UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: April 3, 1972.
BRICKMAN-JOY CORPORATION AND CONNECTICUT GALVANIZING CORP., PLAINTIFFS-APPELLEES,
NATIONAL ANNEALING BOX COMPANY, DEFENDANT-APPELLANT
Murrah,*fn* Kaufman and Oakes, Circuit Judges.
OAKES, Circuit Judge:
This diversity action under Connecticut law, involving the failure of a galvanizing kettle, was submitted to the jury on the basis of an implied warranty of merchantability, Conn.Gen.Stat. § 42a-2-314 (1958) (Uniform Commercial Code), and judgment was rendered for plaintiffs. Defendant brought this appeal from Judge Blumenfeld's denial of its alternative motion for judgment n.o.v. or a new trial under Fed.R.Civ.P. 50(b). We affirm.
Plaintiffs-appellees, Connecticut corporations, ordered a $7,000 galvanizing kettle*fn1 from defendant-appellant, a Pennsylvania corporation. This was to be manufactured by defendant-appellant in accordance with the inside dimensions determined by appellees but the specifications prepared by appellant and accepted by appellees. On delivery of the kettle at appellees' Glastonbury, Connecticut, plant, they placed it in their furnace setting, a recessed pit. On the kettle's maiden run, however, while packed with zinc and heated to approximately 820 degrees F., it cracked open in or near a weld between the bottom and side plates. Needless to say, the molten zinc within dribbled out.
The wounded kettle was then hosed with water -- in the trade, "frozen" -- to solidify the bleeding zinc and inhibit further leakage. Vermiculite was also spread on the top layer of zinc in the kettle to prevent the remaining zinc from losing too much heat. After deliberating several hours, appellees' managers concluded that to salvage the remaining zinc, the best course would be to reheat the kettle to melt the zinc so that it could be pumped out of the kettle. Upon reheating, however, the crack in the kettle apparently lengthened, the bottom of the kettle dropped out, and the molten zinc spilled all over the pit.*fn2 Appellees sustained over $80,000 in damages in retrieving the zinc and replacing the kettle.
The court below found, as appellees claimed, that there was an implied warranty of merchantability as a matter of law. The case was then submitted to the jury only on the question whether there was a breach of that implied warranty. Appellant contests the propriety of the court's instructions, claiming that the charge should have been based, if on any warranty, on the implied warranty of fitness for a particular purpose [Conn.Gen.Stat.Ann. § 42a-2-315 (1958)].
Appellant's specific argument is that the warranted product -- the kettle -- could have been used in galvanizing operations only in conjunction with numerous other components and design variables over which appellant had had no control. Therefore, the argument runs, the case fell outside the realm of simple merchantiability, which appellant interprets as being limited to products suitable for general use without modification or adaptation to particular circumstances.*fn3
Inasmuch as the elements necessary to support a warranty of merchantability were present in the kettle transaction,*fn4 and since within the component system, only the kettle precipitated the damage, appellant's position is untenable. Appellees purchased a galvanizing kettle from a kettle merchant and were entitled to presume the kettle was of merchantable quality. Fitness for a particular purpose need not be reached here, for as Judge Blumenfeld concluded, "In the instant case, the general purpose and the particular purpose of the item sold were one and the same -- galvanizing. That the kettle was manufactured to meet the requirements of plaintiffs' galvanizing operation rather than someone else's galvanizing operation does not make inapplicable the warranty of merchantability." Ruling on Motion for Judgment N.O.V. or for a New Trial at 2, Brickman-Joy Corp. v. National Annealing Box Co., Civil No. 12,965 (D.Conn., filed Feb. 26, 1971) (hereinafter cited as Judgment). See Crotty v. Shartenberg's-New Haven, Inc., 147 Conn. 460, 464, 162 A.2d 513, 515 (1960).
Appellant additionally seeks to convince us that the trial court erred in instructing the jury as to what would constitute misuse of the warranted product by the buyers, thus defeating the merchantability claim. At the trial, appellant's principal allegation was that the kettle failed because plaintiffs neglected to brace it in their furnace setting with side supports. That omission, appellant claims, was a misuse of the kettle which ought to relieve appellant of liability.
Judge Blumenfeld instructed the jury that the plaintiffs had the burden of proving that the kettle was not fit for normal use and that plaintiffs' use was not misuse. He further charged, with respect to the standard for determining misuse:
If the manner in which the plaintiff used the kettle was in accord with practices employed by an appreciable number of galvanizers in April of 1968, when this occurred, you may then find that the plaintiff is entitled to the benefit of the warranty of merchantability and is entitled to recover, even if not all galvanizers would have used the kettle as the plaintiff did.
Taking exception to the "appreciable number" standard, appellant urges that under Silverman v. Swift & Co., 141 Conn. 450, 107 A.2d 277 (1954), the Connecticut test for misuse is whether the plaintiffs followed "commonly used precautions" when using the kettle in their galvanizing operation. The undisputed proof that plaintiffs did not provide side supports, the theory obviously follows, would lead the jury to bar recovery if they were convinced that such supports were a commonly used precaution in the galvanizing industry.
The "appreciable number" standard was fashioned by Judge Blumenfeld, in the absence of more definitive Connecticut law, from Crotty v. Shartenberg's-New Haven, Inc., supra, a hair remover warranty case. There the court said that while the plaintiff could not recover if the injury were caused "by reason of his own improper use of the article warranted," id. at 467, 162 A.2d at 517, citing Silverman v. Swift & Co., supra, the warranty of merchantability would stand if plaintiff could show that the product "can affect injuriously an appreciable number of persons." 147 Conn. at 467, 162 A.2d at 516. See also Corneliuson v. Arthur Drug Stores, Inc., 153 Conn. 134, 214 A.2d 676 (1965). On this foundation Judge Blumenfeld wrote:
If the Crotty rationale for not relieving a manufacturer from liability to an appreciable number of buyers who react other than the ordinary person is valid, the same reasons apply with equal force for holding that he is not relieved of liability to one who uses the article in a way that an appreciable number of buyers would use it.
Judgment, supra at 5.
The Silverman case was interpreted by Judge Blumenfeld as not inconsistent with, but as supportive of, the "appreciable number" standard. In that case the warranty of merchantability was held applicable to a sale of food generally "only when the food is used in the usual, rather than in an unusual, manner," 141 Conn. at 457, 107 A.2d at 280-281, and in the case of raw pork particularly, only if the pork "has been cooked with the commonly used precautions prevailing among the general public." Id. at 458, 107 A.2d at 281. Since the Silverman court had emphasized that it could be judicially noticed that raw pork must be cooked thoroughly to prevent trichinosis, Judge Blumenfeld found that in raw pork cases there is an equation of use in the "usual" manner on the one hand and "the commonly used precautions prevailing among the general public" on the other. He concluded:
Where products, even food products, other than raw pork are involved, the [ Silverman ] case can only be read to stand for the proposition that a warranty will not cover an 'unusual' use of the product. The Crotty test of 'appreciable number' of users can then be used in the 'misuse' context to provide some guidance to the meaning of 'unusual. '
Judgment, supra at 6.
We do not and cannot find Judge Blumenfeld's synthesis incorrect. The instructions in this case necessarily had to impart to the jury that the plaintiffs could not recover if the damage were incurred through their own improper use of the article warranted. Crotty v. Shartenberg's-New Haven, Inc., 147 Conn. 460, 467, 162 A.2d 513, 517 (1960), citing Silverman v. Swift & Co., supra. The inquiry, therefore, had to be what were the ordinary ways in which galvanizing kettles were used in the galvanizing industry, for an ordinary or usual use would not be an improper one. Application of the "appreciable number" test satisfactorily would determine the ordinary practices in the industry. The question was whether plaintiffs had used the kettle ordinarily and properly, saving their claim, therefore, or had used it unusually and thus improperly, barring recovery through misuse.
Two things might be said about the "commonly used precautions" language of Silverman. First, the appreciable number test would reflect any such precautions, since the degree of commonness as stated in Silverman could be noticed judicially and would by definition be used by an appreciable number of purchasers of manufactured products. Second, and more importantly, a manufacturer who is or should be concerned that his product must be strengthened by external supports to be made operable for its intended purpose, has both the power and prerogative to disclaim liability should the product be used without such supports. It is not unfair to put the onus on the manufacturer when an appreciable number of buyers use his product in a manner he may consider dangerous.
We do not think in this diversity case, especially in the absence of any clear, closely parallel Connecticut precedent, that the district court's view of local law may be lightly disregarded. See Wasik v. Borg, 423 F.2d 44 (2d Cir. 1970); Deveny v. Rheem Manufacturing Co., 319 F.2d 124 (2d Cir. 1963). We consider Judge Blumenfeld's instruction as to misuse proper and fair, and we accordingly approve it.
Appellant's final contentions are that the court's instructions regarding the plaintiffs' duty to mitigate damages were erroneous, and that the court improperly summarized the evidence with respect to mitigation. Our reading of the record, however, reveals that the instructions clearly portrayed the law, see Morro v. Brockett, 109 Conn. 87, 145 A. 659 (1929), and that the court's recollection of the evidence was fair to both parties.