*1 BATH v. BABY HENTSCHEL et al. (WHITE METAL INETTE CORP. al. et CORP., third & STAMPING ROLLING defendant) party 251, Docket No. Appeals, Court of United States Second Circuit. Argued April 8 & 1954. July 27, 1954. Decided Hufstedler, Shirley Gilbank, M. O. T. Angeles, Cal., appellant.
Los Angeles, Thomasset, Los A. Charles
Cal., appellee. FEE, Circuit STEPHENS Before McCORMICK,
Judges, Judge. District
PER CURIAM. proceedings appeal arises out of This following agricultural petition com- Frank, Judge, Circuit dissented. position under Section and extension Bankruptcy Act of Title point at 203. The issue U.S.C.A. § bankruptcy was au- court whether property if debtor real
thorized to sell refinance himself within
has failed reappraisement years de- three proper- by the court of the termination
ty’s been made. value has opinion, D.C., in its trial court seeming am-
F.Supp. discusses
biguities in and holds that the the Act
reappraisement or court fixed value of the necessary
property and that a sale affording and without either without opportunity buy is invalid. debtor analyzed are cited and The authorities opinion. opinion approve and the order
We district court is
Affirmed. *2 them, apartment well as furnishings, its was much increased burning magnesium alloy. They getting safely
succeeded in the children apartment out of the both were injured doing. in so purchased by The bathinette had been appellant, Hentschel, Jerome appellee, Sears, Roebuck and Com- pany year about a before the fire occurred apartment and had been used in the with- mishap purpose out appellee for the for it; e., bathing had sold for L baby. waterproof plastic top It had a bathing to hold the water used for top supported by legs was four X-shape crossed made of alloy mag- with wooden The extensions. alloy composed nesium was of 96.83% magnesium; aluminum; 1.39% .96% manganese; and zinc silicon. .82% alloy was .049 of an inch thick and pieces was extruded to make hollow square lengths inch which were cut into support plastic top suitable to at the height upper desired convenient with the Smith, Brooklyn, Y., Vine H. N. for top ends fastened to the plain tiffs-appellants. The bathinette had been manufactured Reilly, Dicker, Lines, McLouth Ro- & Baby Corporation Bathinette chester, Y., Stephen Lines, V. Roches- N. Sears, Company sold to Roebuck and ter, Y., counsel, defendants-ap- N. hollow, square pieces resale. The pellees, Baby Sears, Corp. Bathinette magnesium alloy legs from which the had Roebuck & Co. purchased by been made had been George Berkowitz, City, York New Baby Corporation Bathinette from the party, defendant-appellee. third Rolling Stamping Corp., White Metal & CHASE, Judge, Before Chief and which had manufactured and sold them FRANK, Judges. SWAN Circuit for such use. appellants brought suit, there Judge. CHASE, Chief being diversity jurisdiction, plaintiffs-appellants Baby are a husband Corporation, Sears, Bathinette Roe- baby, and wife who with their and their Company, buck and Corporation and Dow Chemical boy girl children, five, other and a three damages to recover for the living years old, personal injuries four-room they had sustained. Muskegon,
apartment
Mich.,
complaint
when a The
was dismissed as to the
broke out in the
fire
morning
bathroom on the
Corporation
Dow Chemical
for lack of
January 12,
baby jurisdiction
1949. A
and no issue survives as to
which was then in
bathinette
the bath-
Rolling Corp.
that. The White Metal &
ignited
supports,
was
impleaded by
room
Baby
made Bathinette
magnesium alloy
MF, Corporation
known as
party
as a third
defendant.
fiercely
nearly
Negligence
and were
constructing
burned
consumed
the bathinette
extinguished.
improper
the fire could be
charged
before
material
in appellants and
complaint
their children were in
as the cause of the fire and apartment
danger
resulting injuries
at the time and the
plaintiffs,
warranty
appellant previously
fire" there should be
started
well as breach
of it to a
the seller
verdict for the defendants.
Jerome Hentschel
him.
Although
exception
was no
there
*3
by jury,
was re-
a verdict
After a trial
charge pursuant
F.R.C.P.,
the
Rule 51
to
ap-
the defendants
turned for
U.S.C.A.,
necessarily
28
preclude
that does not
judgment
peal
on that verdict.
is from the
appellants rely
appeal as
review on this
we
upon
as-
reversal
give
judge
think there was no
to
the
need
charge
rul-
as to
serted error
the
any opportunity
any inadvert-
to correct
admitting
ings during
and ex-
the trial
Sweeney
ent error.
United Features
v.
cluding evidence.
Syndicate, Cir.,
it’.” test not “The of the balance still call whether ’probabilities, enough likely but of the existence some the event was “to induce probability part in of sufficient moment action to avoid on the it a reason- part action to it on of a able mind.” duce avoid mind.” reasonable breaking out of a fire a house- problem perhaps surely unlikely, improbable, hold While often — cause, usually analyzed an or in terms of Millions of Americans unforeseeable. — preferable repre- perhaps recognize, anal- so alternative since fire insurance duty. ysis insurance; phrased would be in terms sents the commonest form of goods inquiry virtually persons ultimate would remain all insure their although same, phrased hazard; it some- would be and well sort of differently: they might, what Was occurrence since there about mil- enough year country.5 it should be here foreseeable lion fires I each in this regarded de- risk which would make fail can understand how this court de- was, negligent? unforeseeable, “abnormal,” If fendant’s conduct scribe as duty of reasonable then defendant owed unlikely, happening *5 numer- which the hazard, protect and this care plainly policies consid- ous holders of fire likely duty to be this he owed to those er foreseeable. place hurt, occurrence took the if —and acted, When, has after a defendant undoubtedly plaintiffs included here. this “unexpectable” “intervenes”6 and event view, of “cause” the In this harm, plaintiff’s defend- contributes hap- in fact. of cause would be non-culpable (being then act is held ant’s regarded not would be pening of the “proximate as not a labeled sometimes cause, bearing but on of on the issue everywhere cause”).7 courts But analysis negligence. This issue 7. “proximate foggier phrase No 2. D.C.S.D.N.Y., Mars, 9 F.2d neg- use in contrived for could be cause” 184. See, g., Gregory, ligence Proxi- cases. e. ap- quoted statement We Negligence in Retreat Cause mate Refining Co., —A proval v. Sinclair in Pease “Rationalization,” of Chi.L. 6 U. From Cir., 186. F.2d 104 36; (1938) v. Refin- Pease Sinclair Rev. 3. Mfg. Co., Amoskeag Tullgren N.H. 185; ing Co., Cir., Ed- 104 F.2d A.L.R. 133 A. Legal Cause, gerton, 72 U. of Pa.L.Rev. approval quoted Pease in us also Legal Perry, 211; (1924) and James Refining Sinclair 761; Street, (1951) Cause, L.J. 60 Yale Refining Co. v. Gulf 186. See Liability (1906) Legal Foundations Williams, 236. 185 So. Miss. Green, 110, 112; Rationale of Prox- Leon Judge (1927); Green, 4. Duty Leon Scope Cause James, imate in e. ff, Jury (1930) 196 242. and Cases, Negligence L.Rev. 47 Northwestern pub- Foreseeability Nicholas John Green St. Harper, 778; (1953) Fac- unsigned article, a brilliant Proxi- lished Torts, Notre Dame Law in the tor Cause, 4 Am.L.Rev. and Remote Seavy, mate 201, Lawyer (1932) Justice Mr. reprinted (after death) Torts, his later 52 Harv. the Law and Cardozo Essays (1933) Green, on Tort and Crime (1939) also the fol- 372. L.Rev. Lord Bacon’s There he showed that 1. unsigned lowing Holmes : articles maxim, jure causa, “In sed non remota Arrangement Law, and Codes spectatur,” prowimata, derived Arrange- from the 1, 3-1; (1870) Am.L.R. Theory who turn derived it from (1872) 46; schoolmen Law ment According schoolmen, (1873) 652, Aristotle. 660. Am.L.R. “proximate explained, so Green Underwriters, of Fire Board National is in which is involved the idea cause” Origins Statistics, and on Committee necessity, one the connection between p. May 1953, Report Fires, plain and the effect and intel- which ‘intervening ligible, a “remote cause” is one while conceded be “It reasoning, unsatisfactory term, highly which is inconclusive is a force’ problem dealing the connection between which with a cause we are since uncertain, vague, physics”; or inde- Pros the terminate, responsibility, not effect ser, it does so that not contain in Torts circumstance, necessity which find shall different between element of itself the properly intelligibly call we shall then cause “The remote and its effect. * * * point every may may given, cause. From not follow effect facts, * * * knowledge knowledge [Tjrue of view from which we look at the many appears. dif- proximate cause In as A schoolman’s a new cause.” many- ways effect, logic, so ferent at Oxford we view textbook generally par- time, causes, Cambridge word is said different as the Bacon’s true, used, proximate the- can we find for it. The cause of their ents are separate- entire, grandfather children, is “the remote cause is none these but a * * * singly, grandson. taken causes taken together. but all of them father his cause of begetting separate upon depends are These causes his ancestors every proximate way son, each causes stand to other his proximate remote, relation of Green noted the remote.” cause intelligible get words com- sense in which those schoolmen we that from the pound “because,” used.” which is a con- can be word “By phrase respect legal the cause.” traction of the With use “Bearing “proximate in mind cause,” wrote: Green maxim about Green fell, disrepute sagely difficulty schoolmen into which the remarked: “The chief * * perhaps surprising proximate that when it is not is that term generations Bacon’s his clear, distinct, after time several the term remote have began gradually quoted in significations. Sometimes, maxim and definable court, meaning, proximate as the enun- its true causes are remote in decided general truth, time; should ciation of sometimes those are sight proximate has result- of. Confusion lost decided to be which are remote general regarding it, space. not as a ed from The divisionis neither scientific susceptible precept caution, logical. nor It is not the scholastic divi- special application. sion, though has been used many It it often has of its *6 frequently this manner more in this coun- all, characteristics. Above fixed it is not a try England. in Some than American and constant division. It varies in regarded par- to courts seem have it as different classes of actions. The same applicable ticularly negligence, to of cases cause ered effect which would be consid- description proximate and in actions of that have actions, in one class of placed upon as in looked hands for the facts, a rule their being the attendant circumstances un- purpose measuring changed, the of would be considered remote saving meaning the from trouble. prox- terms, others. The of the * * * There is remote, but one view of causa- imate and is contracted or en- practical larged, tion according which can be subject- of service. to what is the every To event inquiry.” there are certain antece- matter of the dents, single antecedent, a never but al- Green went on to observe that the ways antecedents, being a set of which similarly maxim is respect not used of given follow, the effect is to sure unless contracts, policies negli- insurance thing intervenes to frustrate gence, some new negli- “In added: actions for such result. It is not one of this gence, a is defendant held liable for the by itself set of antecedents taken which probable consequences natural and of his by No itself the cause. misconduct. this class of actions his produce effect. true cause is the the proximate (cid:127)misconduct called the cause together. of antecedents taken whole set prudent foresight of results those which necessary also it becomes to Sometimes might have avoided. It is called the re- part account, take into of as of the set ** cause of mote There other results. antecedents, nothing the fact in- applica- is no settled rule for the prevent antecedents the from tervened to determining of tion the maxim by the effect. But when followed damages in actions of tort. In such ac- investigated any prac- is to cause tions, damages, prox- which are called purpose the which is antecedent tical vary proportion imate, often to the scope purpose is of that within the misconduct, recklessness or wantonness * * * cause, singled and called out of the defendant. makes us The law neglect responsible the antecedents which are of for those effects of voluntary importance might reasonably to the matter hand. acts which * * * foreseen, various or circum- been which What one have are of a analogous necessary might a death we shall to effects to kind stances cause, neglect gen- single as the thus have been foreseen. There out depends circumstances, upon way erally determining no other the other analogous purpose for what we in- whether events are to them might vestigating kind, For each were or the death. have been different antici- investigate pated purpose foreseen, by appeal with we we now hold not defendant is insulat- there intervened even a tortious or crim- liability by ed person from the mere fact inal act of a third or a “force maxim, attending given degree danger By applying con- experience. we appeal. known wheth- duct certain circumstances determine under We make that proximate given to throw the risk is sufficient and effects causes er pursuing party it”, legal remote, an echo of sense of those seems or words, experience above) (quoted own Green’s earlier statement about ow from experience” judi- “appeal The use and effect. of cause succession foreseeability. error See lead to cial determinations of is liable to of the maxim (1880) Holmes, withdrawing Law the true from The Common the attention 56, 147, 150, 152, 158, subject inquiry. clear- add cannot by We talking reasoning quotations Green’s In the above ness our effects, emphasis article, proximate on effects causes and and remote degree inquiries particular purposes certain- when we mean ap- “pragmatist’s” uncertainty ty “cause,” connec- which the reveals the many years, anticipates, proach, effect between cause and tion Cardozo, anticipated. an incon- this is views “cause” But the similar Edgerton, F. Cohen. submitted R. S. must be M. Cohen venience which attempt practical Cardozo, Legal Science Paradoxes those who application to make Legal Cause, (Emphasis 83-85; Edgerton, (1928) the maxim.” 211, 343; (1924) added.) M. 72 U. of Pa.L.Rev. History Meaning unsigned portion Cohen, of Human article R. Green’s 113-115; 96-97, 105-106, Sage, (1947) quoted F. S. N.Y. in Laidlaw v. was 73, 99-100, Logic, Cohen, Theory and Judicial 44 L.R.A. Field Palmer, (1950) Yale 251-259. L.J. and in Salsedo by Green, Although Aristotle noted As to Green’s brilliance F. reality Street, originality, of chance. Foundations had asserted the see 1 Liability Legal the same. e. Munk- note Peirce did Occurrence, man, anof Accidental interest to Causes It should be considerable Frank, lawyers Green, L.Rev. Oliver Wendell 17 Modern Chapter Holmes, Jr., law-school Fate and Freedom and two other Joseph pp. graduates, Warner, note and also note John Fiske and B. Many young men, 325 note 361 note members of together physicists “Metaphysical Club,” modern concept have abandoned the *7 (absolute philosophers, determinism and William of cau- O. Peirce S. Schroedinger, Wright. sality). See, Ohauncy g., James, e. Science and the scientist Temperament (1935); Wiener, the Human and See the Founders Evolution Pragmatism Peirce, (1949). Frank, (1945) Chap- the au and Freedom of thor Fate “pragmatism,” Causality 12; Kelsen, of idea of later and Retribu- ter tion, acknowledged Phil, that much of he owed 533, (1941) 8 of Sc. 555-556. Green, said of idea Green. He “His philosopMc no That the scientific and extraordinary power disrobing of warm originally from the tions of “cause” came breathing draperies truths of the of usages courts, law of Greek where long-worn formulas, was what attracted responsibility guilt, or “cause” denoted everywhere.” Fisch, him attention to See & & Johnson Co. v. Securities Ex see change Commission, Cir., Genealogy Bain and The Alexander of Pragmatism, History 15 J. of of Ideas Paideia, 17; Jaeger, I 697 note Vol. Weiss, (1954) 413. See also Paul C. S. Society 159; Kelsen, (1939) (1943) Nature and Dictionary Peirce, Biography of Myres, 97; n. (1934) 394, 400; Jurispru Patterson, Science, Beginning of the volume Sci 471, 474-477; (1953) dence and Peirce’s ed.) (1923, Marvin ence and Civilization proximate cause, definition of in Bald 7, 21-22. Dictionary Philosophy Psy (in early win's of carry is the over Greek Related years chology, long some after thought, Stoics) Green’s arti before the of the (just) cle. of moral human idea social order that, significance (with lack It does the notion of inexorable retribu- that, core) physical Holmes said Mr. Justice at tion (nonhuman) to the realm of young man, nature, much he had learned so that the idea of Fisch, originally loe. eit. at See note 6. Green. “laws of nature” stemmed from may g., well learned thus have Holmes “natural law”. e. Harri- “experience” emphasize son, (1911); Cornford, as “life Themis From Holmes, Religion Philosophy (1912); Frank, law”. The CommonLaw See concerning neg- (1881) (1945) Chapter 1. His statement Fate Freedom Phil, ligence (Ibid. 149), experience Causality Kelsen, Retribution, “that (1941) the test which it is decided whether of Science 533.” intervening notwithstanding cause, lack his animate provided nature,”8 category responsibility for other cause’.” not within factor was 302 and also Restatement of Torts markedly § unusual. g. suffices, then, the de- comment It Michigan court, highest Typically, fendant “a creates situation harmless Inc., 1946, Olympia, Brackins actually itself which will become 168 A.L. 25 N.W.2d Mich. dangerous unreasonably result” approval 439 of the 890, quoted § with R. intervening” “foreseeable event.9 In line effect, and of Torts to that Restatement judicial with this ac- attitude towards Juris- 38 American also the statement “ negligence, tionable the courts have often to re- prudence ‘one liable 716 that intervening forces,” held that “natural injury damages spond for lightning, wind, or probable floods result of natural and was the drought, may be taken negligence into account of his the concurrence ascertaining con- foreseeable negligence another, act or negligent sequences of a accident, act.10 pure with an in- God or 290(b) Torts, he can do his work. Thus each test §§ Restatement in turn d, e, 447, must have its own test until the Comment Comment 302 and question completely to be decided becomes 448, 449. Nothing obscured. more is done under Eldredge, Modern Tort Problems formula, point, this as used at this in the crudest state fashion the Reporter” Eldredge was “revision responsibility responsibility. or no It pertinent parts of the Restatement very poor way saying is a that some- as revised 1948. See Restate body pass judgment Torts on the case. Supplement, p. Law, of The ment viii; somebody may be, Whoever trial sections, see, revised e. court, jury, appellate § court, he will ee, 433(b) and Com as, § Comment than, ‘foresee’ as far and no further ment, 435 and Comment d. intelligence permits § his own him. But (as a substi The “foreseeable” formula constantly expanding extravagant this “proximate cause”) tute has also rigamarole proximate cause and come in criticism its lack probable consequences apparently has so precision. See, g., Gregory, e. “Prox judges ensnared most have sur- Negligence Retreat imate Cause independent power —A rendered their ” ‘Rationalization,’ From Chi.L. judgment Un. it, in so far as that can be 51-52; at and Per Rev. James leaving done while still able them to reach ry, Legal Cause, 60 Yale Law particular J. a decision in the case. It 799-801; Restatement that, enlightened use, true under Supplement, pp. 651-652. get formula way, need not as it Jury (1930) Judge Green, *8 and Leon desired; can bo stretched to cover end attempt 202-203, but, to writes: “The courts hand, on subject the other it to foreseeability, natural and may the use the much abuse and divert attention so supposedly consequence probable widely problem test —a from the involved it that proximate both civil cause formula —in has become the most in- hurtful formula, for cases. This and criminal fluences tort law. Both its vice and part than as of the technic use elsewhere its may virtue lie in the fact it that count submitting negligence anything to a nothing. or for Its function jury, would honest discus- joker be beneath is similar to that gamo of a' seriously by poker.” it not so taken sion many It seems to be overlooked courts. Green, (144, Leon in the same volume put great by in this 244) who faith speaks those “ready to wear ‘proximateness’ as a that test of formulas”; formula liability “vocabulary of a of absorb- major subject becomes, turn, phrases defy analysis”; ent and ‘proxi- * * * To determine for determination. thick “the mists termin- ‘prob- mateness,’ therefore, we ology” penetrate.” which “are hard to ‘probability’ ability.’ But itself must be employ determined, hence we ‘foreseeabil- Co., Brown v. West Riverside Coal 143 ‘foreseeability’ ity’ purpose. for that But Iowa L.R.A.,N.S., 120 N.W. 28 determined, (deceased dynamite also must be so we introduce caps 1260 killed when ‘ordinary person.’ prudent shanty But he stored workman’s were ex by ploded by lightning); defined and oriented the ‘cir- must be Milwaukee & St. P. particular Kellogg, ease’ cumstances before R. Co. v. 94 U.S. 24 L.Ed. 110 may present although injury Portland v. Kosmos has Johnson not e. yet give validity Finally, Co., occurred. 6 Cement engaged plaintiff's such contention lead .decedent to the anom There making defendant’s alous on result in Texas R. Co. alterations noted & P. v. previously Carlin, Cir.,
barge; had 111 F. ‘That for defendant first, barge transporting perhaps second, injury had oil but and occurring prevent the hold to out such manner there could be failed to clean barge recovery; gases; generation third, was no but for the or when explosion lightning, by peculiar and circumstances ceased to be struck consequence gases resulted, familiar, became defendant would think, however, The court be was killed. liable.’ We that which decedent light liable, saying that doctrine of calls for held defendant foreseeable results extraordinary ning applied no manifestation narrow test to be to an “no strikes, Lightning ticipation injury as the one above dis of natural force. injury our ordi cussed. is within We think the true to be This rule results. thing produces nary experience observation. We when the done immediate inju danger injury, many precautions its to avoid and is a substantial take bringing about, effect, are insured factor in it is not rious insure nec expectation essary is reasonable the author of it should have it. Nor consequences particular by injurious to be deter had mind the means inju potential similar which the that no force has created mined the fact he injury.” known to follow vitalized into rious result has Re wrongful identical attend statement of under 435: “If the actor’s like act § so, pe bring ing conduct is If this were substantial factor circumstances. ing another, discovered could be harm to the fact circumstances culiar accident, every and relied neither foresaw nor should have in almost the actor * * liability. It needs foreseen the extent of harm or the to defeat danger demonstrate manner it occurred does illustration to strong high winds); (unusually winds carried American v. Coal Co. plaintiff’s ship sparks Wese, Cir., (defendant defendant’s F.2d 349 from De City pile); piled negligently v. Morrison waste natural mill lumber coal Ironwood, 155 N.W. 189 Mich. filled with dur watercourse which ing water into slipping injured by heavy rainstorm; (plaintiff water waste up plaintiff’s recent and from a down snow backed and slid ditch covered Vyse burying unexpected snowstorm); people); v. Chica house seven Whitaker Pitcairn, Co., go, Iowa R. v. 351 Mo. S.W.2d Q. B. & support (crushed (excessive rock used rain caused washout of rail N.W. 736 bridge train); diverted Ford of railroad ballast and derailment foundations plaintiff’s land); Co., An R. 318 Mo. 300 S.W. onto v. Wabash flood waters (unprecedented Minneapolis, St. P. & S. M. flooded 2d 769 rainfall derson S. depot railway baggage Minn. 179 N.W. station and ruined R. bog plaintiff’s luggage contents); (sparks set afire locomotive Kennedy house); States, D.C.M.D.Ga., plaintiff’s spread Brewer United *9 Missouri, F.Supp. (whirlwind uprooted 358 Mo. 889 life Electric Co. 108 Union (siltage guard’s sun caused umbrella drove umbrel 756 216 S.W.2d heavy plus rainfall wire the head of a dam la’s steel into of a visitor maintenance beach); damage plaintiff’s prop Shephard v. Bell at the Graham water caused Cal.App.2d Inc., Jansen, Service, ; erty) Aviation 56 N.M. 243 Kell v. 53 (airplane neg (miner negligently a allowed P.2d 603 torn loose from 1033 127 P.2d single ligently mooring by gale plaintiff’s dam, mining tied a debris block wind); subsequent Dist., bridge; Charvoz v. car Bonneville Irr. flood ditch (land bridge Utah, damaged P.2d 780 ruined 235 ried debris way Light Grieger, giving negligently it); & a Power Co. maintained Inland during heavy Company neg rainstorm); (Power Cir., canal a Public F.2d 811 9 91 Sonnagerra, dam, ligently Co. v. water thus Service 208 Okl. released injured plaintiff’s (plaintiff injuring sag raising P.2d 169 a flood crest and ging power weighed property); line which was Telluride Power Bushnell v. down (fire spread by sleet). Co.,
HJ caught prevent See which” him from liable.”11 it “would burn if it fire Refining Co., Cir., reason.” Pease v. Sinclair Hogan 185-186; v. Comac F.2d facts, On such defendants Sales, 216, 219, Inc., App.Div. duty purchaser owe a dangerous to warn a this N.Y.S. affirmed 271 N.Y. magnesium. attribute of the 2d 695. Torts, 388(c) Restatement of and Com § g.14 lightning gave If, ment policy, Defendants as such a matter of warning. “intervening Instead, cause,”12 a ob bathinette was de foreseeable catalogue scribed in the Sears Roebuck viously be less so. a household fire cannot “practically indestructible.”15 Absent an in It does not constitute so unusual appropriate warning, the sale of the jus tervention “the court’s sense fraught bathinette was “an act with fore thought of ask tice will shockedat the peril” purchaser seeable and to ing respond in for the defendant to anyone (like here) else the wife who therefore, jury” in such it will expected present to be case, a direct verdict for him. purchaser’s dwelling when a fire oc colleagues My say no evi- there was curred. ordinary dence that “in use”—“in comprehend To the nature of defend- way to have it used” defendants intended negligence, ants’ one has to ask come in contact —the bathinette would whether defendant could have sold their enough it to catch heat “to cause bathinettes, if there had been affixed an “ordinary” use fire.” But bathinette’s easily-readable saying, notice “If a fire dwelling plaintiff’s. is in like Such happens your home, this bathinette exceptional, is not unusual. Patent- use probably dangers great- will ly, increase the ly, intended that use. defendants magnesium may ignite, because the reasonably that defend- could conclude causing spurts unusual of flame which anticipated, should as not at ants peculiarly extinguish.” will be difficultto breaking unlikely, all out of My colleagues say liability turns dwelling such while the bathinette on whether or not the bathinette was “in- use,” “ordinary and that defendants herently dangerous.” But, leading (or known) that knew should have remarks, commentator “It is difficult to easily presence the bathinette could why understand a number of courts still ordinary apart- house or transform cling to the distinction between ‘inher- For, my fire-trap. ment into a col- ently dangerous articles’ and other arti- leagues admit, would be “the discussing liability cles in of both dangerous than would wood more a fire manufacturers and vendors. Professor making or some other substances used Judge Bohlen and Cardozo [in MacPher- higher bathinettes, of its burn- son v. Buick Motor 217 N.Y. intensity ing temperature” and “the 1050, L.R.A.1916F, long ago N.E. 696] “substantial,” context, in this 11. The term Eldredge, cit., loc. ambiguity. for its has been criticized duty 14. The of a manufacturer or vendor give warning analogized Co., 1894, has been Tel. 12. In v. Wisconsin Jackson duty possessor 430, 432, of land to 60 N.W. 88 Wis. dangers. warn business visitors of latent said: further the court “The L.R.A. Prosser, argument Torts is made that the stroke of God,’ lightning the ‘act of respect, the instant case is like *10 Certainly responsible. a stroke one is no Works, App.Div. Art Crist v. Metal God;’ lightning an of ‘act but that of 114, 496, 243 N.Y.S. affirmed 255 N.Y. presented, here or 624, 341, by my colleagues, cited negli another e. the rather gence element —i. plaintiff where the recovered. question, man —is added to the of scope.” materially Eldredge, cit., alters its 16. loc. 247. * * ”17 weights fallacy (or carpets) showed the of it. attached to com So, too, typically, posed strips, does one the cases of thin of will be my colleagues cite.18 immune from successful suits them, men, if, fire, even women or a negli legal Today, province in this of children burn to death those gence, welfare, considerations of social or strips produce the of sort intense flame should) value,” (and “social affect do plaintiffs here con encountered. Or liability the decisions as defendant's to a containing wall-paint sider a a substance duty plaintiff. a Can he owes to which, conflagration, will release anyone really Mich think the believe —or poisonous ruling colleagues’ My fumes. igan Supreme it will Court believes —that encourage vending will tend to of .promote important value” to “social perilous such commodities to human lives. liability purchasers, protect, The social interest20 in the trade free of which, of an article sellers makers and goods, legal the need to avoid rules tend fire, hazard far create a of will case ing unduly paralyze business initia exist, .greater otherwise a tive, fostering legitimate and the (or be) they are should hazard of profit motive, do not extend that far. purchasing of which aware but My colleagues Michigan ignorant? kept cite case. What householders support cases cite do not policy a their inheres in such rule? sound social position. Gray, Cir., ruling In Yet, my colleagues’ Coleman v. becomes if 268, 265, 192 F.2d court precedent, held and vendors manufacturers justified sell, who, instance, evidence verdict make and without injured plaintiff weather-stripping defect warning, iron for windows exposition theory cites, cinct Eldredge, cit., and its de 247. He 17. loc. velopment, Jurisprudence Patterson, see Motor Buick MacPherson v. addition (1953) 283-284, 459-464, Bohlen, Co., Torts 518- The Law Studies 527. (1926) 109,131-137, Phila and Ebbert v. delphia 198 A. 330 Pa. Electric Any “balancing” “weighing” precise Prosser, (1941) 678. Torts 323. impossible. See See of such interests 526-527; Lepaulle, Patterson, supra, Cir., Corp. Maas, v. 18. & Barton Reed Comparative Law, The Function 359, 361. F.2d Critique Sociological With A Juris 292; Torts, § 19. Restatement See prudence, (1922) 838, 35 Harv.L.Rev. Negligence, James, L. 3 Utah Nature of 844; Cohen, M. R. Reason and Law Conway 283-287; (1953) 275, Rev. (1950) 96-97; Lee, cf. Social Values Cir., O’Brien, 2 111 F.2d 612. Philosophy Law, and The 32 Va.L.Rev. (1946) 802, ff; Conway O’Brien, 283 Com- §§ 20. Restatement 612. See also 293a, (and a), c, Comment 292a ment Holmes, Law In Science—Science In Introductory Note, Vo. 3 294; cf. Ch. Law, (1899) 443, 12 Harv.L.Rev. Collect Torts, pp. 537-538. of Restatement Papers Legal (1920) 210, 231, ed portions Re other Those balancing As theory to the illusions bred meta- adopt statement phorical "weighing” imponder- theory interests,” notion of competing “social ables, Corp., Geny, Bentham, Jhering, Larson Ann see v. Jo Cab developed Cir., 209 F.2d “jurisprudence-of-interests” the German suggests However, (supra, Cardozo, Holmes, Patterson Roscoe school, 522, 527, 274, 282-284), judicial Friedmann, Legal cf. Theo e. Pound. “policy-weighing” 228-244; articulation “balancing 1953), ry (3d The Science ed. 102-103,123, interests” does (1917) serve Legal Method make the courts Jurisprudence more reflective in con- 131; Interests triving, revising applying legal 1948); Holmes, (transl. Law rules. Common Holmes, Holmes, Law, 35-36, 95, See also The Path (1897) 457, Law, 10 Harv.L.Rev. Collected Le- Harv.L.Rev. of The Path gal Papers (1920) 167,184-185; Papers Holmes, Legal Collected Law, Law In 167, 184; Holmes, Science —Science In Law In (1899) 443, Legal Law, Harv.L.Rev. Collected 12 Harv.L.Rev. Science—Science (1899) Papers (1920) 210, 238-239, Papers (1920) Collected.Legal 238-239, suc For an excellent *11 ignited appeared escaping vapor was the and burned it that the defendant when gun proprietor Corporation v. ammunition fac- & Barton her. Maas, Cir., In Reed already- 361, tory adjoining factory was an sustaining lot, noted, court, a verdict unfenced which was and some “inherently playground rejected plaintiff, time had boys; terminology. plaintiff, dangerous” v. Art small Crist other placed Works, App.Div. 243 N.Y. in this lot defendant stored or Metal gunpowder prim- 175 a cake of and a cannon 255 N.Y. S. affirmed ; boys pow- defendant, er a manufacturer that one of the found the N.E. primer proceeded toy advertised them as der and to extract revolvers who doing and, “absolutely harmless,” it, held liable the brass imbedded so, exploded, injured. a revolver it from such and he was Ob- because the flame viously, ignited expose in which Claus costume the defendant could not a Santa young plaintiff was dressed. children a risk. He knew the infant to such boys playing defendant be the were in Court said that the the habit knew, dur- known that children this lot and he deemed to have bound to dangerous ing know, or at other the Christmas season character of the garbed probably applied in in- material if times “would be force were to it.” material,” flammable and that therefore Perlberg, App.Div. In Noone v. go proper jury there was a case 49 N.Y.S.2d the defendant man- negligence. as to defendant’s evening-gown ufactured with an over- Laboratories, containing sizing, In Beickert v. M. 242 skirt G. nitro-cellulose defendant, highly N.Y. inflammable character. Plain- manufacturing motion-picture films, put tiff, bought gown who from a retail- er, scraps party films in unused of inflammable wore at a New Year’s Eve large walking them in container and burned a a club. While across the cock- infant, lounge plaintiff, caught club, vacant lot. The set tail fire, her dress scraps up blaze, plaintiff fire to some the unburned he flashed injured. lot, seriously found in the and was The was burned. The trial court pages 174-175,151 jury court said 242 at plaintiff’s N.Y. set aside a verdict page N.E. at 196: “The facts the in- favor and directed a verdict for the de- stant upper case do not show that the result or fendant. court reversed with cause of the could judgment plain- accident have been rea- directions to enter sonably expected by Although proof the defendant. It tiff. there was no right had a to burn the films in the va- the dress had come into contact with a storing lighted cigar cant lot. It cigarette, was not there the court said: person reasonably films. No pected could be ex- “The manufacturer must or should evening-gown to foresee that while the films known that such an would pieces burned small parties worn to dinners and cocktail gather large persons carried into the air and later settle where numbers indulge smoking.” many ground; they picked would be up by boys small who had not been in- Even were the New York decisions out there, away, vited carried and then either generally step prevailing with the rule design lighted. accident or To hold they elsewhere, should not control the de- defendant liable under such circum- colleagues my tacitly cision here. So ad- contrary great stances would be citing the Restatement mit— weight judicial authority, and con- arising but also cases in the First and trary to reason and common sense. Tenth Circuits. * * These results the defendant was anticipate.” light not bound foregoing, The court dis- In the I think tinguished Bannerman, judge charging Travell v. 174 the trial erred N.E. N.Y. as follows: must find for “There defendants if the *12 ignited “it became bathinette previously- subjected from a to flames fire.” started
RICHARDS LIFE INS. MUT.
PHOENIX al. CO. et 14923.
No. Appeals Court States
United Eighth Circuit.
Aug. Sept.
Rehearing Denied testimony expert alloy” ignited 1050°-1100° can be at introduced 21. Defendants mag- (i. e., alloy” but made no mention “mf Fahrenheit that to show bathinette) very alloy” alloy sheets “mf thin used in the fact nesium airplane temperature. ladders, extensively ignited in fire at a lower used heavy parts heaters, toy cowling, that while a did indicate Nor hot-water only magnesium casting might (the with a griddles sold burn latter griddles magnesium point contact, through cautionary a thin at label higher ignited subjected magnesium heat once extrusion not be should expert tubing Fahrenheit). pj'rotechnics The tes- cause did than 900° alloy” baby timony “mf can bathinette. indicated subjected safety object areas Plaintiff did not to admission of used think, quite testimony was, physical I defendants’ evidence heat. heavy properties magnesium the uses covered sheets since irrelevant considerably alloys although castings, testimony such evidence was involved magne- misleading. If there were the .049-inch-thick irrelevant than thicker legs. trial, concerning tubing I in the bathinette think evidence new sium necessary combustibility heat needed should be and the restricted to the time ignition alloy” properties magnesium bring will de- of “mf in thin extru- pend size of the sions. thickness on the exposed Plaintiff, Hentschel, piece Because of away to heat. Jerome was asked metal inability experiment heat from his counsel to to conduct describe an concentration, performed by point sections a chemist thin to test the com- bustibility ignite piece magnesium tubing faster will heavy, When from the burned sections. taken solid bathinette and to experiment. additional the results of that evolution describe there starts judge objection metal, sustained an oxidation of heat ground plaintiff qualified. burning becomes continuous. and “Magnesium, I ruling Handbook,” erroneous, think this American since (1923) p. plaintiff Corporation Magnesium was asked to relate his ob- Technology Mag- Beck, He need servations. not have qualified Alloys p. chemist Its order to state nesium what experts admitted that “mf observed. he Defendants’