UNITED STATES RADIATOR CORPORATION v. HENDERSON et al., 68 F.2d 87

LEWIS, Circuit Judge (after stating the facts as above). The ease was submitted to the jury on tho issue, whether the fire that consumed plaintiffs’ house and furnishings — “was due to the negligence of the defendant in that the boiler in question, which the defendant manufactured and put upon tho market * * * was negligently and carelessly designed or manufactured in one particular only, in that the smoke hood was not securely fastened to the top of the boiler.” The jury was further instructed: “You must further find that tho act of the defendant in adopting this particular design was

an act itself which was imminently dangerous to the property of those for whose use the boiler was designed and constructed.

Otherwise your verdict must be for the defendant.” Tho jury was further instructed that the mere fact that danger might possibly result was insufficient to make the manufacturer liable for injuries, and it must appear that injury would probably result; that if it was caused by the installation or operation of the boiler, or that those two factors contributed directly to tho fire which destroyed plaintiffs’ property, the finding should be for defendant; that the jury could not find for plaintiffs unless they had proven by a preponderance of the evidence that the direct and proximate cause of the fire was the blowing off of the hood and thereby setting the house on fire.

At the close of all the evidence the defendant moved for a directed verdict, and assigns error in its refusal. . In support of this assignment attention is first called to the fact that the furnace was not sold to Henderson, hence there was no contractual relation between the parties; that no distinction can be drawn between a manufacturer of furnaces and a manufacturer of threshing machines; that a threshing’ machine under the classification set out in Huset v. J. I. Case Threshing Mach. Co. (C. C. A.) 120 F. 865, 61 L. R.

A. 303, where the injury was to a third person, was placed in the third exception stated in the opinion in that caso, in which exception actual knowledge of tho imminence of danger to life and limb is a requisite element; and it is argued that auless tho furnace can be brought under the first exception in the Iluset Case, which does not require proof of knowledge of imminent danger, tlsat appellant is not liable. The Huset Case was cited with approval and in part at least relied upon in Hruska v. Parke, Davis & Co. (C. C. A.) 6 F.(2d) 536, and Lynch v. International Harvester Co. (C. C. A.) 60 F.(2d) 223.

It is impliedly, if not expressly, conceded however by counsel that where the

article involved is inherently and imminently dangerous actual knowledge on the part of the manufacturer of tho danger need not bo proven. Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N. E. 474, 491: “Proof, however, of actual knowledge is not required where the

article is so made up as to be inherently harmful. The manufacturer who puts or causes the component parts to he put together, or accepts them as his own after they are assembled, must be presumed to know the nature and quality of the resultant compound which he solicits the public to purchase.” But we answer the contention with the opinion in MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann.

Cas. 1916C, 440, which has been so widely followed in both state and Federal courts, wherein false labels on poisons (included in the first exception to tho Iluset Case), a defective scaffold for workmen, a defective coffee urn, and a defective automobile wheel are included in the same class relative to tho question of knowledge. Cases that follow MacPherson v. Buick Motor Co., supra, in that respect, involving various and widely different fabrications, are: Johnson v. Cadillac Motor Co. (C. C. A.) 261 F. 878, 8 A. L. R. 1023; Employers’ Liability Assur. Corp., Ltd., v. Columbus McKinnon Chain Co. (D.

C.) 13 F.(2d) 128 ; Goullon v. Ford Motor Co. (C. C. A.) 44 F.(2d) 310; Clark v. Standard Sanitary Mfg. Co., 149 A. 828, 8 N. J. Misc. 284; Smith v. Peerless Glass Co., 259 N. Y. 292, 181 N. E. 576; Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N. W. 855, 60 A. L. R. 357; Heckel v. Ford Motor Co., 101 N. J. Law, 385, 128 A. 242, 39 A. L. R. 989; Barabe v. Duhrkop Oven Co., 231 Mass. 466, 121 N. E. 415; Van Winkle v. American Steam-Boiler Co., 52 N. J. Law, 240,19 A. 472; Farley v. Edward E. Tower Co., 271 Mass. 230, 171 N. E. 639, 86 A. L. R. 941; Marsh Wood Products Co. v.

Babcock & Wilcox Co., 207 Wis. 209, 240 N. W. 392; Coakley v. Prentiss-Wabers Stove Co., 182 Wis. 94, 195 N. W. 388. Some of the cases cited wore prior to the MacPherson Case.

All of them go upon the principio that “the manufacturer of an appliance, that will become highly dangerous when put to the use for which it is designed and intended because of defects in its manufacture, owe to the public a duty, irrespective of any contractual relation, to use reasonable care in the manufacture of such appliances.” Obviously, a heating plant in a dwelling is an instrumentality imminently dangerous to life and property, if not made and operated with appropriate care; and there is proof in support of the verdict that appellant was guilty of negligence, as charged, in designing and making the smoke hood without means of attaching it to the dome so it would not be displaced by explosions, thus causing release of flame under and in proximity to the ceiling.

There is no proof of negligent operation. There is evidence that other manufacturers placed a smoke hood on top’ of their furnaces, but what they did was evidentiary only and not controlling on the subject of negligence. Chicago, Great Western Ry. Co. v. M’Donough (C. C. A.) 161 F. 657; Texas & Pac. R. Co. v. Behymer, 189 U. S. 468, 23 S. Ct. 622, 47 L. Ed. 905; American Coal Co. v. De Wese (C. C. A.) 30 F.(2d) 349; Parker v. Cushman (C. C. A.) 195 F. 715. Besides, it appears that the American Radiator Company securely fastened its smoke hood to the top of the dome for several years prior to this fire.

Other claimed errors are assigned and argued, but in the light of the whole record they seem to us to be without merit. Affirmed.