Simpson Timber Co. And Grace Line, Inc. v. Ezra Parks, Simpson Timber Co. v. Grace Line, Inc.
369 F.2d 324
9th Cir.
1967
Check Treatment

*1 Nevertheless, appellant’s alle himself from Selec- “disaffiliated” gations prosecu to a refused to are not a defense and thereafter tive Service cooperate any respect. report tion failure to for his Board induction with August, 1964, appellant classified into the Armed and his evidence was Forces In Subsequently, Regardless appeal. properly he was excluded. 1A and did might present proof appellant report induction on ordered January 11, Appellant acknowl- demonstrate the correlation between edged receipt letter notice but Selective Service and our nation’s efforts of this Vietnam, report as matter law the con did not ordered. gressional power support “to raise Appellant for violation indicted provide armies” and “to navy” and maintain 462, U.S.C., Appx., Section tried quite matter is a distinct from the guilty. reversed the found This Court use makes those Executive judge the trial first conviction because qualified who been found and who had appellant allow sufficient failed to time have been into the Armed inducted obtain counsel. United Forces. the President Whatever action (2 Mitchell, 354 States v. Congress sanction, order, or the Judge He was retried before impair power this cannot constitutional jury. and a The wilfulness Clarie Congress. report his failure to for induction was we need not consider whether Thus again apparent, and he convicted too by appellant raised substantive issues imprison- years sentenced five judicial appropriate can de- ever be appellant ment. claim At trial termination. gans, v. Ho- See United States sought objector to be conscientious 359, Cir., 369 F.2d decided produce that the war evidence show this on November Court being in vio- in Vietnam was conducted Affirmed. lation of various treaties to which signatory United is a and that States system being op-

Selective Service military adjunct

erated of this Judge out all such

effort. Clarie ruled ruling

evidence as immaterial and

assigned error. citing government, of cases a line Line, SIMPSON TIMBER CO. Grace States, beginning Falbo v. United Inc., Appellants, 88 L.Ed. 305 U.S. S.Ct. v. (1944), preclude consideration PARKS, Appellee. Ezra appellant’s of his failure claims because his administrative remedies. to exhaust CO., Appellant, SIMPSON TIMBER But, appellant does not seek relief v. empowered Service Selective LINE, INC., al., Appellees. et GRACE grant, we will assume these cases are No. 19673. point. Rather, he seeks declara- effect, tion, in must the Servicé Appeals United States Court pointless cease to function. Ninth Circuit. require press appellant to in this case to Nov. he claims a Board which claims before 6,1967. Rehearing Denied Jan. illegal. Similarly, appellant asserts merely Service, the con- and not Selective Vietnam, illegal, duct of the war pre- not to be

his defenses would seem

mature. *2 permit along

chocks one side to fastened forklift stack to be handled appeared completed tractor. The bundle wrapped to consist of solid wooden protective When cardboard cover. rested on its chocks the bundle *3 by the window concealed well created through vertically openings the extended top manu- from The bottom. gave warning card- the facturer by well, notice board cover concealed Printing package otherwise. the package identified the contents on the doors,” the card- and stated that as “fine removed until board cover not to be unpacked for installa- doors were the Mautz, Roberts, Kenneth E. Simpson doors tion.1 delivered the Kinsey Souther, Spaulding, & William- exporter, exporter. for the The the dock Wood, son, Brooke, Wood, R. John here, shipper ar- in fact the who was Or., Portland, 'Tatum, Brooke, Mosser & convey ranged Lines, Inc. that Grace appellants. ships, of its the doors in one overseas Wood, Wood, Brooke, John R. shipowner and a contract with the made Tatum, Brooke, J. stevedoring Mosser & Nathan company experienced an Heath, Heath, Gray, Long- Fredrickson & cargo. ship’s the Pozzi, Philip Levin, of Levin & Wil- by A. employed the Parks was shoreman son, Portland, Or., appellees. stevedoring company. The bundles top- until loaded without incident BARNES, CHAMBERS, Before layer sought placed in most to be MERRILL, JERTBERG, HAMLEY, Dunnage square of the hatch. BROWNING, KOELSCH, DUNIWAY placed upon of doors. the bundles Judges. ELY, .and Circuit precisely and did not Since the bundles firmly expert square, fit within the ELY, Judge: Circuit top-most loaders chose to stabilize the cargo longshoreman stowing A layer by placing of flour between sacks injured stepped through when he In of this de- the bundles. furtherance packaging The on a bundle of doors. cision, stepped bundle Parks Company Timber manufactured weighing carrying one- of flour sack filling the doors. In an order for an pounds. cover cardboard hundred The exporter required to it was weight, and the did withstand the shipment doors for overseas. The forty-two fall inch resulted. glass. openings were cut to leave longshoreman packaged action in The manufacturer the doors The filed forty-two Oregon shipowner high, a stack The inches state court. aligned openings as defendants. window so that well and were named defendants, by Upon petition was formed. A cardboard cover was both wrapped District Court around the center of the stack removed to the action was leaving (28 1441), jurisdiction edges the solid doors ex- where U.S.C. concealing cavity. diversity posed of citi- the interior the basis of rested on requisite zenship amount in con- then cardboard-bound stack was and the ship- straps troversy. bound with steel and wooden U.S.C. § two participat- packaging having one doors for ex been sustained This method shipment transport port by Simpson prior of such a used its been many shipments prior Parks. thousands of to that sustained overseas injury doors. is no record of an There stevedoring stevedoring subjected interpleaded because owner knowledge. practices longshoreman’s employer) of which had no company (the objecting position in party Each of the It reaffirmed defendant. third given jury against to an claims instruction three defendants was tried follows: main action the other. The having agreed jury, before you preponderance “If find indemnity would be de- claims you before the evidence jury following judge termined knew, or Company Timber a verdict verdict. returned care should the exercise shipowner. have known workmen walk granted ship- judge The district packaged doors, you on said indemnity Simpson and de- frorp owner pack- further find that manner of indemnity from the steve- nied Simpson aging doors created a doring ship- company. Simpson reasonably pru- situation *4 ju- appeal. derives its owner Our court dent under same or similar 1291. risdiction from 28 U.S.C. § supplied circumstances would have weight some reasonable form of bear- appeal panel A of our heard this ing support so that a over the hole court. One of the and affirmed the trial through step panel petition workman could A for rehear dissented.2 granted, and deter was the court hole or cardboard into the would appeal heard danger mined that should be warned workmen of the who en banc. might man- walk on the doors in some ner of the hole underneath the card- which There contentions are three means, and board in some reasonable principal have commanded our attention. sup- defendant failed either to urge Simpson shipowner Both and the weight ply bearing support judgment that award the verdict and warning, then or some reasonable damages Simpson excessive to Parks.3 failure, failure, such if was there presents (1) points, main that two other negligence part of the would be on the judge denying the district erred its (Em- Simpson Company.” Timber (2) mistrial,4 an motion that phasis supplied.) given jury preju- instruction dicially erroneous as to it. ma- It is this instruction which jority errone- determines to have been majority Simp- here holds that they appear, it ous. Under facts as point (2) and re- son’s is well taken principle cannot which we embraced remand, Since, upon quires reversal. accept. retrial, is no need be a there must to review the contentions as to events permitted The instruction may not reoccur. Simpson imposition liability upon given, Simpson, After had been should determine that evidence dock, Simpson for a verdict doors to moved directed it delivered its before argued practice of walk knew of the stevedores’ in its favor. It that it was cargo. ing upon packages under This conduct floor, package proper. or as to stresses which its Used as a improved infra. had its manner See first sentence footnote immediately packaging doors. hospitalized a result Parks were not declare a mistrial. that the court moved expense injuries. total medical judge commented as The district later $76.25. for his treatment was He point, that “So I will have to take damages $80,000. awarded if it is chance with the consolation my beginning basis, opening it wasn’t In his statement at the reversed on that jury, trial, attorney told the Parks’ fault.” accident, following effect, trap. surface, shipper obliged If of doors was a a manufacturer or the bundle not, If delivered the bundle with be aware it and is it would knowledge hardly likely possible be walked seem it would that he could suc- cessfully upon, reasonably held maintain that he exercised rea- then duty negligently sonable care. have breached Simp- stevedores, including Parks. problem, then, generally Our con vigorously urges son there was cerned with the extent finding support sufficient evidence to upon Simpson, rested as manufacturer prior of the work- it had packager, to those whom ing practice. Upon review of the careful expect would handle record, concludes exportation. in the course Simpson’s position respect in this is not way, judg Put another to affirm the taken. shown that well against Simpson require ment as plant City had a of Portland and question, affirmative answer to the area. For a warehouse in waterfront packager of an annually 16,- years Simpson shipped inherently danger article which is not 18,000 (less than doors overseas justly longshore ous be held liable percent volume), plant four of its and its injury, man who sustained while manager visited the warehouse aver- vessel, aboard a as a result age every days. of once week ten using peculiar for a plant manager that he had testified purpose intended, anticipated, been on dock seen holds of known manufacturer? *5 ships, and how that he had “wondered” would, An affirmative answer cargo portions of hold was moved to turn, principle, establish a too far-reach away from From cir- the hatches. these application, and onerous in that one cumstances, with inferences packs shipment who an item for is bur might therefrom, which be drawn legal duty dened with a ascertain majority’s could, trier facts customary working practices of steve opinion, find for a deter- sufficient basis any port purchaser, dores in which the did, fact, mination transporter might shipper, select knowledge of is to be the what said Accept and embarkation. working practice longshore- common proposition require ance of this cargo. engaged stowing men unprecedented extension of doctrines however, instruction, also author- impose liability upon manufac fixing upon ized the departure turers and a from those rec Simp- should determine ognized require tort rules which no more “in son the exercise of reasonable care packing than that a manufacturer his should have known that workmen goods shipment ordi shall exercise * * packaged walk on said nary care eliminate hazards which are Implicit princi- in the instruction is the known5 to him. ple, in- believed our to be authority There is no which the ma- correct, had the jority affording interpret is able to working prac- to make as to the precedent imposition the ex- prod- tice of those who handle its applied tended which was uct. Long es- the case hand. stevedoring practice If a common ex- especial principles tablished are particular port, difficulty justly ists applicable products in so-called learning should be encountered in of it. product cases wherein the is permit sponsibility upon If a hazard is so obvious rests one to whom anticipated no doubt that one could have the hazard “known.” See 54 Geo.L.J. it, then he be held to same re- 1441 & n. 9 herently McCready principle, These sound- or harmful. is a sensible sound, ly concepts principles cannot are based traditional reasoning duty. guides appropriately applied legal where- to case Its ordinarily is such an determination here. doors, harmless item product case comment. It One other deserves ignite, explode, which cannot Cohagan Co., 317 S.W. v. Laclede Steel strike, poison or cause skin diseases (Mo. 1958), defend wherein 2d which, doubt, without was not intended packed steel steel manufacturer ant used, ultimately time, or at wrapped in strips were bundles floorway. places At wire. their with steel three one in which There case destination, unloaded were the bundles analogous closely to these facts On the crane’s a crane. the use of Mc which meet us here. That case placed were cables hooks which Cready v. United Iron & Steel wrappings at wire two steel under the 1959). There, the be lifted. the ends the bundle of steel defendant a manufacturer being lift of the bundles While one window casements. While casement it had been on which ed from a trailer being placed building under into a consignee, transported the wire to the construction, iron-worker, while wrapping broke. of the bundle one end shortening flanges outside practice lift There was evidence casement, hand used its crossbars attaching a crane’s cable bundles holds and footrests. One of the cross wrappings, as steel wire hooks to the stress, bars did withstand of the custom was evidence here death. It was the workman fell using packages as walk proved that, in the construction of build ways. manu held that The court customarily ings, iron-workers and com consignee’s facturer was liable monly ascend and easements descend Supreme injured Missouri’s workman. by using the casements’ steel crossbars remarked, the initial re “Thus Court footrests; as handholds and neverthe manufac quirement rule [as *6 less, held, opin properly the in our being liability] use is that turer’s ion, the manufacturer was product must be or made an article of Appeals, “A liable. Said of the Court manufac purpose it for which was may prod manufacturer that his assume or, v. Linde [McLeod tured as stated in be use. uct will devoted its normal to Co., Mo. 1 S.W.2d Air Prods. being (1927)], application And if it is safe when devoted to the thing intended use.” its of the must be normal use for which was manufac went at 454. The court 317 S.W.2d damages tured, he is not liable for in purpose primary emphasize that “the to jury resulting from or un an abnormal together to hold the wire binder was of reasonably anticipated.” usual use not *** pieces bundle.” primary of steel McCready v. United Iron & su Steel Here, at 454. 317 S.W.2d pra, (Citations 272 F.2d at 703. omit Simpson’s wrapper, purpose marked of ted.) doors,” hold doors] [the “fine together” “to protect product from dam a them and to was intended use knowledge prior window, age. If The manufac- had not as a ladder. stevedoring practice, it no in- then turer was to of the under a universal, anticipated vestigate customs, or more intended however put use a might par- to of doors would be construction bundle workers who buildings any weight, floor, ticipate however to withstand the erection heavy, might manufacturer did where be than the window casements McCready anticipate that the duty his intend or installed. had no to follow He through or product every as a ladder be used to ulti- casement would avenue Cohagan bind- principle of mate manufacturer intended use. The lifting narily When, however, ers would be as a ship- used attach- suffice. his expert ment.6 is to ment be entrusted to loaders expert carriers, hardly fits fair legal There is no reason or of force say standards to should rest compels social consideration which de upon every anticipate him the burden to parture concepts from traditional Cohagan7 product teaching McCready course which the to follow and acquire knowledge, advance, to as to duty upon a a When rests the uses which his will be manufacturer of his because subjected by working practices, reason of working practice like that perhaps unique, strange, or even easily those here, quite followed ful he simple warning it. A ordi- who fill would are handle it.8 recognized 6. We that when a Columbia Law Review “Used as treatment would floor, justify requirement surface, or the bundle of manu trap” (supra, page 327), steps facturer take learn of stevedor ing practices upon assumption the intended use of the was to provide covering protect spread that would “can better goods damage provide and not to the risk of loss.” Any walkway longshoremen. hand, floor or On the other writer of the article, wrapped Georgetown manufactured casenote in the Law Journal fragile observes, requirement, manner too withstand an unin- such a subjected persons tended use to which it “Consideration the number of peculiar practice goods commerce, reason of unknown to who varying practices, handle their packager, might trap. Here, goods become a and the distances trap only shipped enormity the bundle of doors awas be- indicates subjected being obligation.” cause the bundle was to a 54 Geo.L.J. at 1445. designed And, use for which it tended, reasoning was not or after burden arising solely ascertaining a use practices from a steve- the workmen’s doring practice justly stevedoring about which the should fall on the com- obliged pany, instructed the concludes, manufacturer was the writer “A blanket * * * * * * wrapper to learn. If application the doors’ of the strength of weight sufficient impose heavy, survive the perhaps intolera- ordinary of an man and if ble, burden on the manufacturer had made packer.” and ascertained the Geo.L.J. practice walking upon pack- stevedores’ suppose pack- 8. Let us that a manufacturer ages cargo, would it also have been re- ages glassware fine and sells it to an ex- quired anticipate that workman porter port who certain chooses a carrying walk while place export. If it should be the hundred-pound of flour sack other port of that burden, weight, of whatever packages being walk barefooted on loaded chosen, instant, pack in the ship’s cargo, longshore- should a packages square stabilize the who, following practice, man cuts *7 hatch? Would the manufacturer have the upon foot the contents of crushed the anticipate to that three or four against recover longshoremen might or five walk or stand truly ignorant who was have same time? the learned, by inquiry, practice? of the Since in our case is no evidence of imposition upon The manufacturers of stevedoring impose custom or burden, such a in of terms time and the particular weight upon packages being demanded, resources which would be floors, asked, effect, used as we are would, agree, we be “intolerable.” The apply requiring a rule the manu- majority impose will not it. not We do product pack- facturer aged insure that his be that, consequence believe of our anticipation of whatever use decision, manufacturers will remain de- subjected may by which it stevedores liberately ignorant practices of the of part ship’s cargo. it as a injuries with handlers to the handlers as majority dissenting opinions The of a result. The almost total of dearth original panel, although our publication involving withheld from Reporter, ap cases similar is an situations in the Federal indication that and other peared slip form, in 1966 A.M.C. In exposed handlers not to count- they also came to dangers the attention by of others. pack- less caused methods of (1966) See 66 aging Colum.L.Rev. 1190 and 54 which fail to take into account (1966). Geo.L.J. 1439 The writer working prac- the handlers’ unusual possible to deter nection that his con- Since it is with these claims principles part of con from mine which the two clusions were derived in ac- questioned ceptance jury’s tained instruction of the factual deter- within the light applied jury, respects. of and since one in all In the minations the erroneous, principles record, justice included this the interests the against judgment require judgments cannot that all which were Patrick, v. 122 U.S. entered in stand. See Davis the District Court be re- 138, 154, 1102, 30 L.Ed. 1090 7 S.Ct. versed and that there be a retrial light aspects case in all its expressed views are herein. which a reversal also be There must Reversed and remanded. affecting judgments conflict indemnification. claims liability Parks was Lines to of Grace BROWNING, Judge, with Circuit jury upon the determination fixed Judges HAMLEY, MERRILL, whom its vessel was under instructions (dissenting): and DUNIWAY concur reaching unseaworthy. the ver holds that a manufac- liability respect, both such dict guard against required only is turer damages, amount of and as to the actually those risks knows. The degree some influenced in have been more limited knowl- manufacturer’s applied in the which were considerations edge, duty. Ignor- the less onerous its per light erroneous instruction ance, unjustified, no matter how affords taining Simpson. The complete charge negli- defense to a judge granted shipowner in district gence ordinary in the case.1 full for the demnification judgment majority’s view, This, and denied is the amount of in the holding indemnity only claim of alternative stevedoring manufacturers, shipowner com circum- in whatever pany. apparent stances, charged from the district It are “pe- judge’s every loading practice, decision con- memorandum of however product own self- tices. The manufacturers’ in a same similar to use the product’s applied principle arrival in the This interest manner. undamaged Creameries, condition Inc. v. Hun- an destination Land O’Lakes injuries safeguard against (8th gerholt, Cir. some serves as containing by practices product of handlers which caused involved a That case imminently A manufacturer. substance. unknown bar, case, delivering product at injured such as the one was allowed rare longshoreman might injuries sustained to recover leaking practicing the substance unknown some of while a custom result shoe. case, and into his out of the container Even in the manufacturer. recovery for would also advocate We injury question necessarily re- whether doing an act while sustained covery had, whom. And can be but from necessary in the both foreseeable the in- the benefit accrue to putting to its ultimate jured cannot off-set the burden which few Co. See Steel Tube tended use. Central challenged impose principle 1953), Herzog, F.2d 544 v. many. upon the grain the lever of swather where general In the rationale recent ex- packing manner as to in such a tied of manufacturers tensions *8 creating tension, great a hidden create compli- has that been “more more and unpacked danger the ma- to whoever potentiality products harm cated chine. properly being if used sold to not laymen.” pos relatively inexperienced majority opinion suggests two The Liability Friedman, duty may exceptions. “if a Frumer & Products A arise sible permit 8.01, p. This rationale so obvious as to hazard is it”; inapplicable agree anticipated to our We that doubt that one could case. may injury articulated, rule, a handler should for an a not recover and different product inherently apply if dan which an ultimate intended user could “the gerous recover if it would be him or harmful.” strange,” “unique”, Simpson culiar” required or “even in commerce.” was to occurring “any pur- port injury exercise reasonable care to avoid might chaser, shipper, transporter walking cargo on the loading if, only if, jury Simp select for and embarkation.” found that “knew, son inor the exercise reason I able care should have known that work might packaged men on walk said doors.” The case was tried and submitted jury upon a more sensible middle was substantial evidence There ground. jury support finding Simpson that if would have learned of the risk it had jury that The was not instructed prudence. acted with reasonable obliged Simpson learn” of the “was longshoremen’s practice, no matter how responsibility for assumed be; obligation might unreasonable that packaging properly doors for ocean jury Simp- not that instructed carriage. It contracted to deliver the son must “insure that be [its] “suitably export packaged for doors packaged anticipation of whatever agreed shipment.” to deliver them subjected use to which it be Portland, Simpson’s “FOB dock” in loading ship’s part stevedores of a as city, port. The home distant cargo.” regarded workmen at the Portland docks cargo necessary practice. on Quite contrary, trial in great ship depth, The hold is of question structed cargo long- layers, must be loaded in and ordinary corporation whether “the layer walk on shoremen must cargo each any prudence have exercised [would] place stowed in load greater exercised) (that Simpson care next. The was not unusual or existing under same and circums long pervasive peculiar, but tances”3 “was under continued. duty to reasonable care em exercise ploy such prac- materials and methods If did not know the packaging tice, construction and the of the it was aware of circumstances warning danger, suggested doors or which should have was, appropriate Simp- as were use for prudence. of reasonable which it was intended and render manager son’s had seen workmen walk packaged the handling doors packaged on trucks while safe shipment in the course of plant. “had He Company Timber rea ships, the docks and seen the holds * * * charged sonably anticipation cargo with in had ‘wondered’how goods away the fact that portions would flow was moved to of the hold join majority passing ap- We over fore have been futile. The record also pellants’ (1) plaintiff’s contentions the ver- be- shows that loss income excessive, (2) $5,000, dict was mis- that a trial was and that fore earnings projected trial should have been declared because loss of future totaled improper opening $65,000. of an comment plaintiff’s statement of counsel. In a footnote to the second reference issue, majority quotes In a footnote reference to the first is- remark of sue, plaintiff judge *9 hospitalization after, and treatment would there- unless otherwise indicated.

333 (but if) Simpson if knew of the knew from the hatches.”4 risk, Simpson’s cargo export or a involved circum- packaging for that stances, exercising care, problems, informa- reasonable and that specialized problems read- have known it. regarding these tion packaging expert ily An available. very negligence pre- concept of “The lo- cargo export, for whose offices supposes that the actor either does fore- docks, testified on the Portland cated injury, risk of see unreasonable occasionally had consulted that he been could it he conducted himself foresee by Simpson. reasonably prudent Harp- 2 man.” 16.5, exporting James, er & of Torts door manufacturers Law § Other longshore- p. (1956). quote through 907 The authors Green Portland knew Ry., practice risk it involved. v. Atlanta & Air Line and the Charlotte men’s expert export-packaging 124, 441, 444, 38 131 S.C. 126 The Portland S.E. (1925), consulted A.L.R. 1448 “The foundation testified that he knowledge— thirty negligence twenty-five manufac- to such ‘is turers, custom and same it their what is deemed law to that was export package thing, opportunity, practice so doors the exercise to diligence acquire dur- safe to walk on reasonable to knowl- that would be ” loading, edge.’ part slightest Simpson’s effort on duty A manufacturer’s7 to exercise risk and would have disclosed both care extends to “risks are created necessary simple precautions chattel which course uses manager Simpson’s avoid harm5 —but reasonably an- should simply know he did not ticipate.” testified that Torts, (Second), Restatement ship cargo how was stowed aboard 395, j. A must § comment manufacturer no find out.6 effort guard against given risk foresee and if it manu- one “which II likely anticipate facturer authority enough support account”; Reason and the trial to be taken into ordinarily it question court’s conclusion it “a for the avoid to exercise reasonable care to whether antici- the maker should have cargo pated longshoremen James, supra 28.6, Harper on harm to it.” & § Simp- Simpson’s manager testified that contention has the same time. The in the Portland son had a warehouse case. The cardboard relevance covering employed each waterfront area which he visited is in evi- days; Simpson shipped dence, week or ten it from an examina- is obvious 16,000 18,000 overseas tion exhibit the thin card- of this incapable annually; Portland and that board which used was weight engaged importing op- supporting a fraction of substantial one, unburdened, erations. man. export-packaging expert 5. The testified 7. A as much a as its practice was the custom and subject contents, and manufacturer cargo the Portland waterfront to both. same rules of strong support enough with material Prosser, Minn.L.Rev. 50 805-06 man, open crates, or to use or to cut (1966); Friedman, 1 & Products Frumer packaging holes so that surfaces Liability [1], p. n. 22 § 5.03 28 which would not be walked on were See, example, Land Cream- O’Lakes visible, place warning or to notices eries, Hungerholt, F.2d Inc. v. 319 packages appeared be solid 1963); (8th L. Cir. Butler v. 360-361 in fact were not. (2d Sons, Inc., F.2d Sonneborn majority opinion suggests 1961); Tube Co. v. Note 6 of the Cir. Central Steel 1953); (8th Herzog, Cir. the evidence have been inade- F.2d quate (Second), com- because it did not Torts establish Restatement (f) (5). Compare car- A & P. was the ment Great ry long- weight, Miller, or for more than one Tea Co. v. given package shoreman stand on a *10 334 Friedman,

p. customarily [by sepa- 1 Frumer & sold See also retailers] 8.05; supra Noel, supra, 8.03, 71 Yale rate units and when sold no §§ (1962). prospec- L.J. at the retailer as to their 856-85 tive use.” 320 F.2d The at 824-825. Appeals The decision of the Court Appeals plaintiff’s Court of held that in Mazzi v. Green- the Second Circuit support a evidence “was sufficient (1963), illus- lee Tool 320 821 jury resolution that the use of the shoe application principles. of these trates press on a Wilson rather than a Greenlee Company The Tool defendant Greenlee * * * was intended or that defendant press pipe-bending hav- manufactured a reasonably should have that its foreseen component part. K. R. a “shoe” as a shoe be so and that failure used Company Wilson manufactured a similar danger to warn of the in such involved press machine. a The Wilson exerted usage negligence.” constituted 320 F.2d pressure sixty against psi tons “shoe”, whereas defendant Greenlee’s holding lia- press was constructed to withstand bility injuries caused limited pressure only forty psi. Plain- tons actually risks which the manufacturer (not privity Greenlee) tiff with knew is irreconcilable the decision injured when a Greenlee “shoe” which contrary in Mazzi. It is also other press had been attached to a Wilson recognize well considered cases which pressure applied broke when in ex- restricting liability that the doctrine forty psi. cess of tons trial resulting injuries from the “intended directed a verdict in favor on Greenlee’s products “is use” a manufacturer’s grounds, two one of which was that adaptation convenient of the basic designed Greenlee “shoe” was and in- foreseeability’ test of ‘reasonable framed press. tended for use aon Greenlee specifically to more fit the factual situa- Appeals The Court of reversed. questions tions out which arise Appeals The Court of held that it was negligence.” manufacturer’s error to “if direct verdict the evidence Spruill Boyle-Midway, Inc., v. 308 F.2d reasonably was such that a could (4th 1962). 83 Land Cir. See find that use [of Greenlee “shoe”] Hungerhold, Creameries, O’Lakes supra, Inc. v. press a Wilson was intended the man- 1963); 319 F.2d 361 Cir. ufacturer foreseeable Sons, Inc., supra, L. Sonneborn Butler v. and that failure to warn the dan- (2d 296 F.2d 625-626 ger negligence usage of such constituted Friedman, supra, See also 1 Frumer & in the circumstances.” 320 F.2d at 823. 8.05, Liability 8.03, Products §§ (1964). Greenlee officials testified that Green- single lee “shoes” were “not sold as items dis- These and similar cases cannot be any to be used in posed by attaching machine other “in- than the label press.” plaintiff herently” “imminently” dangerous Greenlee But offered evidence “that products it was the custom in the involved. These sim- buy independently adjectives trade to ply applied shoes been has after machines,” imposed; “that was common decided that will be ‘adapt reaching help one from one shoe are of no that de- press press’,” Mazzi, to another and “that cision.8 The the furni- “shoe” timé of polish Spruill, the accident Greenlee shoes were fertilizer ture ly to be imposed upon it has speak recognition “Although very largely ordinary duty which he can language that what some decisions if he is manufacturer, of ‘inherent is involved is mere- of reasonable reasonably expect superseded by negligent continue as to danger’, in its care 1 Frumer & ond), manufacture or sale.” Restatement § 28.9 at Harper 5.03 Torts [1] 1552-55, & (1966); Noel, Friedman, § James, 395 comment § 28.11 at Products Law of a. Yale L.J. See Liability (1956); Torts, (Sec- also Land, Butler, general charged O’Lakes, tice was so that it was the barrel *11 knowledge per dangerous se. with F.2d at instrumentalities 272 thereof.” Cohagan dangerous Similarly, 703.11 things in in all circum- the court New are stances; things in proof found a failure of because most Simpson’s was no “substantial a cus- evidence some.9 bundle usage imposing duty tom or purposes, but when a on [the innocuous most recognize surface, floor, the defendant a or manufacturer] “used as trap.” attempted proper As the the of doors use as a or bundle intend- jury, ques- (317 454); ed the use” and trial court instructed the S.W.2d at person Supreme only simply of rea- tion whether a Court of held is Missouri Simpson’s position, resulting prudence, that evidence that use in sonable in injury “on would have foreseen that risk. occurred isolated occasions duty does not tend to establish a on the authority majority sup- no cites ”*** part (317 of the manufacturer porting “recognized tort rules” 457). S.W.2d at Thus the rationale of require manufacturer to exer- these cases is not inconsistent known cise reasonable care to eliminate present trial court’s instructions hazards which a rea- hazards but not case, supports those instructions.12 sonably prudent would manufacturer McCready majority suggests Iron United foreseen. v. the “al that Co., (10th involving Cir. most & Steel 1959), F.2d 700 total dearth of 272 cases sim Cohagan Co., Laclede Steel ilar situations” v. indicates that manu (Mo.1958), ignored 317 announce no S.W.2d 452 facturers have not in fact principle. case, ap- dangers prod such In each to which handlers of their agreed pellate exposed. court trial court ucts with the be ma Before the jority spoke, insufficient the evidence was a well advised manufac charge knowledge of the defendant with turer would not have assumed he risk, safely rely ignorance upon did could but in neither of risks knowledge reasonably prudent person hold that evidence actual which a majority’s required. quota- Moreover, As the have discovered. a latent de McCready indicates, cargo packaging tion the Court fect renders the ves recog- Appeals unseaworthy (Gutierrez for the Tenth Circuit sel v. Waterman duty proper 206, 212-213, Corp., nized that a exercise cau- S.S. 373 U.S. 83 1185, (1963); tion would arise if the risk were one S.Ct. 10 L.Ed.2d 297 At “reasonably anticipated,”10 Stevedores, lantic & Gulf Inc. v. Eller Appeals Lines, Ltd., 355, 364, Court for the Tenth Circuit man 369 U.S. 82 showing (1962); held that “there was S.Ct. 7 L.Ed.2d United 798 King, had States [the manufacturer] defendant Lines Co. v. 363 F.2d (4th 1966); 661 of workmen Cir. Reddick v. Mc using Lighterage Line, Inc., the crossbars in casements Allister prac- footrests, injured (2d 1958)), handholds Cir. “Duty anticipate” 9. man- of care has been found “intend or the use for must cigarettes, urns, ufacture or sale of coffee to arise. combs, sewing machines, hair bottle of majority’s Compare statement perfume, sanitary napkin, ladder, a McCready held that “the manufacturer chain, pulley, gasoline electric investigate under a was not certainly stoves, and a sofa It bed. * * customs, hoioever universal prevailing view that extends contrary majority’s holding negli- which, if in also whatever fact principle Michigan gently made, may expect- to Weekes v. injury.” capable inflicting & 352 F.2d ed Chrome Chem. grant- 1965), Prosser, in which the court § Law of Torts 84 at 500-01 part (2d 1955), (3d new of an in- ed a trial because ed. 96 at 662 ed. contributory neg- struction which limited Compare majority’s suggestion ligence products case to risks McCready actually plaintiff. holds that known to the ordinarily unpacked sue the removed until the doors were ship, packager, than the to avoid for installation. rather negligence. proving burden of right Even if the in fault- Geo.L.J. 1939 n. negli- the instruction toas gence, justification this affords no what- suggests unfortunate This another setting ever aside the verdict consequence adopted rule plaintiff’s favor Lines. Grace thought majority. generally de- Grace Lines does review of the not seek impose of loss sirable to the burden plain- determination tiff; that was liable risk. best able to remove the *12 appeal solely is limited to the Oregon Societa, Italia etc. v. Stevedor- alleged the verdict. excessiveness ing 315, 323-324, 10, Co., n. 84 376 U.S. instructions, Under the trial court’s 748, (1964). 11 But S.Ct. L.Ed.2d 732 verdict Grace Lines was based liability majority decision, under the entirely jury’s upon the determination regard ship falls fault, without unseaworthy. that though Al- vessel was case, and, in in the face this “may majority suggests it finding by (made trial after a degree by have in been influenced some separate indemnity) trial of issue of applied considerations which were shipowner in neither knew nor light per- erroneous instruction the exercise of care could taining Simpson,” to the have known of the condition majority does not indicate what these package. Simpson, other “considerations” have been. hand, though only liability, is freed from impossible Simpson’s would be to do so. and knew of the latent defect negligence had no relevance whatever steps have taken to eliminate it. Lines, and the Grace No one could else have discovered entirely instructions made this clear. danger destroy- dismantling without or a warn- the face of properly The case was submitted to —in ing, printed on the cardboard cover jury,13 judgment and the should be . Simpson, that the cover was not to be affirmed only Speaking himself, not for clangers lurk ufacturer must learn of joining dissent, Judges the other processes products.” 2 his trial supra the writer would Harper James, note § & 16.5 gone Strayer Co., court’s well instructions also v. Erie See Guffie 1965); farther than did. 378, (3d Braun 350 381 When undertook v. Roux Distrib. 312 S.W.2d 763 export required antici- doors for it was (Mo.1958); Prosser, § Law of Torts pate (2d 1955), those risks which at 131-132 ed. at 163 Simpson, quotes (3d foreseeable ed. Dean Prosser Go circumstances, particular Beckwith, N.H. A. brecht v. (1926), also such risks as were foreseeable A.L.R. “Where engaged imposed those who were at the time to use care and where place question necessary the business to careful con “In duct, voluntary ignorance equivalent chose to the field enter. liability questions negligence.” manufacturers’ foreseeability closely with encourage entwined To hold otherwise would defendant; a man- ignorance status of the deliberate reduce knowledge and acquire ufacturer he is held to the centive for informa- newcomers to Noel, expert industry skill of an in his field.” tion known to those in supra, might prevent injury 71 Yale L.J. 847-48 or death. As noted engage earlier, ample “[M]en who certain activities there was evidence that relationships persons engaged or come into certain other then the busi- people peculiar things packing export are under ob- ness of doors for across the ligation acquire knowledge and ex- Portland docks were well aware perience activity, person longshoremen’s loading practices. about * * * * * * thing. Thus man- notes the trial read hospitalized, expenses suggesting that his medical doubt the correctness minimal, damages $80,- denying and that his action a mistrial. shows, however, 000 were awarded. record also record was the shows, plaintiff’s however, judge’s opinion, basic trial based considered jury (a bicep personal tear muscle of his on his of all cir- observation right arm, resulting permanent cumstances, loss of counsel’s unfortunate per ability “pretty cent of turn the comment was innocuous.” lifting power hand and one third of the arm), repairable, emphasis added, was not here and here-