Before MEDINA, WATERMAN and MOORE, Circuit Judges.
LEONARD P. MOORE, Circuit Judge.
Kewanee-Ross Corporation, defendant-appellant and third-party plaintiff-appellee petitions for a rehearing and for a consideration of the questions involved by the court en banc . Kewanee urges (1) an affirmance of the original judgment or a reversal and remand for a new trial, or, in the alternative (2) direction of a new trial between Kewanee and the thirdparty defendant-appellant, Burnham Corporation.
As grounds for its petition Kewanee asserts that this court misread: (1) the complaint; (2) the issues tendered by the pleadings; (3) the history and role of the pleadings after trial; (4) the issues actually litigated; and (5) the trial court's charge. In addition this court is said to have: (a) set aside a jury's verdict of passive negligence; (b) committed fundamental error as to the applicable law of the State of New York; (c) invaded the province of the jury; and (d) failed to follow the procedural requirements of Rule 50, 28 U.S.C.A.
Matching these alleged errors by the court are one or two errors or misconceptions even more fundamental on Kewanee's part which underlie its disagreement with the decision. These should be stated at the outset so that legal analysis can proceed from hypotheses supported by the record. The questions involved are important and Kewanee has advanced its position most ably and with vigor. As in almost every case there are aspects that cause little doubt; others as to which there is much greater uncertainty.
First, plaintiff sued Kewanee alone for negligence claiming that the injury resulting in the death of plaintiff's intestate "was caused by the negligence of the defendant, its agents and/or employees, * * * in that they failed and neglected to use proper and adequate materials and methods in the welding work upon the metal head of said 'boiler,' * * *; in that the said welding was done in a careless and negligent manner; in that defendant, its officers, agents and/or employees failed to properly and adequately inspect the said work upon the completion thereof; in that defendant, * * * permitted to be delivered to the Burnham Boiler Corporation, for tests under great pressure, the said defectively welded 'boiler'; in that defendant, * * * failed and neglected to warn the Burnham Boiler Corporation, * * * of the defective condition of said welding and of the fact that the said welding would not withstand the pressures to be demanded of it, and the defendant was otherwise negligent."
The action was not, as Kewanee now argues, one in which "plaintiff Guarnieri sued Kewanee-Ross Corporation as a third-party wrongdoer." To recover plaintiff was required to prove negligence against Kewanee and no other. This situation did not change when Kewanee filed its third-party complaint against Burnham. Plaintiff was still under a duty of proving negligence by Kewanee. Burnham by reason of the third-party complaint did not become a co-defendant or a joint tortfeasor. Burnham's liability, if any, was entirely dependent on principles of indemnity by agreement or imposed by law.
Second, the trial court's charge clearly informed the jury of the necessity of finding negligence on Kewanee's part before any verdict against Kewanee could be returned. In its charge the court stated the issue between plaintiff and Kewanee as "What are the claims here that these parties make? Plaintiff says that her husband was injured and killed and that that was the result of the negligence of the defendant Kewanee, and that the negligence is demonstrated by the faulty weld which attached this boss to the head of this cylinder" (486a). The court continued "For the time being, I am just going to talk about the plaintiff and Kewanee, because that is the primary litigation before us. We will come to Kewanee's claim against Burnham later (487a). * * * In summary, the plaintiff must prove negligence by Kewanee; that that negligence was the cause of the accident, and of course the injury.* * * The question is, did Kewanee's negligence cause the accident, if it was negligence in the first place?" (487a). The necessity for finding affirmative misconduct, i. e., active negligence, by Kewanee was the keynote of the court's charge. Such excerpts as the following are illustrative: "In the light of the facts in this case, where the thing in issue is the weld of the boss to the head of this cylinder, this seems to break down into whether the defendant Kewanee used due care in preparing a proper formula or procedure for this welding, whether it used proper equipment and material, in so far as it supplied any of the material, and whether it made proper provision for testing the weld" (487a, 488a).
The court even permitted the jury to exonerate Kewanee if it found that Kewanee had transferred its duty to inspect to Burnham. The court in part instructed the jury "In other words, had Burnham agreed to perform the test which Kewanee, as a matter of ordinary care, would otherwise have to perform itself? * * * Did it constitute an exercise of reasonable care, due care, under the circumstances? * * * If you conclude that Kewanee was not negligent in the respects in which I have indicated, then you need go no further" (488a). Implicit in the jury's verdict in favor of the plaintiff and against Kewanee was that Kewanee had not transferred its own duty to inspect to Burnham. Kewanee took no exceptions to the charge. It, therefore, was not a reviewable issue on the appeal. See Rule 51, F.R.Civ.P.; Kane v. American Tankers Corp., 2 Cir., 1955, 219 F.2d 637; United States v. Bruswitz, 2 Cir., 1955, 219 F.2d 59, certiorari denied 1955, 349 U.S. 913, 75 S. Ct. 600, 99 L. Ed. 1247.
Third, under the court's charge specifically outlining the essential requirements for finding negligence on the part of Kewanee the jury brought in a verdict in favor of plaintiff against Kewanee, the only defendant plaintiff had sued. There could have been no verdict for plaintiff against Kewanee for passive negligence under the court's charge. Kewanee's present assertions that "the express jury finding of passive negligence was the only foundation of plaintiff's verdict against Kewanee" (Pet. p. 3) and "the Court [this court] nevertheless unanimously affirmed the verdict of 'passive' negligence in favor of plaintiff Guarnieri against Kewanee" (Statement in support of petition for rehearing, p. 3) are misconceptions of the basis of the verdict. The trial court advised as to the law that a person who manufactures a dangerous device is liable to persons who are in the vicinity at the time it is being used. Even this liability was qualified by the necessity that injury be foreseeable. Finally there must be proximate cause. Here again the jury had to resolve this question under directions that "if you conclude that it was Burnham's superseding acts which were the proximate cause of this injury, and that it wasn't the normal consequence of Kewanee's negligence, if you find it, why, then, again you would return a defendant's verdict" (491a, 492a).
Nowhere in the trial court's charge as to the issues to be resolved between plaintiff and Kewanee is there any reference to the active-passive theory as applying between them.Only when the court had disposed of the issues between plaintiff and Kewanee did it turn to the claimover, saying "On the other hand, if you conclude that there was negligence and it did cause the injury, negligence by Kewanee, and it did cause the injury, why, you bring in at that point a verdict for the plaintiff, and the plaintiff's part of the case is completed, and the controversy between the defendant Kewanee and the plaintiff is completed, and we then get to the next question, whether if Kewanee is liable to the plaintiff, Burnham is liable over to Kewanee?" (492a).
As to the so-called second stage the court was in error both in its charge and in the law of New York as to indemnification. The question was posed as "Did Burnham, by its contractual arrangements with Kewanee, undertake the obligation to indemnify it for the injuries caused during this test? In that regard, you will then come to the question of whether Burnham was negligent. In other words, did Burnham conduct this test with a lack of due care, and was it Burnham's lack of due care which caused the accident, which caused the injury?" (492a, 493a).The court then proceeded to treat Kewanee and Burnham as "jointtortfeasors" and to apply principles of active and passive negligence to the claim between them disregarding completely the theory underlying the application of the principle.The court's own hypothetical illustration of the landlord-contractor type of case points up the error.
Kewanee calls attention to six recently decided New York cases in the trial courts and the Appellate Division in 1957 and 1958, a 1957 district court case, Stahlberg v. Hannifin Corporation, D.C.N.D.N.Y.1957, 157 F.Supp. 290, and a most recent case on the subject of active and passive negligence in the New York Court of Appeals, Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 186 N.Y.S.2d 15, 158 N.E.2d 691 (April 9, 1959), all of which have been carefully considered.
The opinion of Chief Judge Conway in the Putvin case reaffirms the view of the New York law stated in the original opinion herein, 2 Cir., 263 F.2d 413. There in a most similar situation the Court of Appeals reiterated the rule that the indemnity action absent a contract to indemnify arises if the defendant's liability is "predicated on passive negligence imposed by law and that of the third party is based ...