*1 very proven. were This 14th was case demonstrates afternoon of October necessity confining ex- propriety and which Halliburton hotel room to warm. The pert interrogatory that closed, bellboy witness to a framed testi- was was taken testimony only that embodies facts that have been testified There was was hot. fied it duty the to. It seems us it found on that was the clear immediately insured was after body, of the court restrain witness. came for his ambulance sidewalk an charge the ambulance smell- and the one Reversed trial. and remanded a new ascertaining purpose of for the ed his breath drinking. He testi- or not he was whether whisky. It had couldn’t detect fied that ho by by plain- a doctor called testified also been large insured, a drink if he took tiff that circum- under the whisky at time and testimony, he would in the stated stances UNITED RADIATOR STATES CORPORA soon after that occurred If probably vomit. * TION et al. v. HENDERSON whisky de- not be drink, could taking the 879. No. he was When taken breath. tected on his Appeals, an interne made like hospital Circuit Court into the Tenth Circuit. he could amination, that and testified Dec. 1933. breath. Those whisky insured’s on discover testimony called to were facts especially expert, defendant’s attention of large insured took appeared it might be- have room in a warm drink nauseated, asked: he was come go to the window “Q. he Wouldn’t
air? hut he wouldn’t raise the Yes, sir, “A. person one million one
screen. Not in it and raise a screen go to a window with
the screen. “Q. you Do know the screen was went into room? when he
closed anything about it. I know
“A. don’t any “Q. evidence in this there Has
case, he there evidence that raised
the screen?
“A. I don’t recall. “Q. you willing yet are to assume And your answer, although put iu here, pur- there has been no evidence for the making favorable—
pose my accept conduct, you please.”
“A. testimony There is whatever as to the condition of the screen insured was bellboy. room the taken to the He testi- did not know whether the
fied that he screens up or windows were down. appears It thus defendant’s ex opinion, in
pert part least, based his at on proven, on assumptions that were facts Moreover, own. his we think it can bo as a matter of common said periodical (.100%) all drinkers in do not in that condition to tend when commit sui only witness cide. Not did this assume facts proven, but he that were not admitted that put he own construction his those that (2d) denying rehearing, 68 J3\ see 733.
*For
*4
George Nye,
L.
Denver,
(Clyde
Colo.
Dawson, Jr.,
C.
Pershing,
Nye, Bos-
brought
tho
Denver, Colo., of coun
less
furnace can be
under
Dick,
&
all of
worth
exception
does
Case,
first
which
the Iluset
sel),
appellant.
require
knowledge
imminent
proof
not
(Har-
Denver,
Blount,
Colo.
Dexter
G.
Hu
danger,
appellant
not liable.
tlsat
Rosner, both
ry
David
S. Silverstein
part
and in
approval
set Case was cited with
appellees.
Colo.,
Denver,
brief),
on the
Parke, Da
upon
at least
in Hruska v.
relied
PHILLIPS,
BRAT
LEWIS,
Before
Lynch
(C.
536, and
A.) 6 F.(2d)
C.
vis & Co.
Judges.
TON, Circuit
(C. A.)
v. International Harvester
C.
Co.
expressly,
impliedly, if
F.(2d)
223. It is
stating
Judge (after
LEWIS, Circuit
that where
conceded
counsel
however
above).
facts as
imminently
inherently
article involved is
part of
knowledge
dangerous actual
jury on
was submitted
The ease
bo
danger need not
the manufacturer of tho
that consumed
issue, whether the fire
tho
Carpenter-Morton
proven.
Thornhill
furnishings
due
house and
plaintiffs’
—“was
“Proof,
N. E.
491:
Mass.
in that the
negligence
the defendant
required
however,
actual
man
defendant
question,
* *
*
in
up as to be
where
is so made
the article
market
tho
put upon
ufactured and
*5
who
herently
manufacturer
harmful. The
designed or
carelessly
negligently
was
and
he
parts
component
to
puts or causes the
only, in that
particular
in one
manufactured
aft
put
accepts
as his own
together, or
them
securely fastened to
not
the
was
smoke hood
assembled,
they
presumed to
er
be
are
must
top of the boiler.”
the
quality
know the nature and
of the resultant
“You
jury was further instructed:
compound
public
pur
he
the
to
which
solicits
of
defend-
tho act
the
find that
must further
with
chase.” But we answer the contention
was an
adopting
particular
this
ant in
Buick Motor
the
in MacPherson v.
dangerous
imminently
was
act itself which
382,
1050,
Co.,
111
E.
R. A.
217 N. Y.
N.
L.
use the
whose
property of those
to the
1916F,
has
696,
1916C, 440, which
Ann. Cas.
Other-
designed
constructed.
was
and
in both state and
widely
been so
followed
the defendant.”
must be for
your
wise
verdict
courts,
poi
on
Federal
wherein false labels
the mere
that
instructed
jury
Tho
was further
tho
(included
exception to
sons
in the first
might possibly
danger
result was
fact that
Case),
Iluset
a
scaffold for work
defective
the manufacturer
liable
insufficient to make
urn,
men, a
coffee
and a defective
defective
injury
injuries,
appear that
and it must
automobile wheel are included in the same
result;
that
it
caused
probably
if was
knowledge.
of
class relative to tho
operation
the boil-
installation or
of
contributed di-
er,
those two factors
or that
MacPherson v. Buick
Cases
follow
destroyed plaintiffs’
rectly to
fire which
tho
respect, involving
Co., supra, in that
Motor
be for defend-
finding
should
property,
fabrications,
widely
various
different
and
ant;
jury
plaintiffs
not
could
find for
(C. C.
are: Johnson v. Cadillac Motor Co.
they
proven by
preponderance
a
had
unless
Employers’
878,
1023;
261
A. L.
A.)
F.
8
R.
proximate
direct
the evidence that the
and
of
Liability
Corp., Ltd.,
Columbus
Assur.
v.
the blowing
of
fire
off of
cause
was
;
(D. C.)
F.(2d)
13
128
McKinnon Chain Co.
thereby setting
on
and
the house
fire.
hood
(C. A.)
Goullon
Ford Motor
v.
Co.
C.
44 F.
310;
Sanitary Mfg.
Clark
Standard
(2d)
v.
all
At the close of
the evidence the de
828,
284;
149
N. Misc.
Co.,
A.
8
J.
Smith v.
verdict,
moved for a directed
and as
fendant
Co.,
292,
Peerless
259
Glass
N. Y.
181 N. E.
signs
support
refusal.
In
of
error in its
.
Co.,
576;
v. Fox
Buick
Flies
Bros.
196 Wis.
assignment attention is first called to the
196,
357;
218
60
855,
N. W.
A. R.
Heckel
L.
the furnace was not sold
fact that
to Hender
385,
son,
Co.,
Law,
Ford Motor
N. J.
128
v.
101
there was
hence
no contractual relation
242,
Duhrkop
989;
39 A. L.
parties;
A.
R.
Barabe v.
that no
between
distinction can
466,
Oven
231 Mass.
Co.,
121
415;
drawn between a manufacturer
N. E.
Van
be
of furnac
v.
threshing
Co.,
a manufacturer
Winkle American
es and
of
ma
Steam-Boiler
52 N.
Law,
threshing’
240,19
472; Farley
chines;
a
J.
A.
machine under
v. Edward E.
Co., 271
230,
set out in Huset
Tower
Mass.
171 N.
639,
classification
v. J. I.
E.
86
Case
(C.
941;
Threshing
A.)
L. R.
Marsh
865,
Mach. Co.
120 F.
Wood
C.
A.
Products Co. v.
Co.,
303,
injury
209,
R.
where
was
Babcock & Wilcox
207
61 L.
A.
to a
Wis.
240
N.
392;
person,
placed
Coakley
was
excep
third
v.
W.
Prentiss-Wabers
third
Stove
opinion in
caso,
Co.,
94,
stated in the
182
195 N.
tion
in
Wis.
W. 388.
Some
knowledge
exception
prior
actual
of tho im
the cases cited wore
to
the MacPherson
danger
go upon
to life and limb
principio
minence
is a Case. All of them
element;
argued
requisite
and it is
an appliance,
au-
that “the manufacturer of
92
dangerous
put
to
highly
may
will
But such
duty
become
when
a
arise from other
constructor,
designed
it
use for which is
and intended than contractual relations. The
manufacture,
manufacturer,
in its
owe to
because
defects
or
of an article which
vendor
public duty,
or
irrespective
inherently
imminently
contrac-
dangerous,
a
is
tual
though
imminently dangerous
care in the
relation,
use reasonable
whieh
int
appliances.”
designed,
such
itself
manufacture of
becomes so if not
construct
ap
care,
ed or manufactured with due
dwelling
Obviously, heating
a
plant in
plied to its intended
in the usual
cus
use
imminently dangerous
is
instrumentality
tomary
duty
public
manner,
to the
owes
operat
to life
property,
made
ordinary
exercise
with the
care commensurate
care;
proof
ed
is
appropriate
with
and there
danger,
constructing,
designing,
in
support
was
appellant
of the verdict that
v.
manufacturing of such article. Goullon
guilty
designing
negligence,
charged,
310;
6)
F.(2d)
Motor
(C.
Ford
Co.
A.
44
C.
means
smoke hood without
making the
Co., 228
Payton’s Adm’r
Elec.
v. Childers’
of attaching
to the
would not
dome so it
44,
208;
v.
Ky.
14
MacPherson
(2d)
S.W.
displaced
by explosions,
causing re
thus
382,
E.
Motor
217
Y.
111 N.
Buick
N.
proximity
lease of flame under and in
1916C,
696,
1916F,
L. A.
Ann. Cas.
1050, R.
ceiling.
oper
negligent
proof
There
Co., 318
440; McLeod
Air Products
v. Linde
ation.
that other manufac
There
397,
122;
Bot
S.W.(2d)
Coca-Cola
Mo.
top’
placed
turers
smoke hood on
of their
Ky.
Shelton,
282 S.
Works
tling
v.
evidentiary
furnaces,
they did
but what
C.
;
(C.
Tube Co.
Keep
778
v. National
W.
only
subject
controlling
and not
154 F.
N.
121.
J.)
negligence.
Ry.
Chicago, Great Western
Co.
(C.
657;
M’Donough
161 F.
Texas
A.)C.
Some authorities hold
seller
&
Behymer,
S.
Pac.
Co. v.
U.
vendor must have
of such
actual
R.
*6
622,
905;
danger.
S. Ct.
47 L. Ed.
American Coal
or
v. J. I. Case Thresh.
defect
Huset
(C.
349;
A.)
F.(2d)
Co., supra;
Co.,
Co. v.
30
De Wese
C.
M.
Laudeman v. Russell &
v.
App.
822;
(C.
32,
Parker
F. 715. 46
91 N. E.
A.)
v. Cushman
C.
195
Ind.
Lebourdais
Besides,
Co.,
appears
341,
Radia Vitrified Wheel
the American
194 Mass.
80 N. E.
Company
482; Tipton
tor
securely
v.
&
Mfg.
its
Leas
Co.,
fastened
smoke
Barnard
302
162,
hood
257
top
791;
to the
of the
Mo.
years
dome for several
S. W.
Bates
&
Batey
v.
Ltd.,
prior
Co.,
See,
3 K.
also,
to this fire.
B. 351.
Krahn v.
Co.,
L. Owens
125
33,
J.
Minn.
145 N. W.
Other claimed errors
assigned
are
and ar-
626,
(N.
51 L. R. A.
650.
S.)
gued,
light
but in the
of the
they
whole record
Others,
seem
especially
to us
without
to be
merit.
where the defect
la
duty
and there
inspection,
tent
hold
Affirmed.
knowledge may
implied
be
where ordi
nary
inspection
care in
would have disclosed
PHILLIPS,
Judge
Circuit
(dissenting).
the defect.
Co.,
Heckel v. Ford Motor
101 N.
general
The
rule is that
constructor,
Law, 385,
242,
989;
J.
128 A.
39 A. L. R.
manufacturer, or vendor of an article is not'
Coakley
Co.,
v. Prentiss-Wabers
182
Stove
liable to
persons,
third
with whom he has no
94, 195
388;
Fayetteville
N.
Wis.
W.
Cashwell v.
relations,
contractual
negligence
in the Pep
Works,
Bottling
174 N. C.
si-Cola
construction, manufacture, or sale of such
324, 93
E. 901;
S.
Johnson v. Cadillac Mo
article.
v. J.
Huset
I. Case Thresh. M. Co.
(C.
tor Car Co.
C.
2)A.
R. A. Gibson v. City Kansas even under the modern decisions, in order Co., 346, Pack. Box 85 Kan. 502, 116 P. 503, duty for the to arise the article or instru 1912D, Ann. 1103; Cas. Smith Clark, mentality v. 125 must be inherently either im and 36, 18, Okl. 256 P. 38. minently dangerous, or must become immi-
93 layman and con intend- which the lias no applied its dangerous nently jury cannot form correct cerning which a customary manner. usual and ed use unim own, of its uncontradicted said: Case, court MacPherson In the expert may not be peaehed thereof evidence immi- danger must be principle that “The facts are es disregarded; and where such subject things change, but the does not nent evidence, proof by expert thereof tablished change.” do principle (C. Ewing C. v. Goode necessarily fails. heating boiler or steam that a I assume Nashville, 442, 444; Harris C. v. Ohio) 78 F. manufac- designed or defectively so furnace 44 14 Ala. So. Co., L. R. 153 & St. the fire therein not retain will tured that it Friedman, (N. 261; Kerwin v. S.) R. A. L. unit, in- its heating part of a as a when used 1102; Leitch v. App. 519, 105 W. 127 Mo. S. customary man- use, in the usual tended 100; Hart N. Y. 66 Atlantic Mut. Ins. dangerous. imminently ner, is N. Y. 517, 52 S. Brooklyn, App. 31 Div. v. not wheth- presented is here 141, 193 Estate, In 181 Wis. 113; re Butt’s defectively or constructed the boiler er Heiner Co. v. Diamond Alkali 988; N. W. wheth- materials, but of defective constructed 505, 510; U. S. v. F.(2d) (C. 3)A. C. 40,000 other boilers it, approximately er See, (C. 2) F.(2d) A. Lumbra C. 796. by the defend- and sold like it manufactured Neill, Iowa, 141, N. also, Burton v. in that defectively designed, ant, were Cas. 532. 302, 17 Ann. W. securely fastened to the was not smokeliood Goode, Chief Ewing supra, the late In negli- dome; the defendant was whether Judge of the Taft, Justice then a Circuit them. designing gent in so Circuit, said: Sixth from there substantial Was evidence, though expert many eases, “In an- an affirmative jury could find upon way, conclusive tending is not all one question? swer to latter, as men jury, court but act evidence of There was direct from affairs, inferences may their own draw consti- part of defendant or omission on the reject statements accept facts, and in- Negligence must be tuting negligence. the sub- experts; eases are where but such boiler was de- fact ferred ject border line be- of discussion is jury- words, designed. In other fectively general expert domain tween the must that the boiler was de- have first found knowledge, as, instance, where the val- *7 designed then there- fectively and inferred involved, or of ue of land is where the value negligent from the defendant was in the professional dispute. in There services is the alleged. my particulars opinion It is reaching of from the mode conclusions facts proof that there was no substantial the boil- is different from the in- when stated not so designed, and hence no defectively er was knowledge expert common ferences of existed for such inference. basis anything more testimony can than a mere be properly design is not sim- To a furnace highly But a ease concerns the guide. when undertaking. only ple problem The is not cataract, treating eye for specialized art of an to retain the within furnace uti- fire the and mysterious the and dread disease or for of therefrom, lize the heat but not so restrain to respect layman glaucoma, with to which a generated ignition expansive by of the force knowledge all, and can no at the court have gases accumulated within the furnace as to dependent expert jury must be evidence. damage explosion. from cause It cannot he and, guide, can no other There be where want by rigidly constructing solved the furnace shill or is not thus by attention shown ex- of affording elasticity and to relieve the force pert applied facts, there is gas explosion. unduly If such force is re- proper to no evidence be to submitted strained, terrifically damaging explosion (Italics jury.” mine.) the would result. Means must provided, be there- question of whether The the boiler was fore, to restrain the fire and at the same time designed upon defectively was one the which explosions to release the force of such so as jury form could not a correct of its damage. proper not to cause the Hence de- The existence or non-existence of own. such signing highly specialized of a furnace is a only by expert defect bo could established requiring expert training, and technical art evidence. skill, experience high and of a order. It in- that the boiler was defective- engineering knowledge To establish volves and technical designed, plaintiffs experience called two concerning lay ly and the mind witnesses: which Harvey Gandrup. nothing. H. Larimer and A. knows In cases where the facts es- Wm. had technical education or train- questions sential of Neither had to be established involve skill, designing manufacturing of expert respect in the and ing to and with 9á heating boilers, design by this or in the art of boilers of had been sold heating steam experience of engineering. practical the defendant. The selling installing and to had been limited each He further testified that confinement furnaces. gases the severity explosion; increases anof gas pressure, that to relieve the boiler of the alleged defect of the in On the open fire door is so constructed as to might be a “There design, Larimer testified: slight pressure applied against is the inside safety the smokehood having more in little ** * surface, the clean-out is likewise con- door you it. However term as fastened structed, rigidly smoke dome is not move that great enough to any explosion affixed; that in addition to these doors there apart part press some will smokehood times, allowing is free air at all part of the boiler.” pipe other or some 25% smoke carry away gases chimney to and thus follows: Gandrup testified as preventing gas an under accumulation of * * * say as you to “Q. would What pressure. smokehood securely fasten the failure to also testified follows: He as that is boiler, to whether as of'the top to * * * design “The is in accordance of the design or construction a defect in engineering practice best known with the in the a defect say it was I would A. boiler? knowledge. design, pressure ** Its a low * as design the boiler. boiler, accepted has been used heat- * '* * ? A. reason “Q. what And for country period ing business in this for a is defective boiler that this My determination twenty-five do not believe ceeding years. I my conclusion upon design based is in design that there is in this defect fire in caused the blew off the smokehood improve- I know of boiler. no alteration or only That is the residence. Henderson -improve which could ment be made to saying boiler have for basis design safety operation. of its in The fasten- design.” in defective ing bolts, of the smokehood rigidly by having it east integrally with boiler was not de- that the boiler To establish my top, belief, in be contrary to designed, called Jas. the defendant fectively good engineering practice, attempt an as McIntyre Frank G. Parker. F. you might get a force restrain such with vice-presi- McIntyre testified that he was explosion. principle engineering fol- engineering charge of defendant in dent of provide lowed is to for relief manufacturing; graduated that he my than rather restraint. belief that all It of the Universi- Engineering Department safeguards provided have furnish specialized in 1907, having Illinois ty of any rapid relief from additional combustions ventilation; mem- heating and that he was a amounting explosion gas to an in the de- Society American of Mechanical ber of the sign and construction of this could Society Engineers and the American of Heat- provided destroying without its usefulness *8 Ventilating Engineers; that the de- ing and . heating engineer a boiler. As chief as of de- question developed was sign of the boiler in company, study a fendant have made of 1926; that is made in in the boiler four question. particular repre- This that boiler base, section, pot, fire intermediate parts: last word a result of my sents the as study dome; a fire door smoke that there is in * * * experience. If this boiler is through pot fire which coal or other fuel the operated, it a properly appli- is safe device or furnace; fed into the that is the fire door distinguished dangerous a as from one.” ance complete air the also admits over furnace to combustion; graduated testified Parker that he that there from the is also a door in of Technology at Manchester, the the base section and a clinker door a School on level 1913; England, in that grate; the he had with that above the fire door is assistant a inspector door; in chief the clean-out that the smokehood Hartford there Steam butterfly Inspection draft cheeking Company door for Boiler Insurance a the since in- 1925; the boiler tensity produced by of the draft that in the was chimney; con- a in butterfly there is also in accordance with the that door the structed construction base Society of the American for the admission of air below code of section Meehnieal the combustion; Engineers; that the a smokehood was ring
fuel bed to stimulate
that
attached
recognized
the
with
integrally
ap-
or rib
east
with
in accordance
and was
dome
defect;
impossi-
larger
two
from
that it
proximately
inches
in
free
would
diameter
opening through
integrally
dome;
the
east the smokehood
with
than the
that
ble to
the
the
of
necessity
allowing
on account
ring
is set
of such
the
of
smokehood
inside
and boiler
expansion stresses;
that
so
40,-
furnace
and that over
to be
east
putty;
sealed with
it;
qualifications
prevent
expert
than
based
rather
the
create hazards
of
would
charge
putting
by
fully
a
witnesses called
the
them;
like
defendant were
it would be
established;
install
house to
were
dynamite
person’s
under a
such witnesses
not
of
contradicted, impeached,
anywise
constructed; and that such boilers
nor in
dis-
so
boiler
credited,
conclusively
rather
to relieve
evidence
es-
so as
their
be constructed
should
gases.
tablished
the design
of the
was
boiler
coniine combustible
than
not defective.
not an
that he was
admitted
Larimer
testimony,
undisputed
designing,
Furthermore,
the
and his
boiler
on
pert
the
the
proof that
fail-
shows that
boiler at
of the ac-
of
the
time
competent, fell short
was not
to
being applied
the smokehood
cident
its
securely fasten
intended
ure to
design.
customary manner,
in
in the
defective
use
usual
the boiler
rendered
dome
by
accordance with the directions furnished
an
qualified
not
Gandrup likewise was
the defendant.
was
the
statement
expert. His
up
predicated
Gandrup
not
he installed the
defectively designed was
testified that
but
fur-
experience,
or
boiler in accordance with the directions
any expert
illogical premise,
defendant;
name
nished therewith
the
upon an unsound
he
It is an
joint
the
the
occurred.
closed
between
dome of
had
the boil-
that the accident
ly,
excep
that, except in
er and
smokehood
putty;
with furnace
principle
established
putty
of res that
did
tend
falling within the doctrine
such
not
to hold the
eases
tional
place,
merely
accident smokehood in
fact that an
but
made
loquitur,
mere
ipsa
property joint
tight.
or
air
person
to a
injury
has resulted
or infer
presumption
authorize
does
explosion
Henderson
that an
testified
oc-
part of a defendant.
negligence on the
of
ence
day
curred in the boiler on the
before Thanks-
Co., 200
S.
Looney Metropolitan R. R.
U.
v.
apparently
giving in 1931.
was
It
severe
564;
303, 305,
486,
50 L. Ed.
480,
S.
Ct.
explosion. Gandrup
repair
was called to
Erving,
233, 238,
228 U.
Sweeney
S.
damage. He found the smokehood in place,
1914D,
L. Ed.
Ann. Cas.
S. Ct.
putty ring
broken,
but the
so that smoke
Detroit, M. &
Line R.
905; Leahy v.
T. Short
escaped through
joint,
pipe
and the smoke