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September 13, 1955

A. MASCHMEIJER, Jr., Inc., Defendant

The opinion of the court was delivered by: CONGER

This action was tried without a jury upon waiver of the parties in open court.

Plaintiff seeks judgment against defendant in the sum of $ 3,504.44 *fn1" as a result of a certain occurrence which will be described hereafter.

 There appears to be no substantial dispute of fact.

 Plaintiff, an Indiana corporation, is, and was at the time of the carriage in suit, a common carrier by motor vehicle in interstate commerce.

 Defendant, a New York corporation, is a manufacturer of, among other things, a chemical known as methyl phenyl acetate (hereinafter abbreviated to 'm.p.a.') and maintains a plant in Newark, New Jersey.

 On May 2, 1949, one George Kline, a driver then employed by Eastern, accompanied by one Edward T. McKaig, a helper, traveled in one of plaintiff's tractor-trailer units to defendant's plant where defendant's employees loaded on the trailer 30 drums of m.p.a. for shipment to Eli Lilly and Company, Indianapolis.

 According to McKaig the drums were rolled up skids to the rear part of the trailer, whereupon he rolled them to the front, up-ended them, and placed them in horse-shoe fashion along the front and sides of the trailer. He inspected them as he performed this task and found no leaks. Thereafter he signed the bill of lading.

 Kline did not participate in the loading of the drums although he observed the operation. He saw no leaks. Thereafter, he drove the truck-trailer to plaintiff's terminal in Jersey City, where miscellaneous freight of different consignors was loaded on the trailer. This freight was stowed on the floor up the center of the trailer by plaintiff's helpers, Caudito and Doerner, who saw no leakage from the drums.

 Kline thereafter set out for Indianapolis. He passed through Harrisburg, Pa., having traveled to that point without incident, and continued along the Pennsylvania Turnpike to a truck stop known as Midway. There he slept, ate and showered, passing about 7 hours, and then resumed his journey. He stopped again at a place called Stanton on the Turnpike, where, immediately, and after having eaten, he detected moisture appearing on the underside of the trailer and a strange odor apparently emanating therefrom. Since the trailer had been sealed at Jersey City, he had no way of observing its interior to investigate the condition. He then called plaintiff's terminals at Pittsburgh and Indianapolis for permission to break the seal but could locate no one to authorize it. He thereupon broke the seal himself, and upon inspection, found the floor damp with a liquid which had saturated the miscellaneous freight toward the back of the trailer. He detected a strong odor. He examined the drums and found one leaking. He moved some of the merchandise toward the front of the trailer, placing some on the drums, and continued his trip, stopping at Columbiana, Ohio, and Lodi, Ohio, where he contacted the Indianapolis dispatcher. He eventually reached the Indianapolis terminal, where he parked the trailer. The witness testified that he had no accident on the trip and no collision.

 Thereafter, the trailer and its contents were inspected by Joseph Brown, head of plaintiff's claims department, and Frederick A. Atkinson, a chemist.

 Mr. Brown inspected it on May 5, and found the odor from the trailer so offensive that he declined to enter it. He did see that the trailer floor was covered with a liquid and that shipping containers were stained. He also noticed that the underside of the trailer was devoid of paint.

 Later that day, Brown saw the trailer again, along with Atkinson. He also inspected the tractor. Brown said the grease had been completely removed from the coupling wheel, and the paint had blistered off the saddle tanks. He removed part of the cargo and found some completely destroyed. He inspected two drums that had leaked their contents and found each had fractures, had been repainted and showed signs of rust. Two days later he obtained the drums from Eli Lilly and Company the put them in plaintiff's warehouse at Terre Haute, where they remained until 1951, when they were sent, crated, to Dr. B. F. Brown, a metallurgist, in Raleigh, N.C.

 Atkinson, who inspected the drums on May 5, 1949, in company with Joseph Brown, testified through answers to interrogatories that m.p.a.'s great solvent power removes paint from practically all painted surfaces; that it has a strong, offensive odor and is extremely persistent; that it would injure shellac, destroy the insulating layers on television switches, connectors, condensors, etc., deteriorate binders on generator carbon brushes, remove paint from and penetrate a trailer floor and 'bleed thru' any repainting, be absorbed by spices and destroy their flavor, among other things. He said that when he inspected the trailer, there was a pronounced odor in and about the trailer and the floor and the underparts were moist with m.p.a.

 It was Atkinson's opinion that the trailer would be unusable until all the wooden parts had been replaced and the metal parts thoroughly cleaned and painted.

 Dr. B. F. Brown, a metallurgist of undoubted quality, examined, at plaintiff's request, the two drums in Raleigh, N.C., in June, 1951. He stated that each drum was made from 18 gauge steel, had a 55 gallon capacity and that one was made in 1947 and the other in 1943. When he examined them the 1947 drum was rusty in the area of the bottom head and had a fracture in the bend of the chime circumferentially of the order of two inches. The chime he described as an extension of the side of the drum where it is crimped with the bottom or top head to form a seal and to act as a support in the case of the bottom head. The width of the fracture was not measurable in ordinary terms but might be described as a hairline fracture. He said the fracture in the 1943 drum was similar to that of the 1947 drum. He further observed loose red rust in the vicinity of the fracture of the 1947 drum but said that the 1943 drum was free of corrosion. He found that the center of the bottom head of the 1947 drum rested on the floor under load whereas this was not true of the 1943 drum. He said such a condition could result from one or a combination of the following: the basic properties of the steel, the contour of the bottom as determined by original design and reconditioning, severity of service since the last reconditioning, severity in time as well as in intensity.

 Dr. Brown related that he examined under microscope small specimens of metal taken from the drums around the area of the fractures. These specimens had been prepared by standard techniques to reveal grain structure. Dr. Brown's testimony was so significant beyond this point that I set forth portions of it.

 On direct examination:

 'Q. On observation of the microscopic specimens and the photographs taken of those specimens, what in your opinion was the cause of the fracture? A. The fractures were caused by fatigue.

 * * * * *

 'Q. In other words, Doctor, that lack of mechanical deformation indicates that the fracture or break occurred as a result of inherent failure of the metal itself caused by stress, is that what it shows? A. Coupled with the absence of the evidences of stress corrosion cracking, it indicates that again the failure is caused by fatigue.

 'Q. Fatigue means metal fatigue? A. Yes.

 * * * * *

 'Q. In your earlier testimony you mentioned reconditioning, what does that mean? A. Reconditioning is a practice for removing the dents which may have appeared in a drum, of cleaning the surface and of repainting it, generally. And in some instances of re-rolling the seam and the chime.

 'Q. Will you describe some of the methods by which drums are occasionally reconditioned? A. Well, I do not believe there are standard practices, but at least some of the practices which are followed are these: a chain is tumbled inside the drum to remove rust, the drum will possibly be steamed to remove former ladings, the drum will be subjected to air pressure or to peening in order to remove dents, and as I said before, the chime may be rolled in order to raise the bottom so that the weight is held on the chime, and the drums may be painted in whole or in part.

 * * * * *

 'Q. Would the tumbling of chains on the inside of a drum ever have the effect of adding stresses and strains to the metal? A. Probably not.

 'Q. What ordinarily is the weakest portion of a metal drum, Doctor? A. By the nature of the stress system and the nature of the chime, the bend of the chime is usually the weakest point.

 'Q. What would be the effect of rolling the bend of a chime on the metal itself? A. If the re-rolling were done in such a way that the contour at the bend becomes sharper, then it would tend to concentrate stresses there and accelerate failure by fatigue.

 'Q. Doctor, when you examined these drums, did you notice any paint on the drums? A. Yes. There were four paint systems, four layers of paint evident in drum number two, and two paint systems in drum number one, on the bottom head.

 'Q. That was the head which in each case had broken? A. The head that was fractured.

 * * * * *

 'Q. Doctor, what causes metal fatigue with particular reference to drums? A. I might say parenthetically that the term metal in the metallurgical world is superfluous. In the literature it is simply fatigue. Fatigue is caused by an accumulation of damage to the metal as a result of repeated applications of stress above some limit in the case of steel.

 'Q. The longer a drum is used the more likely it is to rupture or break? A. That is correct.

 * * * * *

 'Q. Would you say that the breaks and fractures you examined in drums one and two were caused by a particular strain at the time that they fell? A. Would you like to state stress instead of strain?

 'Q. Particular stress at the time they fell? A. No. In a fatigue fracture the fracture cannot be relayed to the stress at the time of fracture.

 'Q. Does that mean, Doctor, that these breaks were not caused by any particular application of unusual force at the time the drums broke? A. That is correct.

 'Q. Does that mean, Doctor, that these drums broke because they had been used so often and so hard, that they had been subjected to many previous stresses? A. That is correct.

 'Q. Does that mean, doctor, that these drums just wore out? A. In a sense, yes.

 'Q. Did the drums, did either of them show signs of any impact with any outside instrumentality at the point of the break? A. No.

 'Q. Doctor, I ask you to assume that two 55 gallon drums were loaded in a plant of New Jersey by rolling them, together with others, up a skid, and that the drums were rolled on to the floor of a motor trailer, and that they were loaded so that they were resting on the bottom portion or bottom head of the drums. That from a plant in New Jersey they were moved to a freight terminal within 10 or 15 miles, that there additional freight was loaded onto the same trailer, and that from that point the drums were carried by automotive trailer to another point approximately 1,000 miles away, that the drums were transported in an ordinary fashion -- --

 'Mr. Greenspan: I object to the use of the word ordinary.

 'Q. That the drums were transported without any untoward incident, and that in the course of the transportation they were discovered to have fractured. Now from your visual inspection, and the various microscopic tests and examinations to which you have subjected the drums, various coupons of the metal, metallurgical specimens, would you state what in your opinion was the cause of those fractures? A. Based upon such observations and tests and information, it is my opinion that the fractures were caused by an excessive number of applications of stress above the fatiguing limit on a material and a design, or on the material and the design.

 'Q. Is the effect of your answer to say that these drums just wore out from usage? A. That ...

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