Petition for a Writ of Certiorari — Coston Supply Co. v. Pabellon

t t *. 4e

FILED

OCT 24 1951]

Supreme Court uf the Anite States ee

OCTOBER TERM, 1951 CHARLES ELMURc crores

oe 399

ALEJANDRO sides: Damien:

basis Plaintiff- Respondent,

against

Grace Live Inc.,

Defendant and Third

Party Plaintiff-Respondent,

against

Coston Suprty Company, Rupman & Soortenp, Inxc.,

Durkee Company, Ino., Dzansorn CuemicaL Co., OakITE

Company and Swirr & Co.,

Third Party Defendants-Petitioners,

and

Rupman & Soortzzp, Inc.,

Fourth Party Plaintiff-Petitioner,

agatnst

McKesson & Rossrns Incorporarep and Op Bury

Exectro-CuemicaL Co.,

Fourth Party Defendants-Petitioners.

PETITION FOR WRIT OF CERTIORARI TO UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT AND BRIEF

LoweLL WapMonp,

Counsel for Petitioners.

LOWELL WADMOND,

DAVID Reon Je.,

TABLE OF CONTENTS

PAGE

PETITION 1

Summary and Statement of the Matter Involved ...... 2

Basis of Jurisdiction 3

Questions Presented 3

Reasons for the Allowance of the Writ—

Importance of the Questions Presented ...................- 4

PETITIONERS’ BRIEF 7

Opinions of the Court Below 8

Basis of Jurisdiction 8

Statement of the Case 8

Specification of Errors 9

Summary of Arguments 9

Pornt I—A vendor does not impliedly warrant that

the product sold by him may be safely mixed with

four other products over whose manufacture he

has no control 10

Pornt II—No duty exists on the part of a manufac-

turer to warn of the consequences, if any, result-

ing from the mixing of his product with four

other products over whose manufacture he has no

control—local decisions are in conflict with the

Circuit Court’s holding below 15

—

ii

PAGE

A. The Third and Fourth Party Defendants Vio-

lated no Duty, or Obligation, Requiring them

to Conform to any Standard of Conduct for

the Protection of Others against Unreason-

able Risk. (Prosser’s First Element.) -........ 16

B. The Accident Did Not Have Such a Reason-

ably Close Causal Connection with the Injury

as to Make any Manufacturing Third Party

Defendant’s Conduct the Proximate Cause of

the Alleged Injury. (Prosser’s Third Ele-

ment.) 20

C. Local Law is in Conflict With the Opinion

Below 24

D. The Only ‘‘Mixing’’ Case in the Second Cir-

cuit is Distinguishable 25

Pornt II1I—In an action under the Jones Act, a third

party plaintiff cannot implead third party de-

fendants whose liability is governed by different

rules of law 26

Pornt IV—The judgment below should be reversed

in all respects 30

Table of Cases

Ader v. Blau, 241 N. Y. 7 (1925) 29

American Mutual Liability Insurance Co. v. Matthews,

182 F. 2d 322 (1950) 28

Barchan & MacFarland, Inc. v. Kane, 228 App. Div.

396 (4th Dept., 1930) 14

Becker v. Waterman Steamship Corporation, 179 F.

(2d) 713 (C.A. 2nd, 1950) 27

Bencoe v. McGraw, 208 N. Y. Supp. 4 (1st Dept., 1925) 14

Bird v. St. Paul, 224 N. Y. 47 22

Boyd v. American Can Co., 249 App. Div. 644 (2nd

Dept., 1936) 24

ww

Hi

PAGE

Collela v. Smith Fredenburg, 239 App. Div. 274 (4th

Dept., 1933), aff’d 266 N. Y. 641 14

Cosmopolitan Co. v. McAllister, 337 U. S. 783 (1949) 27

Davidson v. Nichols, 11 Alien 514 (1866) —............ inion, ae

Ellen v. Heacock, 247 App. Div. 476 (4th Dept., 1936) 14

Erie R. Co. v. Erie Transportation Co., 204 U. S.

220, 27 S. Ct. 246, 51 L. Ed. 450 28

Grant Manufacturing Company v. Yates-American

Machines, 111 Fed. (2d) 360 (C.A. 8th Cir., 1940) 13

Heaven v. Pender, 11 Q.B.D. 503 (C. A. 1882) ..... 18

Howard v. Hoey, 23 Wend. 350 13

Huset v. J. I. Case, 120 Fed. 865 18

Kalfayan v. Companie Francais de Navigation a

Vapeur, 257 N. Y. 572 22

Kalinowski v. Joseph T. Ryerson & Son, 272 N. Y. S.

759 (App. Div. 4th Dept., 1934) 17, 21

Korn v. Capital Hall, Inc., 69 N. Y. S. (2d) 248 (App.

Term, lst Dept.,°1947) 1

. “high Valley R. Co. v. Cornell Steamboat Co., 218

U. S. 264, 31 S. Ct. 17, 54 L. Ed. 1039, 20 Ann.

Cas. 1235 28

MacPherson v. Buick Motor Co., 217 N. Y. 382

17, 18, 21, 22

MeNeil & Higgins v. Czarnikow-Rienda, 274 Fed. 397

(D.C. S.D. N. Y. 1921) 13

Morril v. Morril, 104 N. J. L. 557, 142 A. 337 2. «17

Odgis v. Popock, 91 N. Y. S. (2d) 410 (Sup. Ct., 1949) 20

The Osceola, 189 U. S. 158 (1903) 27

Palsgraf v. Long Island Rail Road Co., 248 N. Y. 339 17

Pease v. Sinclair Refining Co., 104 Fed. (2d) 183

(C.C.A, 2nd, 1941) 25, 26

7, 21

Porello v. United States, 2 Cir., 153 F. 2d 605 _.... 29

Quill v. Empire State Telephone & Telegraph Co., 159

| Ae 23

iv

PAGE

Reiss v. Kirkman & Son, Inc., 242 App. Div. 77............ 23

Ryan v. Progressive Grocery Stores, Inc., 255 N. Y.

388 (1931) 14

’ Sehfranek v. Benjamin Moore & Co., 54 Fed. (2d) 76

(D.C. S.D. N.Y. 1931) 22

Ship v. Friedenberg, 132 App. Div. 782 (ist Dept.,

1909) 17, 21

Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424 (1939) 27

Spaulding v. Parry Navigation Co., 90 F. Supp. 567

(S.D. N. Y. 1950)

Sure Seal Company v. Loeber, 171 App. Div. 225

(1st Dept., 1916) 14

Thomas v. Winchester, 6 N. Y. 397 17

Traynor v. United Cigar-Whelan Stores, 274 App. Div.

800 (2nd Dept., 1948) 25

Turner v. Edison Storage Battery Co., 248 N. Y. 73... 13

Winterbottom v. Wright, 10 M. & W. 109 ................ 17, 18, 19

The Wonder, 2 Cir., 79 F. 2d 312 29

Other Citations

A. L. I. Restitution $86 28

Federal Employers Liability Act, 45 U.S. C. A. 53... 27

Personal Property Law (Uniform Sales Act)

Section 96(1) 10

Section 96(4) 10

Prosser, The Implied Warranty of Merchantable Qual-

ity, 21 Can. Bar J. 446 (1943) 13

Prosser on Torts 16, 23, 28

a

Supreme Court of the United States

OCTOBER TERM, 1951

No.

—S ne

ALEJANDRO PABELLON,

Plaintiff-Respondent,

against

Grace Line Inc.,

Defendant and Third

Party Plaintiff-Respondent,

against

Coston Supptry Company, RupmMan & Scorterp, Inc.,

Durkee Company, [nc., Dearsorn CHemicaL Co., OAKITE

Company and Swirt & Co.,

Third Party Defendants-Petitioners,

and

Rupman & Scorrezp, Inc.,

Fourth Party Plamttff-Petitioner,

against

McKesson & Ropsins Incorporatep and Op Bury

Eecrro-CHemicau Co.,

Fourth Party Defendants-Petitioners.

—_—eE— a

PETITION

To the Honorable, the Chief Justice of the United States

and the Associate Justices in the Supreme Court of

the United States:

Petitioners respectfully pray for a writ of certiorari to

review a decree of the United States Court of Appeals,

2

for the Second Circuit (R. 41)* which reversed a judg-

ment of the United States District Court, for the Southern

District of New York, wherein the District Court adjudged

that the third party complaint of third party plaintiff,

Grace Line Inc., should be dismissed on the ground that

it failed to state a claim upon which relief could be granted.

Summary and Statement of the Matter Involved

Plaintiff was a seaman aboard third party plaintiff Grace

Line’s vessel ‘‘Santa Isabel’’ (R. 10). Allegedly plaintiff

was injured while cleaning the deck by an explosion caused

by his mixing together (1) lye, (2) oxalic acid, (3) a

detergent called ‘‘Oakite,’’ and (4) a soap powder called

‘*Pride’’ (R. 10-15). The Grace Line having been sued,

brought a third party complaint, containing three causes

of action, against various third party defendants who

either manufactured or sold to Grace Line the products

which, having been mixed together by plaintiff, are alleged

by Grace Line to have caused the explosion. The first

cause of action sounds in breach of warranty and is

directed against those who sold Grace Line one or the

other of the products. The contention is that there

was a breach of implied warranty of fitness of materials

sold for cleaning purposes. The second cause of action

sounds in tort for negligence and is directed against

those who manufactured the products. The contention

here is that there was negligence in failing to warn that

the four products were dangerous when mixed. The

third cause of action is for contribution and directed

against all third party defendants. The District Court,

on motion made by the third party defendants, dismissed

the third party complaint. The Court of Appeals reversed

the District Court and determined that the third party

complaint stated a cause of action.

* Reference is made to’pages in the Record.

Basis of Jurisdiction

It is respectfully submitted that this Court has jurisdic-

tion to review the judgment or decree herein in question

for the following reasons:

(a) There are involved here important questions of

Federal law hitherto unpassed upon by this Court or other

courts.

(b) The Court of Appeais for the Second Circuit has

decided an important question of local law in conflict with

applicable local decision.

(c) The conflict inherent in this case between the lan-

guage and intent of the Jones Act, which limits actions

to those between injured seamen and their employers, and

the liberal third party practice provided in the Federal

Rules of Civil Procedure require this Court’s construction.

(d) The date of the decree of the United States Court

of Appeals for the Second Circuit sought to be reviewed

is July 26, 1951.

Questions Presented

Questions presented are as follows:

1. Does a manufacturer impliedly warrant that his

product may be safely mixed with four other products

over whose manufacture he has no control?

2. Does a duty exist on the part of a manufacturer to

warn of the consequences, if any, resulting from the mix-

ing of his product with four other products over whose

manufacture he has no control?

3. Does the law of the State of New York conflict with

the holding of the court below as to the liability of manu-

4+

facturers and vendors in negligence and warranty under

the circumstances mentioned above?

4. In an action under the Jones Act, may a third party

plaintiff implead third party defendants whose liability is

governed by different rules of law?

Reasons for the Allowance of the Writ—Importance

of the Questions Presented

1. This Court has never passed on the question of the

right of an employer in an action under the Jones Act fo

contribution from non-employer third parties whose neg-

ligence may have contributed to the injury and whose

liability because of the absence of a master and servant

relationship depends on different rules. In short, are

defenses (ordinarily available to third parties) to be

unavailable to these parties because the action was

brought under the Jones Act?

2. The decision below that the complaint states a claim

upon which relief can be granted is in conflict with the

local law in that New York law does not hold a manu-

facturer liable in negligence or warranty when his

products are indiscriminately mixed with other products.

In other words, do manufacturers have a duty to chemi-

cally analyze all conceivable products with which a con-

sumer could possibly mix his product?

The dangers of determining that manufacturers or

vendors are to be liable in negligence or warranty for the

_ indiscriminate mixing of many products with their

products goes to the essence of the basic doctrines of

negligence and warranty which form so important a part

of the body of our commercial law.

An increasing number of actions under the Jones Act

wherein employers seek to shift liability warrants this

5

Court in determining whether the authority to shift such

liability should be in the courts or on Congress.

WHEREFORE, your petitioners pray that a writ of cer-

tiorari issue under the seal of this Court, directed to

the United States Court of Appeals for the Second

Circuit, commanding said Court to certify and send to

this Court a transcript of the record and of. the pro-

ceedings of said United States Court of Appeals for the

Second Circuit, had in this case, to the end that this cause

may be reviewed and determined by this Court, as pro-

vided by the statutes of the United States; and that the

decree herein of the said United States Court of Appeals

for the Second Circuit be reviewed by this Court; and for

such other and further relief as to this Court may seem

proper.

Respectfully submitted,

LowELL Wapmonp,

Counsel for Petitioners.

Supreme Court of the United States

OCTOBER TERM, 1951

No.

——— EEE EE

ALEJANDRO PABELLON,

Plaintiff-Respondent,

against

Grace Line Inc.,

Defendant and Third

Party Plaintiff-Respondent,

against

Coston Suprty Company, Rupman & Soorterp, Inc.,

Durker Company, Inc., Drarsorn Cxemicat Co., OaKITE

Company and Swit & Co.,

Third Party Defendants-Petitioners,

and

Rupman & Scortep, Inc.,

Fourth Party Plaintiff-Petitioner,

against

McKesson & Rossrns Inocorporatep and Otp Bury

Exvectro-Cuemicat Co.,

Fourth Party Defendants-Petitioners.

SS a

PETITIONERS’ BRIEF

The third party and fourth party defendants, petitioners

. herein, apply for a writ of certiorari to the Supreme Court

of the United States of America to review a decree of the

8

United States Court of Appeals for the Second Circuit

(Hons. Harris B. Chase, Charles E. Clark and Jerome

N. Frank, Cirenit Judges) reversing a judgment of the

United States District Court for the Southern District

of New York (Conger, District Judge,) which dismissed

the third party planitiff Grace Line’s third party com-

plaint.

Opinions of the Court Below

There was an opinion in the United States Court of

Appeals for the Second Circuit (per Hon. Charles E.

Clark, Circuit Judge,) which is reported at 191 F. (2d)

169. This opinion reversed the District Court for the

Southern District of New York (Conger, J.), reported at

94 F. Supp. 989.

Basis of Jurisdiction

The basis of jurisdiction is set forth in the petition

preceding this brief at page 3.

Statement of the Case

Plaintiff, a seaman aboard Grace Line’s vessel ‘‘Santa

Isabel’’ (R. 10), was allegedly injured while cleaning the

deck by an explosion caused by his mixing together (1) lye,

(2) oxalic acid, (3) a detergent called ‘‘Oakite,’’ and

(4) a soap powder called ‘‘Pride’’ (R. 10-15). The Grace

Line, having been sued by Pabellon under the Jones Act

for unseaworthiness and the General Maritime Law for

maintenance and cure, brought a third party complaint,

containing three causes of action, against various third

party defendants who either manufactured or sold to Grace

Line the products which, having been mixed together by.

the plaintiff, are alleged to have caused the explosion.

9

Specification of Errors

It is respectfully submitted that the Court of Appeals

for the Second Circuit erred in reversing the judgment

of the District Court and holding that the amended

third party complaint stated a claim upon which relief

can be granted.

Summary of Arguments

1. The first cause of action in the amended third

party complaint does not state a claim upon which relief

can be granted, because a vendor does not impliedly

warrant that the product sold may be safely mixed with

four other products over whose manufacture he has no

control.

2. The second cause of action contained in the

amended third party complaint does not state a claim

upon which relief can be granted against the manufactur-

ing third party defendants, because no duty exists on the

part of a manufacturer to warn of the consequences, if any,

resulting from the indiscriminate mixing of his product

with four other products over whose manufacture he has

no control because:

(a) The manufacturing third party and fourth

party defendants violated no duty or obligation

requiring them to conform to any standard of

conduct for the protection of others against any

unreasonable risk.

(b) The accident did not have such a reasonably

close causal connection with the injury as to make

any manufacturing third or fourth party defend-

ant’s conduct the proximate cause of the alleged

injury.

10

(c) Decisions of the courts of the State of New

York are in conflict with the Circuit Court’s holding.

(d) The only ‘‘mixing’’ case in the Second Circuit

is distinguishable from the instant case.

3. In an action under the Jones Act, a third party

plaintiff cannot implead third party defendants whose lia-

bility is governed by different rules of law.

POINT I

A vendor does not impliedly warrant that the

product sold by him may be safely mixed with four

other products over whose manufacture he has no

control.

Section 96(1) of the Personal Property Law (Uniform

Sales Act) reads, in relevant part, as follows:

**1. Where the buyer, expressly or by implica-

tion, makes known to the seller the particular pur-

pose for which the goods are required, and it appears

that the buyer relies on the seller’s skill or judgment

(whether he be the grower or manufacturer or not),

there is an implied warranty that thé goods shall

be reasonably fit for such purpose.’’

Section 96(4) of the Personal Property Law (Uniform

Sales Act) provides:

‘*4. In the case of a contract to sell or a sale of a

specific article under its patent or other trade name,

there is no implied warranty as to its fitness for

any particular purpose.”’

The third party amended complaint purports to bring

its remedy under subsection 1 of the law and to avoid the

11

effect of subsection 4. The position does not withstand

analysis, since the amended complaint fails to plead a war-

ranty cognizable under subdivision 1, or a breach thereof.

The third party complainant alleges that it purchased

from the several third party defendants quantities of

cleanser to be used in cleaning. In this circumstance, the

maximum onus imposed upon a seller by Section 96(1) is

that his product be ‘‘reasonably fit for such purpose’”’

(cleaning). To obtain the benefit of a broader or different

warranty, it is essential to plead that the buyer either

expressly or impliedly made known to the seller the

particular purpose for which the goods were required and

thereafter relied upon the seller’s skill and judgment in

supplying them.

The complaint, however, giving it every fair extension

of meaning, fails to allege any facts from which the adum-

bration may be sensed that the third party plaintiff made

known to any of the third party defendants the ‘‘particu-

lar’’ purpose for which the purchase was made, to wit,

the alleged purpose of mixing the products of all the third

party defendants to form a compound cleansing agent.

Nor is there any allegation in which the suggestion may

be found that complainant in purchasing the products sold

by the third party defendants relied upon the sellers’ skill

and judgment in supplying their products.

Thus, complainant suggests that the occurrences of pur-

chase, use and injury indicate breach of warranty, but does

not tell us why. Sequence does not mean consequence.

Complainant has in effect pleaded warranty by each of the

suppliers that its product was fit and safe for use as a

cleanser and has followed by pleading the breach of an

entirely different warranty, a particular warranty, a war-

ranty that could be pleaded only as an express one and not

subsumed under Section 96(1), to wit, that the third party

12

defendants and each of them impliedly warranted that their

products were fit and safe for cleaning purposes ‘‘when

mixed together or brought in contact with’’ each of the

other products supplied by the other third party defend-

ants. Courts do not ordinarily sustain complaints which

allege the making of one contract and the breach of a dif-

ferent one.

Not only is the third party complaint defective in this

respect, but its implications are astonishing, for the effect

of the pleading, if successful, would be to impose upon

one third party defendant liability under a warranty of

fitness for a particular purpose of products sold by

others to complainant. ‘‘Carbona”’ has mild cleansing prop-

erties when mixed with soap powders, and may be used

with safety if care is exercised in application. But flame

may cause explosion. Conceivably, a soap powder manu-

facturer would be willing to grant an express warranty

that the admixture of his product will not increase the

likelihood of mishap. But is it possible to infer from the

sale of powder alone an implied warranty that it is safe

when brought into contact with any substance with which

the buyer chooses to mix it?

Complainant’s position, therefore, violates the principle

of warranty—contract. An implied warranty is a contract

superimposed by law. Neither exists apart from a sale.

A seller is liable for breach of warranty only in respect

of the goods sold by him. A seller of nylon, e.g., cannot

be held to impliedly warrant that a sweater containing

50% rayon and 50% nylon will contain those properties

usually attributable to sweaters made entirely of nylon.

He makes no implied warranty in respect of goods not sold

by him and has no liability of any nature in respect of

such goods.

13

‘‘Warranty is an incident of a sale. (Levis v.

Pope Motor Car Co., 202 N. Y. 402; Pers. Prop.

Law (Cons. Laws, Ch. 41, $93.)) The complaint

negatives a sale by the defendant to the plaintiff

and any contractual relation between the plaintiff

and the defendant. There can be no warranty

where there is no privity of contract. A cause of

action for breach of warranty, either express or

implied, is not, and cannot be, stated,’’ Turner

v. Edison Storage Battery Co., 248 N. Y. 73, 74.

Similar conclusions apply to the claim of breach of

warranty of merchantability. Each third party defendant

is liable only for breach of its own implied warranty

of merchantability. Merchantable quality has been defined

as ‘‘good enough delivery to pass generally under that

description after full examination.’?’ McNeil & Higgins v.

Czarnikow-Rienda, 274 Fed. 397, 399 (D.C. S.D. N. Y.

1921); ‘‘Medium quality of goodness,’’ Howard v. Hoey,

23 Wend. 350. See, also, Grant Manufacturing Company

v. Yates-American Machines, 111 Fed. (2d) 360, 365 (C.A.

8th Cir., 1940), and Prosser, The Implied Warranty of

Merchantable Quality, 21 Can. Bar J. 446, 458, et seq.

(1943). There is no allegation in the amended third

party complaint that the product manufactured and sup-

plied by each individual third party defendant did not

conform to these standards. ‘‘Merchantability’’ is not in

the case.

Finally, a reading of the amended third party complaint

reveals that the third party defendants sold their products

under their respective trade names, ‘‘Oakite,’’ ‘‘Pride,’’

ete. Section 96(4) of the Personal Property Law, quoted

supra, excludes an implied warranty of fitness for any

particular purpose of a specified article sold under its

patent or trade name.

14

In Ellen v. Heacock, 247 App. Div. 476 (4th Dept., 1936),

the action was for damages for alleged breach of war-

ranty in the sale of an oil burner known as a ‘“‘Delco

Oil Burner.’’ Plaintiff relied on implied warranty of

fitness. The Court, in holding for defendant, said at p.

478:

‘““The subject of the sale was a ‘Delco Oil

Burner,’ a specified article sold under its patent

or trade name. Under such circumstances there

ean be no implied warranty as to fitness for any

particular purpose.”’

See, also, Bareham & McFarland, Inc. v. Kane, 228 App.

Div. 396 (4th Dept., 19380); Ryan v. Progressive Grocery

Stores, Inc., 255 N. Y. 388 (1931) ; Collela v. Smith Freden-

burg, 239 App. Div. 274 (4th Dept., 1933), aff’d. 266 N. Y.

641; Sure Seal Company v. Loeber, 171 App. Div. 225 (1st

Dept., 1916); Bencoe v. McGraw, 208 N. Y. Supp. 4 (ist

Dept., 1925).

It is true, as pointed out in the opinion of Judge Clark

below, that ‘‘the mere fact that the article happened to

have a trade name does not, per se, bring the sale within

its provision and, second, that even if it does the section

does not necessarily exclude the warranty contained in the

second subdivision.’’ With respect to subdivision 4,

admittedly the factual issue may arise, if properly pleaded,

as to whether the purchase by brand name was such that

the buyer relied on the seller’s skill and judgment despite

the purchase of a product having a brand name. The:

third party complaint, however, did not allege such reli-

ance and, in fact, alleged that quantities of third party

defendants’ products were supplied ‘‘under the brand

name[s].’’

No proper breach of warranty has been pleaded and the

Cireuit Court should have affirmed the District Court’s

decision.

15

POINT Il

No duty exists on the part of a manufacturer to

warn of the consequences, if any, resulting from the

mixing of his product with four other products over

whose manufacture he has no control—local decisions

are in conflict with the Circuit Court’s holding below.

The Court below has said that it ‘‘cannot see that there

is no legal basis in any event for a claim of liability’’ and

that ‘‘upon the allegations before us, there would appear

to be at least a possibility of liability against the suppliers

for breach of warranty and against all the defendants for

negligence as alleged. True, one naturally tends to view

with some skepticism so unusual an accident, as well as

the extensive claims made as to it.’’ It is submitted that

under any reading of the pleadings no claim for relief is

stated.

In order to establish liability in tort for negligence there

are four necessary elements:

1. Duty;

2. Failure to do what a reasonable man should

have done or doing what a reasonable man should

not have done;

3. Proximate cause;

4. Damage.

These principles are well set out in Prosser on Torts, at

page 177. Prosser says:

‘61, A duty or obligation, recognized by the law,

requiring the actor to conform to a certain standard

of conduct for the protection of others against un-

reasonable risks.

16

**2. A failure on his part to conform to the

standard required. These two elements go to make

up usually what the courts have called negligence,

but the term occasionally is applied to the second

alone.

‘**3. A reasonably close causal connection between

the conduct and the resulting injury. This is what

is commonly known as ‘legal cause’ or ‘proximate

cause.’

‘*4. Actual loss or damage resulting to the inter-

ests of another. * * *”’

The manufacturing third party defendants contend that

the third party complaint was properly held to be deficient

by the District Court as to the second cause of action in

that it certainly lacks the first and third of these elements

and probably also lacks the second.

A. The Third and Fourth Party Defendants Vio-

lated no Duty, or Obligation, Requiring them

to Conform to any Standard of Conduct for

the Protection of Others against Unreasonable

Risk. (Prosser’s First Element.)

As indicated in our general discussion of negligence

liability, supra, in order for there to be a liability of a

manufacturer in this instance, there must be shown to

have been a violation of a duty such manufacturer owed

to the original plaintiff and/or the Grace Line. Whether

or not such a duty exists is always a question of law for

the court.

As Prosser puts it, at page 374:

‘The determination of any question of duty—that

is, whether the defendant stands in such a relation

to the plaintiff that the law will impose upon him any

obligation of reasonable conduct for the benefit of

the plaintiff. This issue is one of law and is never

for the jury.’’ (Emphasis supplied.)

17

The New York Court of Appeals is on all fours with

this view. Palsgraf v. Long Island Railroad Co., 248 N. Y.

339; see, also, Morril v. Morril, 104 N. J. L. 557, 142 A.

337; Ship v. Fridenberg, 132 App. Div. 782 (1st Dept.,

1909); Korn v. Capital Hall, Inc., 69 N. Y. S. (2d) 248

(App. Term, Ist Dept., 1947); Kalinowski v. Joseph T.

Ryerson & Son, 272 N. Y. S. 759 (App. Div., 4th Dept.,

1934).

Having thus determined that the general question of

duty in a negligence action is one for the court, we now

get down to a discussion of what duty is owed by a manu-

facturer to persons other than the immediate purchaser

from the manufacturer.

The general proposition of law, from which we concede

there has been considerable whittling over the years, is

that a manufacturer is not liable in negligence for injuries

resulting from the use of goods manufactured by him

except to persons with whom he is in privity of contract.

Winterbottom v. Wright, 10 M. & W. 109 (Ex. 1842).

There have been numerous exceptions to that fundamental

doctrine which have been considered by the courts of

New York. Early in the famous case of Thomas v. Win-

chester, 6 N. Y. 397, the New York Court of Appeals held

that a manufacturer could be held liable to persons not in

privity with the manufacturer if the article involved was

‘‘inherently dangerous.”’ (The commodity involved in

the Thomas case, supra, was poison which had been

improperly labeled.) With the passage of time, the

category of ‘‘inherently dangerous things”’ became some-

what expanded, although nothing as harmless as a soap

powder appears to have been determined to be inherently

dangerous.

In the celebrated case of MacPherson v. Buick Motor

Co., 217 N. Y. 382, the Court extended the exception of

18

doctrine of the Winterbottom case, supra, to articles

which, though not inherently dangerous themselves, were

‘*reasonably certain to place life and limb in peril when

negligently made.’’ In addition to the doctrine of the

MacPherson case, supra, another exception to the general

proposition of the Winterbottom case, swpra, is spelled out

by a line of cases, representative of which is Huset v.

J. I. Case, 120 Fed. 865. This exception one might term

the ‘‘natural use’’ exception. A quotation from the Huset

case, supra, puts clearly the meaning of the natural use

doctrine:

*«* * * one who makes or sells * * * an article

of merchandise designed and fitted for a specific

use is liable to the person who, in the natural course

of events, uses it for the purpose for which it was

made or sold, for an injury which is the natural and

probable consequence of sale.’’

The language used in the Huset case apparently has its

derivation from the famous English case of Heaven v.

Pender, 11 Q.B.D. 503 (C.A. 1882), where Brett, the

Master of the Rolls, says:

‘*Whenever one person supplies goods. or

machinery, or the like, for the purpose of being

used by another person, under such circumstances

that everyone of ordinary sense would, if he

thought, recognize at once that unless he used

ordinary care and skill with regard to the condition

of the thing supplied, or the mode of supplying it,

there will be danger of injury to the person or

property of him for whose use the thing is supplied

and who is to use it, a duty arises to use ordinary

skill as to the condition or manner of supplying

such things.”’

Except for these exceptions a manufacturer is not liable

to a user with whom he is not in privity. That is: there is

19

no liability: (1) unless the product was ‘‘inherently

dangerous’’ (soap powder is certainly innocuous—it is

not a poison or an explosive) or (2) unless the product

is “‘reasonably certain to place life and limb in peril when

negligently made’’ (Swift’s soap powder, to cite an

instance, [unlike an automobile] is not reasonably certain

to place life and limb in peril—and there is no allegation

in the third party complaint that such soap was negligently

made) or (3) unless the product causes injury when it is

put to a use for which it was intended (it would appear

crystal clear, we submit, to any person of common sense

that Swift & Co., for instance, did not manufacture a soap

powder [or that the Oakite Company did not manufacture

‘‘Qakite’’] to be used in conjunction with lye, acid, and

other things).

It therefore seems to us abundantly clear that the

amended third party complaint in the second cause of

action does not come within any of these exceptions to

the general rule of the Winterbottom case. There is no

pleading that the four products are inherently dangerous

or that they were improperly made or that they were of

such a nature as to be likely to cause damage if improperly

made, and, from the face of the pleadings, they appear to

have been used in a manner for which no reasonable man

could have suspected they would be used.

Consequently, following our premise through its logical

steps, it would appear there was no duty owing by the

manufacturing third party defendants to the plaintiff or

the third party plaintiff. There being no such duty there

is no claim for relief stated.

20

B. The Accident Did Not Have Such a Reason-

ably Close Causal Connection with the Injury

as to Make any Manufacturing Third Party

Defendant’s Conduct the Proximate Cause of

the Alleged Injury. (Prosser’s Third Ele-

ment.)

As we have demonstrated above in our quotation from

Prosser, in order for there to be recovery by either the

plaintiff or the Grace Line against any manufacturing

third party defendant, it must be shown that the conduct

of such third party defendant was the proximate cause

of the damage.

Assuming for the purpose of argument that the amended

third party complaint contained language sufficient to allege

proper proximate cause, we submit that even then the

third party complaint would not state a claim upon which

relief can be granted because from the face of the pleading

the cause of the accident is demonstrated to be so remote

from the harm that a reasonable man could not have

anticipated that it would occur. We argue therefore for

the proposition that there are circumstances in which the

question of proximate cause is one for the court and not

for the jury. These circumstances, which we submit are

here present, are when it is clear that a reasonable man

could not be expected to anticipate the harm because of its

remoteness from the cause. Stated another way: When

the cause is clearly not ‘‘proximate’’ the court and not

the jury must decide. If it is true that there cannot be

‘negligence in the air’’ there should be a duty. Yet we

have demonstrated there was no duty.

In Odgis v. Popock, 91 N.Y.S. (2d) 410 (Sup. Ct,

1949), plaintiff, a second hand car dealer, sued defendant

in negligence. Defendant owned a car which was stolen

21

by a third party and which had been purchased by the

plaintiff from the third party for $1,700. Plaintiff claimed

that the defendant, who rented the car to the third party,

was negligent for having failed to post a certificate on

the car to the effect that it was bonded for rental as was

required by statute. The court did not send the case to

the jury but dismissed the complaint, and held that the

defendant was entitled to judgment on the ground that the

defendant’s violation of the statute was not the proximate

cause of the plaintiff’s harm, since he was not chargeable

with anticipating the third party’s conduct. This proposi-

tion seems to us to be the more true in this case. The

manufacturing third party defendants could not possibly

anticipate the conduct of the plaintiff in mixing together

his exotic combination of acids, caustic sodas, and what-

nots. For similar cases where courts take the question

of proximate cause away from a jury because of the

remoteness of the causation from the harm, see Ship. v..

Fridenberg, supra, Korn v. Capital Hall, Inc., supra,

Kalinowski vy. Joseph T. Ryerson & Son, supra.

Grace Line contends that the allegation in their third

party complaint to the effect that the third party defend-

ants ‘‘knew or could have easily ascertained * * * that

each of the products when mixed was dangerous and liable

to explode,’”’ raises a question for the jury to determine.

Petitioners contend that any state of facts proven under

this allegation must of necessity be so remote as not to

give rise to a cause of action. In other words, it still is

past the boundaries of reasonableness to assume that any

manufacturer.or any person selling merchandise must take

care to see that his product is not mixed with numerous

other products.

As the court said in the MacPherson case, supra, at

page 389:

22

‘‘There must be knowledge of a danger, not

merely possible, but probable. Jt is possible to use

almost anything in a way that will make it dan-

gerous if defective. That is not enough to charge

the manufacturer with a duty independent of con-

tract.’’ (Emphasis supplied.)

See also:

Bird v. St. Paul, 224 N. Y. 47;

Schfranek v. Benjamin Moore & Co., 54 Fed. 2d,

76 (D.C. S.D. N.Y. 1931).

Assuming arguendo that it is true that when one of the

products, such as Swift’s soap powder, is mixed with

appropriate quantities of lye, oxalic acid and Oakite an

explosion occurs, then it must follow that the possibilities

of this are so remote that the danger, in the words of the

MacPherson case, is not ‘‘probable’’ but only ‘‘merely

possible.’’ Almost anything that is manufactured when

mixed with something else can become an explosive. For

instance, gun cotton consists of TNT and cotton. A suit

by someone injured by an explosion of gun cotton against

a Southern planter who raised the cotton, we think, has

as much validity as the cause of action sought to be

sustained here.

A related enunciation of the principle that the duty of

a manufacturer is tempered by the relative probability

of the damage complained of is contained in the case of

Kalfayan v. Compagnie Francais de Navigation a Vapeur,

257 N. Y. 572, where it was held that one who purchased

a washbasin which was intended to be used as a hand basin

washed his feet in the basin and the basin broke there

could be no recovery because the basin was used for a pur-

pose other than that for which it was sold.

23

Further, it needs little authority to establish the legal

principle that a tort-feasor is not liable for the conse-

quences of unforeseeable intervening forces. Quill v.

Empire State Telephone & Telegraph Co., 159 N. Y. 1;

Reiss v. Kirkman & Son, Inc., 242 App. Div. 7%

As Prosser on Torts puts it, at page 364:

‘Tf the defendant can foresee neither any danger

of direct injury, nor any risk from an intervening

force, he is simply not negligent. Negligence can-

not be predicated upon a failure to anticipate that

extraordinary and unprecedented rainfall will flood

the streets, that a pedestrian will slip and fall upon

an apparently safe highway, that the wind will blow

a door latch against the eye of a boy, or that a ribbon

held across a street to stop a wedding procession

will cause one carriage to run into another.”’

It is quite obvious from the state of the pleadings that

none of the manufacturing third party defendants could

ever have anticipated that all this mixing would go on.

There are over a thousand soap powders and detergents

on the market. Assume that each of these contains four

chemical elements, and then consider the mathematical

probability of just the right four coming into contact with

one another under the proper circumstances and in the

proper amounts so as to create an explosion of the type

that is alleged to have occurred here. Is it foreseeable that

any person would concoct such a witch’s brew? Must

everyone of the manufacturers of soap powders and deter-

gents make chemical analysis of over a thousand of his

competitor’s products to determine whether the mixing

of one or four or 702 of them will cause an explosion? The

answer is simple: There just is no such foreseeability and

hence no such liability.

24

C. Local Law is in Conflict With the Opinion

Below.

The law of the State of New York seems clear that when

different products are brought together, which products

could not reasonably ‘be expected to have been brought

together, and the bringing together of these products

causes an accident, that there is no recovery.

In Boyd v. American Can Co., 249 App. Div. 644 (2nd

Dept., 1936), the plaintiff was injured by using a key to

open a coffee can and brought suit against the can manu-

facturer and the key manufacturer. The court denied

liability as to either manufacturer. We quote the Appel-

late Division’s memorandum in full, as it clearly enunciates

our legal position heretofore taken in this brief:

‘‘ErxEEN Boyp and Davin Boyp, Respondents, v

American Can Company, Sued Herein as AMERICAN

Can Co., Appellant, and Others, Defendants.— |

Order denying motion of the defendant American |

Can Company to dismiss the complaint reversed on

the law, with ten dollars costs and disbursements,

and motion granted, with ten dollars costs. Neither

the can nor the key is inherently or imminently

dangerous within the rule laid down in MacPherson

v. Buick Motor Co. (217 N. Y. 382). Each is an

appliance in ordinary use and not an article which,

if imperfectly constructed, is reasonably certain to

cause injury to a person using it. The appellant

manufacturer may not be charged with negligence

where some unusual result occurs that cannot rea-

sonably be foreseen and is not within the compass

of reasonable probability. It is not enough that in

the intended use injury is possible. (Cullem v.

Renken Dairy Co., 247 App. Div. 742, and cases

cited.) Young, Hagarty, J — Adel ‘and Taylor,

JJ., concur.”’

ee

25

See, also, Traynor v. United Cigar-Whelan Stores, 274

App. Div. 800 (2nd Dept., 1948), and the Massachusetts

ease of Davidson v. Nichols, 11 Allen 514 (1866).

D. The Only “Mixing” Case in the Second Circuit is

Distinguishable.

We come now to a discussion of the case of Pease v.

Sinclair Refining Co., 104 Fed. (2d) 183 (C.C.A. 2nd, 1941),

which is apparently relied upon by Grace Line and the

court below. In the Pease case, supra, plaintiff, a chemis-

try teacher, in response to literature sent in by the defend-

ant corporation, wrote the defendant asking that he be sent

samples of petroleum products to use for demonstration

purposes in his chemistry class. The defendant sent him

what purported to be samples of various petroleum

products, each of which sample contained a label with the

name of the material supposedly contained therein. How-

ever, the label on one of the samples was improper so that

one day while demonstrating the qualities of sodium and

in order to show that sodium is well preserved in kerosene,

plaintiff poured the contents of the bottle marked ‘‘kero-

sene’’ on to the sodium. In fact, the bottle did not contain

kerosene and had been mislabeled. The result was an

explosion and an injury to the plaintiff. The Circuit Court

held that these facts constituted a cause of action. He who

runs may read. There was negligent mislabeling in the

Pease case and nothing remotely like what happened in the

instant case. If the bottles were not mislabeled by the

defendant corporation in the Pease case there would have

been no explosion. Supposing the bottles in the Pease

case were properly labeled? Supposing the chemistry pro-

fessor put the wrong things together as the plaintiff

apparently did here? Could the Court in the Pease case

26

have then said that there was a cause of action pleaded?

Further, in the Pease case there was, in addition to the

affirmative negligence in mislabeling, privity between the

parties. In the instant case, in so far as the manufacturing

third party defendants are concerned, there was no privity

between the parties.

Further, in the Pease case it was reasonably to be antic-

ipated that injury might result from the use of negligently

labeled material in a potentially dangerous situation such

as the chemistry class. Contrast that with the fact situa-

tion alleged in the third party complaint. Swift, for in-

stance, did not mislabel anything. None of the manufac-

turing third party defendants supplied the product

directly to the plaintiff. In addition we submit that this

Court can take judicial notice that a soap powder is a

universally used product sold to millions of people and is

not intended to be used in combination with acids and lye:

Ergo, since the matter of negligence here is one for the

court and not for a jury, the court should now dismiss the

complaint.

POINT Ill

In an action under the Jones Act, a third party

plaintiff cannot implead third party defendants whose

liability is governed by different rules of law.

The third cause of action alleged in the amended third

party complaint seeks contribution from the third party

defendants on the ground that they were joint tort-

feasors and are jointly liable to plaintiff for his injury.

The effect of this claim is to posit the third party

defendants as targets for liability under the Jones Act.

27

Plaintiff has not elected to and could not elect to join

third party defendants in his action under the Jones

Act, since they were not his employers. Cosmopolitan Co.

vy. McAllister, 337 U. S. 783, 789-790 (1949).

The position is anomalous. The Jones Act is a special

remedial or welfare statute, passed for the express pur-

pose of affording relief to seamen when injured in the

course of their employment by their ‘‘employers,’’ and

establishing a special standard of liability not obtaining

elsewhere in the law of negligence. It eliminates the

necessity for the plaintiff to prove his own freedom from

contributory negligence. It eliminates further assumption

of risk and negligence of a fellow servant as complete

defenses by the employer. Federal Employers Liability

Act, 45 U.S.C.A. 53 and 54; Socony-Vacuum Od Co. v.

Smith, 305 U. S. 424 (1939) ; Becker v. Waterman Steam-

ship Corporation, 179 F. (2d) 713 (C.A. 2nd, 1950) ; 46

U.S.C.A. §688. Under General Maritime Law (as distin-

guished from the Jones Act), still prevailing should an

injured seaman elect to sue thereunder, there is no

right of recovery for injuries to a seaman resulting in

death. Further, assumption of the risk and the fellow

servant rule are complete defenses.

Had plaintiff elected to proceed against the third party

defendants, he could have done so only under the General

Maritime Law and not under the Jones Act, since the rela-

tion of master and servant did not exist between plaintiff

and third party defendants, and the defenses of assump-

tion of the risk and of the negligence of a fellow servant

would be available to the third party defendants. The

Osceola, 189 U. S. 158, 175 (1903). Assumption of the

risk and contributory negligence would be complete

defenses at least to the extent of third party defendants’

liability over to third party plaintiff. Even if Grace Line

28

had a substantial basis for its claim to contribution in a

separate action against the third party defendants, it would

be necessary for the Grace Line in its complaint to allege

and prove that the plaintiff was not contributorily negli-

gent, that he did not assume the risk of injury, and that

his injury did not result from the negligence of a fellow

servant.

Third party plaintiff and third party defendants cannot

therefore be considered joint tort-feasors in an action

against third party plaintiff under the Jones Act, since

liability under the Jones Act is not common to third party

plaintiffs and third party defendants. The test of the pro-

priety of joinder is whether the parties claimed to be

jointly liable are under a common duty to the person

injured.

‘*Joinder usually is permitted where it can be found

that the defendants were under a common duty, as

in the case of the fall of a party wall, or the failure

of two defendants to keep property in repair.’’

Prosser on Torts, Horn Book Series, Sec. 109, p.

1099, and cases cited therein.

In American Mutual Liability Insurance Co. v. Matthews,

182 F. 2d 322 (1950), the court pointed out that to con-

stitute joint tort-feasors for purposes of contribution, a

common liability must exist. At p. 323, the court said:

‘‘For a right of contribution to exist between tort-

feasors, they must be joint wrongdoers in the sense

that their tort or torts have imposed a common

liability upon them to the party injured.”’

The court cited A.L.I. Restitution $86; Erie R. Co. v. Erie

Transportation Co., 204 U. S. 220, 27 S. Ct. 246, 51 L. Ed.

450; Lehigh Valley R. Co. v. Cornell Steamboat Co., 218

U. S. 264, 31 S. Ct. 17, 54 L. Ed. 1039, 20 Ann. Cas. 1235;

_

29

“The Wonder, 2 Cir., 79 F. 2d 312; Porello v. United States,

2 Cir.; 153 F. 2d 605, 607 (dictum).

Third party plaintiff has a much more exacting duty to

plaintiff created by statute than any duty owed plaintiff

by the third and fourth party defendant-petitioners. It

cannot be said, therefore, that third party plaintiff and

third party defendants were under a common duty. They

cannot be classified, therefore, as joint tort-feasors. Noth-

ing in the Federal Rules of Civil Procedure has changed

this substantive rule of liability.

The case of Spaulding v. Parry Navigation Co., 90 F.

Supp. 567 (S.D. N.Y., 1950), is the principal authority we

can find dealing with this point in the Federal courts. It

was held therein by I. Kaufman, J., in the District Court

that a non-employer could be impleaded as a third party

defendant and could be required to contribute in an action

against the third party plaintiff under the Jones Act. On

appeal to the Court of Appeals for the Second Circuit,

Judge Kaufman was reversed in 187 Fed. (2d) 257 (C.A.

2nd, 1951) on the ground that this was not a proper case

for contribution among joint tort-feasors. The injury not

resulting from joint negligence, and therefore not giving

rise to a common liability under the Jones Act, defeats

third party plaintiff’s right to contribution. Ader v. Blau,

241 N. Y. 7 (1925).

Since it could not have been intended by the framers of

the Federal Rules of Civil Procedure to permit joinder in

a situation where the substantive rules of liability do not

warrant recovery by way of contribution, it is respectfully

submitted that third party plaintiff’s third cause of action

fails to state a claim upon which relief can be granted.

30

POINT IV

The judgment below should be reversed in all

respects.

Respectfully submitted,

LowELL WapMmonp,

Counsel for Petitioners.

LowELL WapMonnD,

Davip HartTFIELp, JR.,

DonaLp Cronson,

Joun W. Burke, JR.,

Burton H. Bropy,

Earte J. STARKEY,

Vincent A. Catoaero,

Paut M. Kier,

Witsur M. Jongs,

I, Arnotp Ross,

Water E. Warner, JR.,

Bernakp GosTKOWSKEI,

Of Counsel.

No. 3.99

Supreme Court of the Uni

Ocrosss Tamu, 1951. | oy 17 1951

CHARLES ELMOSE fo @

ALEJANDBO PaBELLON, CER

Plaintiff-Respondent,

against

Grace Lixz Ixc.,

Defendant and Third Party

Plaintiff-Respondent,

against

Coston Suppiy Company, Rupman & Scortep, Unc., Dukes

Company, Inc., Deansonn Cuemicat Co., Oaxrre Company

and Swirt & Co.,

Third Party Defendants-

Petitioners,

and

Ropman & Scortetp, Inc.,

Fourth Party Plaintiff-

Petitioner,

against

McKesson & Rossrns, IxconporaTen and Oty Busy Execrro-

Cuemicat Co.,

Fourth Party Defendants-

Petitioners.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT.

STaTEMENT.

Alejandro Pabellon, a seaman employed by Grace Line

on the 8S. Santa Isabel, alleges that he was injured by an

explosion while cleaning aboard the vessel, which was

caused while he was mixing together four commonly used

—

householding cleaning agents, namely, Pride washing

Powder, Oakite, oxalid acid and caustic soda or lye. Grace

Line has been sued by Pabellon, who alleges that Grace

Line should have foreseen the result and warned him of

the consequences of mixing the cleaners together. Grace

Line has impleaded the manufacturers and suppliers under

Rule 14 of the Federal Rules of Civil Procedure. The

third party complaint alleges, in substance, that if Grace

Line is to be held liable to plaintiff on such a theory, it

should recover from the various third party defendants on

the same grounds. The third party defendants moved to

dismiss the third party complaint on the ground that it

failed to state a cause of action. Grace Line also moved

to dismiss the plaintiff’s complaint on the same ground.

Grace Line’s motion was denied but that of the third party

defendants was granted. Because of the non-finality of

the order denying the motion to dismiss plaintiff’s com-

plaint, Grace Line could not appeal that order. It did

appeal:from the order dismissing the third party complaint

and the Court of Appeals reversed. This petition is not

concerned with the order denying Grace Line’s motion to

dismiss plaintiff’s complaint, except insofar as it furnishes

a criterion for the disposition of this petition for a writ of

POINT I.

"PHE DECISION OF THE COURT OF APPEALS THAT THE THIRD

PARTY COMPLAINT STATES A CAUSE OF ACTION IS INTERLOCUTORY

AND NOT FINAL; THE ONLY QUESTION PRESENTED IS WHETHER

THE THIRD FARTY COMPLAINT IS SUFFICIENT AS A PLEADING.

The order from which the appeal is taken holds that

under the Federal Rules of Civil Procedure, the third party

complaint sets forth claims upon which relief can be

granted. It merely holds that as a matter of pleading, the

siedscbeaaceiatnlas

_

third party complaint is sufficient. Under established law,

therefore, the order is non-final and does not determine any

issues as between Grace Line and the third party defend-

ants.

It is a well settled rule of this court that it will not

exercise its power to review interlocutory orders or decrees

except in extraordinary cases. This case does not call for

the exercise of that power.

The third party complaint sets forth three claims for

relief. The first is against the suppliers of the cleansers

to Grace Line and is founded upon breach of warranty ; the

second claim is for indemnity from both the manufacturers

and the suppliers, and is based upon theories of negligence ;

the third claim is based upon negligence under the maritime

law wherein Grace Line seeks contribution from both the

manufacturers and suppliers if it should be found that all

are in joint fault.

The third party complaint more than meets the test

defined in Hickman v. Taylor, 329 U. S. 495, 501, viz., that

the task of a pleading is restricted to general notice giving.

After reading the third party complaint, no one can doubt,

and the third party defendants have had no difficulty in rec-

ognizing, the nature of the claims pleaded. The Court of

Appeals, therefore, was correct in reversing the district

court and in holding the Grace Line pleading sufficient.

See

Dioguardi v. Durning, 2 Cir., 139 F. 2nd 774;

Burt v. City of New York, 2 Cir., 156 F, 2d 791;

Bomar v. Keyes, 2 Cir., 162 F. 2d 136;

Chicago & N. W. R. Co. v. Chicago Packaged

Fuel Co., 7 Cir., 183 F. 2d 630;

Continental Collieries Inc. v. Shober, 3 Cir., 130

F, 2d 631;

4

Clyde v. Broderick, 10 Cir., 144 F. 2d 348;

Demnis v. Village of Tonka Bay, 8 Cir., 151 F. 2d

411;

Asher v. Ruppa, 7 Cir., 173 F. 2d 10;

Barron and Holtzoff, Federal Practice and Pro-

cedure, Sec. 255, 356;

Moore’s Federal Practice, Sec. 12.08.

The petitioners assert in their brief that as a matter of

law, it could not be foreseen that plaintiff would mix the

various cleaners in such a way as to cause this unusual

accident. They use such language as ‘‘The manufacturing

third party defendants could not possibly anticipate the

conduct of the plaintiff in mixing together his exotic com-

bination of acids, caustic sodas and whatnots’’ (p. 21 of

Petitioners’ brief). ‘‘Is it foreseeable that any person

would concoct such a witch’s brew?’’ (p. 23 of Petitioners’

brief). See also pages 19 and 20 of Petitioner’s brief. It is

true that the accident is bizarre and unusual. Yet, plaintiff

seeks to hold Grace Line responsible on just such a theory.

It would seem clear that if Grace Line can be held responsi-

ble to the plaintiff on that basis, the Grace Line, by a parity

of reason, should be entitled to recover from the manu-

facturers and suppliers.

It is premature to decide as a matter of law that on the

pleadings alone, the third party complaint does not state

grounds for relief. That question can be decided only after

a trial of the issues; and a trial may make the questions

raised here moot.

POINT II.

THERE ARE NO MATTERS OF IMPORTANCE OB SPECIAL SIGNIFI-

CANCE TO CALL FOR THE EXERCISE BY THIS COURT OF ITS DISORE-

TION TO ISSUE A PREMATURE WRIT OF CERTIORARI.

A. There are no important questions of federal law

involved. There is no conflict between the Jones Act and the

liberal third party practice provided by the Federal Rules

of Civil Procedure.

B. The decision below as to the local law is not in conflict

with decisions of the courts of the State of New York.

A.

This case is one involving a suit by a seaman against

his ship owning eniployer under the Jones Act. 46 U.S. 0. A.

§688. Prior to the enactment of the Jones Act, a ship-

owner was not liable to its seamen for negligence. It was

liable only for the unseaworthiness of the vessel and for

the maintenance and cure of its sick and injured seamen.

The Jones Act, by incorporating the provisions of the

Federal Employers’ Liability Act, 45 U. 8. C. A. $51, e¢

seq., made a shipowner liable to its seamen employees for

negligence; negligence, however, based on common law

theories. In other words, the Jones Act did not create

new grounds of negligence as between seamen and employer,

it merely made applicable to that relationship the old

theories which had previously been applied to master and

servant relationships ashore. At the same time, it abol-

ished the defense of assumption of the risk, made the

defense of contributory negligence one of mitigation rather

than a complete bar as at common law, and wiped out the

fellow servant doctrine. It.did not, as petitioners argue,

prevent a seaman from joining in a Jones Act action against

his employer, a third party. action against one not his

employer, if-both actions were based upon the same injury

and occurrence,. Just because one of the defendants may be

his ship owning employer, does not mean that the seaman

may not join in one suit whatever claims he may have

against third parties. A. seaman’s right to sue everyone

responsible for his injury is not lessened by reason of the

fact that one of his claims may be founded on the Jones

Act. To hold otherwise would be to deprive a seaman of a

substantial right. If the seaman can join such third

parties, it follows that his employer can implead them.

It is true, as petitioners assert, that this court has never

squarely passed upon that precise question but that is

because it has never been. supposed that a seaman had less

right to so proceed than any other litigant.

It has been suggested that a Jones Act suit should be

tried, separately from a third party claim because of pos-

sible complication of issues for a jury, but with one known

exception, the question has been decided adversely to the

position taken. by petitioners.

Spaulding v. Parry Navigation Company, 2 Cir.,

187 F. 2d 257 pet. for cert. filed May 8, 1951,

sub. nom. Parry Navigation Co., Inc. v. Todd

Shipyards Corp. No. 54.

Jones v. Waterman 8.8. Corp., 8 Cir., 155 F 2d

992;

O'Neill v. American Export Lines (8S. D. N. Y.),

5 F.R. D. 182;

Lawrence v. Great Northern Ry. Co. (D. C.

Mimn.), 98 F. Supp. 746;

Bohn v, American Export Lines (8. D. N. Y.),

42 F. Supp. 228;

q

Greenleaf v. Huntingdon é B..T. M. BR. & Coal

Co. (E. D. Pa.), 3 F. B. D. 24; 7

Culmer v. Baltimore @ 0. R: Co..(W. D. Pa.), 1

F. R. D. 765;

Newsum v. Pennsylvania R. Co. (8. D. N. Y.),

79 F. Supp. 225.

Contra, Ginsburg v. Standard Oil Co. (8. D.

N. Y,), 5 F. BR. D.48.. But compare, Ginsburg

vy. Standard Ou Co., 5 F. BR. D. 50, on reargu-

ment.

In an analogous situation this court has implied that

there is no obstacle to a seaman’s (longshoreman) joining

a suit against a shipowner with one against a shipyard when

the law governing recovery was different as to each defend-

ant. Seas Shipping Company v. Sieracki, 328 U. 8. 85. In

that case the court was dealing with unseaworthiness under

the general maritime law. Under the maritime law, a ship-

owner impliedly warrants to seamen (longshoremen) that

the vessel is seaworthy in all respects. In the Sieracki case,

the vessel was found to be unseaworthy. Steracki had sued

the shipowner and also the shipyard which constructed the

vessel. The lower court found the shipbuilding company

to be negligent in failing to furnish a proper appliance.

It also was held that, although the shipowner was free from

negligence, it had breached its implied warranty of sea-

worthiness and, accordingly, it was held responsible to the

injured longshoreman on that ground. In the course of

its opinion, the court said at page 89:

‘‘Bqually unavailable is the contention coneerning

the secondary character of petitioner’s liability. That

liability, if it exists, not only sounds in tort, but rests

upon an entirely different basis from that upon which

recovery has been had against the Bethlehem com-

panies, Such @ liability therefore would be not joint

but several and the judgment of the Court of Appeals

obviously went on this view. Moreover the con-

tention necessarily affects the Bethlehem companies,

at any rate in relation to possible claim of indemnity

by petitioner. They have not been named as respond-

ents here or served in accordance with Rule 38 (3).

Consequently we are precluded from making any

determination concerning their rights or liabilities,

with relation either to petitioner or to respondent.’’

This language clearly implies that the court found no

procedural obstacle to permitting Sieracki to sue both the

shipowner for breach of warranty of seaworthiness, and

the Bethlehem Steel Company for negligence. It is true

that the suit there was not a Jones Act suit but was one

which arose under the maritime law. Under the doctrine

of unseaworthiness, as under the Jones Act, contributory

negligence mitigates but does not bar recovery.

The Sieracki case and the case at bar present parallel

situations. In the Sieracki case, Sieracki could not have

sued Bethlehem Steel for unseaworthiness. His remedy

was limited to recovery for negligence. His contributory

negligence would mitigate his damages as against the ship-

owner but would completely bar his nant to recover from

Bethlehem Steel.

In the present case, Pabellon could have sued both the

Grace Line and the third party defendants for negligence.

His contributory negligence will merely mitigate as against

Grace Line but would be a complete bar against the third

party defendants just as it would where a railroad employee

sues his employer under the F. E. L. A., 45 U. 8. C. § 51,

and also joins a stranger in the same suit. Lawrence v.

Great Northern Ry. Co. (D. C., Minn.), 98 F. Supp. 746.

The Sieracki case presented a more complicated situa-

tion because there, the right to recover against the ship-

9

owner was based on unseaworthiness unrelated to negli-

gence, whereas the right to recovery against Bethlehem

Steel was based upon negligence. Here, the liability: as

to Grace Line and the third party defendants rests on

negligence alone.

In the lower courts, the difficulty conjured by the peti-

tioners has been readily dealt with by the simple device of

propounding special interrogatories to the jury. Spaulding

vs. Parry Navigation Company, 2 Cir., 187 F'. 2d 257, pet. for

writ filed May 8, 1951, No. 54.

The third party procedure was intended to facilitate

the trial of multiple claims in order to eliminate duplica-

tion of cost and expense, waste of the time of the courts and

litigants and to prevent inconsistent results which might

flow from separate trials.

There is no conflict, as the petitioners urge, between this

third party practice, and a joint trial of a Jones Act suit

with third party claims.

B.

The decision of the Court of Appeals for the Second

Circuit does not conflict with the applicable local decisions.

This assertion, as related to the first cause of action,

has no merit. Petitioners rely on subdivision 4 of Section

96 of the Personal Property Law of the State of New

York. They overlook however, that subdivision 4 is modi-

fied by subdivisions 1 and 2 of that same section.

See Foley v. Liggett € Meyers Tobacco Co., 136

Mise. 468, aff. 232 App. Div. 822;

Ryan v. Progressive Grocery Stores, Inc., 255

N. Y. 388;

Horowite v. Bursens, 198 Misc. 399.

‘Nor is! there: any conflict between ‘the holdings of the

Court of Appeals and local decisions as to the second and

third ‘causes of action based: on negligence. ‘Local deci-

sions make 'it' plain'that'a manufacturer: may be liable to

one not in privity with him under certain cireumstances.

Some of these circumstances are (1) where the product is

negligently manufactured, (2) where it is inherently dan-

gerous, and (3) where its intended use is likely to cause

Campo v. Scofield, et al, 301 N. Y. 468;

Marcus v. Specific Pharmaceuticals, Inc., 82'N. Y.

Supp. 194;

‘See also Lee v. Walworth Co. (8S. D. N. Y.), 1 F.

‘RB. D. 569;

Restatement of the Law of Torts, Sec. 388.

SUMMARY

The plaintiff’s right to recover against Grace Line can

be determined only after a full trial. Likewise, Grace

Line’s right to recover against the third party defendants

can be determined only after there has been a trial of the

issues. It is altogether possible, therefore, that a trial of

the issues may completely dispose of the question which

has been presented by this petition. At any rate, it is

impossible to state that as a matter of law, the third party

complaint fails to set forth grounds for relief.

II

CONCLUSION

Ir 18 BESPECTFULLY SUBMITTED THAT THE PETITION FOR

WRIT OF CERTIORARI BE DENIED BECAUSE OF THE NON-FINAL

CHARACTER OF THE ORDER OF THE Count or APPEALS FOR THE

Szconp Crmcuit AND BECAUSE NO IMPORTANT OB EXTRAOEBDIN ABY

ISSUES ARE PRESENTED BY THIS PETITION.

Respectfully submitted,

Vernon Srus Jones,

Attorney for Respondent, Grace Line Inc.

James B. Macnop,

Of Counsel.