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October 26, 1950

CELANESE CORP. of AMERICA (PRECISION CASTINGS CO., Inc., third-party defendant). HALE v. CELANESE CORP. OF AMERICA (PRECISION CASTINGS CO., Inc., third-party defendant)

The opinion of the court was delivered by: BRENNAN

Motions are made herein to vacate an order permitting the service of third-party complaints, and to dismiss such complaints because of legal insufficiency.

The pleadings in these actions are substantially identical. The issues are similar as are the motions which are separately made in each case, and will be disposed of together. For convenience the plaintiffs will be hereinafter referred to as 'plaintiff', the defendant and third-party plaintiff as 'Celanese', and the third-party defendant as 'Precision'.

 On October 18, 1949, two employees of Precision while in the course of their employment received injuries which resulted in their deaths. The accident was the result of the employees coming in contact with burning hydraulic fluid used by Precision in its business of die-casting at Fayetteville, New York.

 These actions were subsequently started against Celanese to recover money judgments on account of the deaths of said employees, and on account of their conscious pain and suffering. The burden of the complaints is that Celanese is the manufacturer and distributor of a hydraulic fluid known as 'Lindol' or 'Lindol HFX', which was intended for use in producing hydraulic-pressure in die-casting machines; that Celanese sold and delivered such product to Precision with the knowledge that same was intended to be used in its business as above described; that the product was of an inflammable nature; inherently dangerous; and that said manufacturer failed to warn the users of the character of its product and neglected to use the degree of care required in its manufacture and distribution.

 Under the provisions of Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A., Celanese applied for an ex parte order permitting the service of a third-party complaint upon Precision. The order was granted, and these motions apply to the pleadings subsequently served.

 An examination of the third-party complaints show that Celanese seeks to recover over against Precision on two separate causes of action. Paragraph V of the complaints contains the basis of its first cause of action, and is quoted below: 'V. At the time of each such agreement to sell and sale of said hydraulic fluids, and as a part of the consideration for each such agreement to sell and sale, the third-party defendant expressly promised and agreed to assume all risk and liability whatsoever resulting from the use of such hydraulic fluids, whether used singly or in combination with other substances.'

 Its second cause of action is based upon allegations which in substance allege that Precision at all times had knowledge of the inflammable characteristics of the product purchased from Celanese; that in fact, it had conducted its own tests to determine such characteristics; that said product was found to be satisfactory for Precision's purposes. It is further alleged that any injuries not caused by the negligence of the decedents was caused by the active, primary and original negligence of Precision, in that it failed to operate, maintain or keep in repair its die-casting machinery, and the hydraulic piping systems thereof; and that it failed to provide proper safeguards to prevent hydraulic fluid from coming in contact with its furnaces, and that it failed to safeguard its employees from dangers inherent in the die-casting process.

 Precision makes these motions in which the plaintiff joins. The plaintiff asserts no claim against Precision, and it is evident that same would be barred by the Workmen's Compensation Law of the State of New York, McK. Consol. Laws, c. 67.

 A principal purpose of Rule 14 is to dispose of all related matters in one litigation and to avoid unnecessary trials and duplication of evidence. Its provisions are addressed to the discretion of the Court to be exercised in the light of its purpose. Upon these motions the allegations of the pleadings must be taken as true, and the substantive law of the State of New York must be followed.

 The case of Brown v. Cranston, 2 Cir., 132 F.2d,631, 148 A.L.R. 1178, has decided that a right of a defendant to recover over is in effect a substantive right, and the rule may not be construed as to afford a recovery not available in the New York State courts. Recourse must then be had to state law to determine the sufficiency of the third-party complaints. See also Kittleson v. American Dist. Telegraph Co., D.C., 81 F.Supp. 25.

 The first cause of action alleged in the third-party complaints is based upon contract. Since plaintiff's right to recover against Celanese is based upon negligence, then Celanese may only recover over against Precision if the complaints show a contract which indemnified Celanese against its own negligence.

 The state court rule applicable here is that such a contract is to be strictly construed against the indemnitee. This rule is expressed by the requirement that the intention to indemnify must be ' * * * expressed in unequivocal terms.' Thompson-Starrett v. Otis Elevator Co., 271 N.Y. 36, 2 N.E.2d 35, 37. The U.S. Circuit Court of Appeals for the Second Circuit has recognized such requirement in Mostyn v. Delaware L. & W.R. Co., 160 F.2d 15, in which the Court says that such a contract to indemnify effectively against a fault in which the indemnitee shares, ' * * * must express, that purpose beyond any peradventure of a doubt.' 160 F.2d at page 19. See also cases cited therein. With this rule in mind an appraisal of the allegation under consideration here plainly shows that same is deficient, assuming that both Precision and Celanese may be considered as joint tort feasors as that term is ordinarily used and understood. Unlike the agreements in both cases cited above, the contract contains no certain language of indemnification.

 As to this phase of the motions the decision might end here, except that an examination of New York State authorities show that the rule as above enunciated is not applied with the same rigidity when it is shown that the negligence of the indemnitee may be termed passive and that of the indemnitor as active. Dudar v. Milef Realty Corp., 258 N.Y. 415, 180 N.E. 102; Schwartz v. Merola Bros. Const. Corp., 290 N.Y. 145, 48 N.E.2d 299; Kingsland v. Erie Co. Agricultural Society, 298 N.Y. 409 at page 433, 84 N.E.2d 38, 10 A.L.R.2d 1.

 No satisfactory definition of 'active' and 'passive' negligence is found. In Mostyn v. Delaware L. & W.R. Co., supra, there is an intimation that passive negligence may mean nothing more than imputed negligence but the state court decisions indicate that the term is broader in its scope. Until the terms are authoritatively defined this Court will assume that passive negligence exists under circumstances where a legal ...

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