Hubbard-Hall Chemical Company v. Charles L. Silverman, Administrator
340 F.2d 402
1st Cir.
1965
Check Treatment

*1 402 from Hellenic Gulf for oil is af- left due to should have been factual area entire liability firmed, and costs interest its determination. adjudi- to and their amounts will have be alleged does oral The contract again. case is cated The reversed Frauds within Statute of not come trial. remanded for new agree oral duration of the contemporaneous the col

ment was agreement both were lateral written year performed within —cal is of Frauds The endar 1959. inapplicable Judge Statute As reason. another out, pointed an oral contract Levet rights affreightment under the creates divested cannot be maritime law by CHEMICAL HUBBARD-HALL COMPA- contrary Co. law. Union Fish state NY, Defendant-Appellant, 112, 308, Erickson, 39 S.Ct. 248 U.S. v. v. (1919); American Central 63 L.Ed. 26 Shipping SILVERMAN, Administrator, L. Charles Trading Corp. Mercantile v. & al., Plaintiffs-Appellees. et Co., F.Supp. Ship Repair (E.D. 779 No. 6398. N.Y.1947). claimed oral contract Appeals Court of something United States here, involved have been made First Circuit. agreement place car than a mere more goes 25, Jan. It clear aboard Hellenic’s vessels. cargoes carriage ly contemplated of the high Baltimore Steam- seas. See (4th Patterson, 106 F. 736 Packet Co. v. 1901). Cir. guide, in that a sure “It is believed contract, is to found matters has cause of action relation which the great agents ship, maritime

to a highway enterprise, and to the sea as a Benedict, Admiralty, commerce.” (6th 1940). ed. § present case was The contract performed Cf. made on land to be at sea. Beers, 393, People’sFerry 20 How. Co. (1858).

61 U.S. 15 L.Ed. 961 was sufficient ad Since there agreement, oral

missible evidence of an improperly alleged, below court complaint failure to dismissed the light prima make out a facie case. made, disposition it neces sary questions to discuss other raised appeal. larger

If a sum is shown to be due found Hellenic than that Gulf Gulf, due from further con- Hellenic to given sideration will have to

trial court to the matter of interest and costs; therefore, while the trial court’s principal amount

determination *2 is a manufacturer and seller

Defendant Parathion dust. Defendant 1.5% poison- labeled its its character, ous as follows: May Be If “CAUTION: Fatal Swallowed, or Inhaled Absorbed Through Rapidly Skin. Absorbed Through get eyes Skin. Do not or on skin. Wear natural rubber gog- gloves, protective clothing and gles. im- case of contact wash mediately soap water. with and respirator type a mask or Wear of a passed Department U.S. Agriculture parathion protection. for Keep unprotected persons all out of operating vicinity areas or where may there of drift. Va- cated areas should not re-entered drifting until insecticide and volatile dissipated. residues have Do not contaminate feed and foodstuffs. hands, Wash arms and face thor- oughly soap with before water eating smoking. Wash all con- clothing soap taminated with and hot water before re-use.” Mass., Frederick, Boston, Paul R. with In 1957 defendant forwarded to Badger, Parrish, whom & Fred- Sullivan Agriculture Department ap- U.S. ap- erick, brief, Boston, Mass., on was Insecticide, plication, under the Federal pellant. Fungicide, Act, and Rodenticide [codified Mass., Louison, Taunton, Melvin S. through 135k] 7 U.S.C. ch. 6 §§ Boston, Hurley, with whom J. Walter registration dust, Parathion 1.5% Mass., brief, appellees. was copy above-quoted and annexed a Judge, ALDRICH, May 20, Department Before label. Chief 1957 the registration WYZANSKI, granted SWEENEY and District the understand- with Judges. ing that in ‘WARN- the label “the word should for the head- ING’ be substituted Judge. WYZANSKI, District ing word ‘CAUTION’.” brought injury In this case bags Defendant sold of this Parathion diversity jurisdiction of the within the Viveiros, operator dust to of a farm Court, is- the chief United District States Taunton, employed He Massachusetts. evi- sue is whether there was sufficient plaintiffs’ the em- intestates. Both of alleged negligence of the dence of the ployees of Puerto Rico. One were natives insecticides manufacturer of English; could other could read some permit liable for the to hold it August 1959, any. read As of death of decedents of whose estates two year, latter former had for one been plaintiffs are administrators. employ. years, Dur- for two in Viveiros’ ing they, employment, in their most their On the view of the evidence seeking capacity hands, had plaintiffs, farm as laborers and favorable to are who dusting often used various chemicals sustain returned their verdicts They favor, spraying. with had dusted these could reason- are what occasions, ably Parathion on have found to the facts. several Aug- ending times in week four believe that those for deed whose use the 14,1959. supplied ust will realize its dan- gerous condition; (c) exer- fails to knowing Viveiros, char- cise, commensurate the risk in- and the other insecti- acter of Parathion volved, reasonable care to inform them *3 farm, kept cides used on his available adequate warnings instructions or its of employees gas masks, his rubber rain- dangerous condition.” says coats, boots. and rubber Viveiros adequate warning, and his he told the intestates other labor- “An members of the including jury, bring ers Para- that the chemicals is one calculated to home to they dangerous, reasonably prudent thion and a person, were that if a reason- ably prudent did fol- product, not use the masks and coats and user of the na- the they likely danger low die. ture instructions were to and of prod- extent the plain- But it is to borne in mind that uct involved.” being intestates, dead, tiffs’ were unable Then, having he reminded the that deny statements; to confirm or and those commenting “only was on the evidence the a statements themselves came from advisory capacity”, Judge in an Ford person was, court, the who in lower of jury’s drew to the attention the caution- parties against plaintiffs’ the defendant ary label defendant had its affixed 'to claims. product, informed them that if defend- August substantially complied ant had the 1959 the to “with intestates went requirements dusting work of the Federal with Parathion. At Insecticide 9:15 * * * Act A.M. it is some Viveiros them evidence that observed without * * * they care”, coats; they masks or exercised but were then rest- reasonable ing eating. day plaintiff’s reminded that and them After a full of counsel dust- suggested ing, had both “that there a were sick. After should be intestates they warning”, skull and P.M. on in a crossbones the were taken semi-coma- (certainly rights and hospital. They tose then well condition to a died within his making judge, as immediately a trial almost but after arrival. There nonetheless fairly adequate position was clear his in the evidence that each case liability) issue of upon ques- the cause of asked the death was the effect the * * dusting *, having them tion of whether Parathion in defendant used “should operations example, put on the a coffin Viveiros farm on the on the notice?” day of their death. Judge charged Thereafter Ford the respect to charge issues characteristically of explicit contribu- his tory negligence. In the jury, Judge course of do- to so the Ford drew to their at- ing he told them: “You alleged could find mem- tention that each had jury, you bers of failing say the and I negligent do that defendant “was you should but tributory negligence could find it properly, openly to con- conspicuously to you a parathion products label find that its said so as to user, deceased, inherently here the of sufficiently anyone an supplying warn or us- dangerous product ing parathion parathion such as the inherent adequately were warned of the risk judge its use.” The then a noted that * * * provided volved in its use and with ade- supplies manufacturer “who quate protection, pro- product failed to use the subject for another to use is li- against dangers tection fail- ability and the supplier to those the whom would protection proxi- ure to use the expect was the bodily product, to use the harm injuries.” mate cause of their caused “the use ain person manner for Responding Judge which Ford’s accurate supplied, whose use it is if the manufac- law, admirable instructions of but (a) declining turer supplied : from the knows facts to follow the rather hints broad chattel, judge’s him advisory that comments on likely dangerous evidence, (and undoubtedly for the use for appreci- supplied; (b) ating Judge it is probable has no why reason reason Ford, taking general verdicts, argued (Fla.), instead of 103 So.2d 603. Nor is it jury special questions,) enacting Insecticide, laid that before the Federal verdicts, jury, special Fungicide, Act, Congress in its answered and Rodenticide interroga- following occupied “no” to each of the had field of li- whole civil ability private parties : tories between in tort negligence, actions founded on so that Hubbard-Hall “1. Did governed federal rules of law such actions Company reasonable Chemical exercise and, by supremacy virtue of the clause giving care the deceased Velez-Velez VI, U.S. Constitution Article ousted state adequate Ramos-Sanchez coverage. law from its area of In- normal nature Parathion assumed, deed all counsel at our bar instructions as to its use ?” do, contrary; is, we we have all “2. Did either Manuel Velez-Velez *4 proceeded premise that, on the defend- Jaime cir- Ramos-Sanches fail under the product having impact ant’s in had its or- of an cumstances to exercise the care upon plaintiffs’ intestates, Massachusetts dinarily prudent person in the use of the governing the law is the local common Parathion ?” of law this Commonwealth. jury damages; The also assessed Judge special whole, on the verdicts as a if Even it be con assumed that judgments plaintiffs, negligence tributory Ford entered is an available de appealed. from which premised defendant has fense in an action leged al the duty plain breach of a to warn the appeals The must be dismissed. tiff, point doubt, not free [a See jury opinion We of that the are Hart, Liability: Dillard and Product reasonably could that de have believed Duty Warn, Directions for Use and the ad fendant should that its have foreseen Virginia (1955),] 41 L.R. 177-178 mittedly dangerous product used would be it cannot be ruled aas matter of law that among by, others, plaintiffs’ persons like defendant, on the in evidence this case be laborers, intestates, who farm of were yond challenge, effective maintained its reading ability, limited education proving plaintiffs’ burden of intes pre in the that a even it were negligent contributorily tates were in De cise form of label submitted to the the having not used masks and raincoats. partment Agriculture not, be of would convincing Defendant had the burden of or cause of its of a skull and bones lack the that the intestates had received symbols comparable hiero other or warnings adequate oral from Viveiros. glyphics, “adequate instructions or sure, gave To be he said he warn such warnings of its [Parathion’s] ings. party. But he was an interested condition.” jury may The credited Lis tes have timony. they not, If did then defendant given by approval The label the proving failed con to bear its burden of Agriculture Department merely satis- negligence. tributory Congress by fied the conditions laid down shipment inter- for the of the in Judge Ford to have While seems Congress nor state commerce. Neither thought pre- that defendant deserved Department explicitly implicitly or judicial vail, he in the exercise of a sound Department’s approval .provided that the discretion, his did not choose to exercise corollary of the label carried with it as a prerogative to set aside the verdicts as proposition met that defendant had against weight of We the evidence. higher possibly of due care ;the standard judgments upset there- cannot entered ap- imposed torts the common law of j alleged ground of on on want of suf- plied under local state of Massa- law ficient evidence to sustain them. negligence. in of tort for chusetts actions Judgment affirming Cir., Boyle-Midway, Spruill will be entered 4th v. Cf. Drug Wait, judgment 79; Tampa of the District Court. F.2d 309 v.Co. explained Judge meant whether that this (concurring). it ALDRICH, Chief created “the facts which knew testates opinion sub- court’s in the concur I * * * appreciated the measure, one caveat. but with stantial injury involved that was risk of question need Strictly, think I do answered in such facts.” The negligence. contributory If negative to each. as warn, ade- duty fails party has a has found that the found perform, could be quately warning. adequate form of did not use an may the other here, be that nonetheless it knowledge did not the intestates It has found that possessed party in fact warning. has duty The defendant fact receive proper would exercise complaint. present no conveyed. can event there In such have recovery. R.R. Central York no New Cir., 1964, Moynihan, F.2d might, fact, under- have A given the defendant notice stood the might inadequacy, have spite warning from other sufficient received proof However, the bur-den sources. *5 upon to show defendant should be knowl- plaintiff such did have ANDERSON, Joseph Trustee Bank D. very im- edge. the law reason that Goldsberry, ruptcy James T. give particu- duty poses in a notice Plaintiff-Appellee, that, assumption is the lar case commonly known not CO., MERCURY INDEMNITY PAUL ST. users, Cado- is needed.” See “a Com Fire & Marine Insurance St. Paul 1935, Co., gan Consolidated Gas v. Boston Mercury pany, Paul Insurance and St. 496, 500, That 195 N.E. 772. 290 Mass. Defendants, Appellants. Company, common plaintiff outside the fell No. 14596. burden, be the defendant’s class should Appeals United States Court of plaintiff’s. not the Seventh Circuit do cases the Massachusetts While 19, Jan. 1965. explicitly appear with the dealt to have Rehearing 26, Denied Feb. situation, proof ob- I do in this burden Carpenter- Thornhill v. serve that 593, Co., 1915, 220 Mass. Morton recovery permitting fail- N.E. dangerous character- ure to warn of the remarked, at of a the court istics 598,108 p. p. N.E. at 492 that informa- had” the

“is not shown to have had failed

tion the defendant have disclose. This must meant by the defendant.

shown principle no

This difference in leads test for in result. Even difference contributory negligence might, in some simply instances, than be more severe possessed whether a user in fact

knowledge proper which a notice given him, would have put special ques- court here to the inquiring tion each intestate as- whether charge injury. sumed the risk of In its