Lumbard, Chief Judge, Moore and Friendly, Circuit Judges. Friendly, Circuit Judge (dissenting as to Sexauer and concurring as to Diamond).
Plaintiff (appellant), Clayton H. Stief (Stief or plaintiff), a citizen of Pennsylvania, brought two actions in the District Court for the Southern District of New York to recover damages for personal injuries, one against defendant (appellee), J. A. Sexauer Manufacturing Co., Inc. (Sexauer), a New York corporation, and the other against appellee Diamond Alkali Company (Diamond), a Delaware corporation.
In substance, in the complaint against Sexauer, Stief alleged that, in the course of using a product, packaged and sold by Sexauer, known as "Mule Kick," and advertised as opening clogged drains, he was burned and permanently blinded by a spray containing Mule Kick which issued from a hole in a pipe which he was attempting to clear. Breach of warranty and negligence were charged. A second cause of action was based upon breach of express warranties of merchantability, safety, freedom from explosion, freedom from dangerous adulterants and of fitness for the particular purpose mentioned on the product as well as breach of implied warranties of safety.
In the complaint against Diamond, the manufacturer of the product, Stief also alleged negligence and breach of warranty.
The cases were consolidated and tried to a jury. During the trial, the breach of warranty issue was abandoned and the trial proceeded on the theory of negligence. At the close of plaintiff's case, defendants moved for direction of a verdict. The court granted the motion, dismissing the complaint as to Diamond, but reserved decision as to Sexauer. The motion for a direction was renewed at the end of the entire case, decision was again reserved and the case was submitted to the jury on the morning of November 5, 1965. That evening the jury reported hopeless disagreement and was discharged.
Some five weeks later, the court, with the benefit of the full transcript of the record, additional memoranda, further oral argument and consideration of cited cases, granted the motion and dismissed the complaint against Sexauer. In a memorandum opinion, the court said: "Suffice it to state that, viewing the facts in a light most favorable to the plaintiff, this court is unable to formulate any reasonable view of them or of the law applicable to this case under which the defendant Sexauer might be held liable to this plaintiff, an experienced plumber who had used the product of the defendant on prior occasions, for this most unusual accident." What "the facts," so considered by the court in reaching this judgment, might have been are not disclosed because the court said: "No useful purpose would be served by a restatement of the facts here."
At the outset, this court must state its views as to the applicable principles of law against which the facts disclosed by the record must be reviewed.
First, the question for the trial court was: were there any facts, or facts from which inferences might be drawn, which should have been sent to the jury for its determination as to whether Sexauer had breached a duty to plaintiff. It was not for the trial court so to decide unless there was a failure by plaintiff to present any facts which met legal standards.
Second, plaintiff's previous experience as a plumber and his knowledge and use of Mule Kick was a relevant fact but certainly not decisive on the question of Sexauer's liability.
Third, the fact that the accident was "most unusual" is not to be considered in deciding whether the directed verdict was justified.
Quite apart from the reasons mentioned by the trial court, the function of this court on appellate review is to examine the entire record to determine whether there were any jury questions.
On appeal within the field of negligence, the issues have been narrowed further. Stief states "the plaintiff's case against Sexauer is grounded in the legally deficient characteristics of its 'Mule Kick' label" (Br. p. 6), and that "the essence of plaintiff's case of Sexauer's liability is directed toward that label's inadequacies, untruths, misstatements and misinformation" (Br. p. 2).
Stief's case, as stated in his appellate brief, "against Diamond is based on Diamond's role in checking Sexauer's label 'Mule Kick' from time to time and yet making no suggestion regarding the inadequate warning on that label when Diamond knew of the dangerous properties of the material which Sexauer was selling to an unwarned and unsuspecting public" (Br. p. 6).
Stief contends that "each of the following characteristics of the 'Mule Kick' label constitutes a legal deficiency which was proven," claiming that "each alone would raise a prima facie case of negligence against Sexauer." These claims are set forth verbatim (Br. pp. 6-7):
"a. The label describes 'Mule Kick' as safe. In truth it is extremely dangerous.
"b. The label failed to use the words 'Lye' or 'Caustic Soda.' This absence failed to warn the public of the dangerous material.
"c. The label stated that 'Mule Kick': 'Contains no disguised perfumes, no DANGEROUS "bubbling" adulterants, causing injurious spray, explosive gases, harmful fumes.' In this respect it was misleading, for this product in combination with zinc did cause explosive gases which exploded, and its injurious spray blinded the plaintiff.
"d. The label failed to warn that explosive and propulsive gases might be created by reason of contact with pipe materials or foreign materials in drain stoppages. This was a breach of defendant Sexauer's obligation to warn of the hazardous propensities of its product. That breach directly resulted in the accident in suit.
"e. The label failed to warn users of 'Mule Kick' to employ goggles while in the presence of 'Mule Kick.' This was in violation of defendant Sexauer's duty to give users reasonable warning of reasonable precautions to be followed in using its product."
Stief takes the position that the statement of the Sexauer label, namely, "Contains no disguised perfumes, no DANGEROUS 'bubbling' adulterants, causing injurious spray, explosive gases, harmful fumes" is "the gist of the prima facie negligence against Sexauer" (Br. p. 20). The concession is made arguendo that "as the label stands it is not inaccurate," but it is claimed that "however accurate it may be, it is grossly, dangerously incomplete." Stief further limits Sexauer's alleged negligence to making a "grossly misleading" statement on the can "when it knew that the product under reasonably expected conditions would cause an 'injurious spray' and would cause a highly dangerous 'explosive gas.'" Stief asserts that he "proved that defendant knew or should have known of 'Mule Kick's' reasonably foreseeable hazardous propensities" (Br. p. 21).
The Plaintiff's Case Against Sexauer
The question of the correctness of the trial court's dismissal of the complaint must be tested by the proof adduced during plaintiff's case unless there were evidence developed by defendant Sexauer which might have supported plaintiff. For all practical purposes there were four witnesses, Stief, his fellow employee, Nixdorf, his expert witness, Dr. Willard, and one Springhorn, Assistant to Sexauer's President.
Stief, a plumber, an employee of the plumbing firm of Everts & Overdeer, Inc., in Lancaster, Pa., on January 25, 1961, was directed to proceed to 5 Locust Street, about a half-block from the office, to attempt to clear a clogged drain in a second-floor apartment occupied by tenants named Taylor. Nixdorf accompanied him. They discovered that the stoppage was in the kitchen sink. Their efforts with a plunger were unsuccessful. After draining the sink trap, they then poured down the drain one to two quarts of hot water which had been mixed with a can of Mule Kick, a caustic soda substance which they carried on their truck and had used for drain cleaning purposes on previous occasions. They prepared the solution in a galvanized pail and followed the instructions on the label which reads in its entirety as follows:
Clears Clogged Drains -- Peps up lazy drains.
Advertised in The Saturday Evening Post and a household favorite ...