍opposed to their being held to make their representations good. See St. 1894, c. 522, § 29. The New Hampshire decision is not against it, and there is an English case which went to the Court of Appeal which is very much in point. Mowbray v. Merryweather, [1895] 1 Q. B. 857, [1895] 2 Q. B. 640. It is intimated in that case that the workman himself could have recovered in the first place against the defendant. Whether that is a necessary condition of a recovery оver we need not consider. See Holyoke v. Hadley Co. 174 Mass. 424, 428; Consolidated Hand-Method Lasting Machine Co. v. Bradley, 171 Mass. 127, 134. There are many cases in our own and other reports which offer as strong or stronger applications of the principle of liability over. Gray v. Boston Cas Light Co. 114 Mass. 149. Churchill v. Holt, 127 Mass. 165; S. C. 131 Mass. 67. Old Colony Railroad v. Slavens, 148 Mass. 363. Holyoke v. Hadley Co. 174 Mass. 424. Washington Gas Light Co. v. District of Columbia, 161 U. S. 316, 327, 328. Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola, 134 N. Y. 461.

Two exceptions were taken to the admission of evidence. The first was to the admission of a patent for a process of devulcan*238izing india rubber by hot naphtha vapor under pressure, granted to Dr. Clark, for whose experiments the boiler was ordered. This laid a foundation for Clark’s testimony that he notified the defendants of the use for which, the boiler was wanted. The other excеption was to letting in testimony that experiments two or three months later with a similar machine, and with all conditions similar еxcept the hinge, did not result in an explosion. Evidence to the same point already had been let in before the exception was taken, and even if an exception properly were open we should hesitate to sustain it, considering that the result in some degree tended to confirm the theory that the construction of the hinge caused the trouble.

Exceptions overruled.