The plaintiffs-appellants are a husband and wife who with their baby, and their other children, a boy five, and a girl three years old, were living in a four-room apartment in Muskegon, Mich., when a fire broke out in the bathroom on the morning of January 12, 1949. A baby bathinette which was then in the bathroom was ignited and its supports, made of a magnesium alloy known as MF, burned fiercely and were nearly consumed before the fire could be extinguished. The appellants and their children were in the apartment at the time and the danger to them, as well as to the apartment and its furnishings, was much increased by the burning magnesium alloy. They succeeded in getting the children safely out of the apartment but they were both injured in so doing.

The bathinette had been purchased by the appellant, Jerome Hentschel, from the appellee, Sears, Roebuck and Company about a year before the fire occurred and had been used in the apartment without mishap for the purpose for which that appellee had sold it; i. e., for bathing the baby. It had a waterproof plastic top to hold the water used for bathing and that top was supported by four legs crossed in X-shape made of magnesium alloy with wooden extensions. The magnesium alloy was composed of 96.83% magnesium; 1.39% aluminum; .96% manganese; and .82% zinc and silicon. The alloy was .049 of an inch thick and was extruded to make hollow pieces one inch square which were cut into lengths suitable to support the plastic top at the desired convenient height with the upper ends fastened to the top

The bathinette had been manufactured by the Baby Bathinette Corporation and sold to Sears, Roebuck and Company for resale. The hollow, square pieces of magnesium alloy from which the legs had been made had been purchased by the Baby Bathinette Corporation from the White Metal Rolling & Stamping Corp., which had manufactured and sold them for such use.

The appellants brought this suit, there being diversity jurisdiction, against the Baby Bathinette Corporation, Sears, Roebuck and Company, and Dow Chemical Corporation to recover damages for the personal injuries they had sustained. The complaint was dismissed as to the Dow Chemical Corporation for lack of jurisdiction and no issue survives as to that. The White Metal & Rolling Corp. was impleaded by the Baby Bathinette Corporation as a third party defendant. Negligence in constructing the bathinette of improper material was charged in the complaint as the cause of the fire and the resulting injuries to the plaintiffs, as well as a breach of warranty to appellant Jerome Hentschel by the seller of it to him.

After a trial by jury, a verdict was returned for the defendants and this appeal is from the judgment on that verdict. The appellants rely for reversal upon asserted error in the charge and as to rulings during the trial admitting and excluding evidence.

The jury would have been justified in finding from the evidence substantially as follows:

What caused the fire to start in the bathroom was not proved. It was not, however, caused by the spontaneous combustion of any material of which the bathinette was constructed and the parts of that which were made of magnesium alloy began to burn only after one or more of them had been subjected to heat from some other source at a temperature of at least 1050-1100°F. When the magnesium alloy did get hot enough to burn the fire increased in intensity and was extremely difficult to extinguish with water since the use of water not in sufficient quantity to overwhelm such a fire will cause the release of inflammable hydrogen. This fire burned intensely and bursts of bluish flame shot out into the air to such an extent that Mrs. Hentschel received part of her burns from such bursts of flame when she was in her bedroom which was separated from the bathroom by a hallway.

The judge denied a motion by the defendants to dismiss the complaint when the evidence was closed and, without requests to charge, submitted the issues to the jury in a charge to which no exceptions were taken. That portion of the charge which the appellants now insist was erroneous was to the effect that there could be no recovery by either plaintiff on an implied warranty, or on the claim based on negligence, unless it was found that "this baby bathinette was the cause of the occurrence of the fire originally." It was made plain to the jury that if the fire was otherwise started and the bathinette was ignited because "it became subjected to flames from a previously started fire" there should be a verdict for the defendants.

Although there was no exception to the charge pursuant to Rule 51 F.R.C.P., 28 U.S.C.A., that does not necessarily preclude review on this appeal as we think there was no need to give the judge any opportunity to correct any inadvertent error. Sweeney v. United Features Syndicate, 2 Cir., 129 F.2d 904. He knew that one theory of recovery on which the plaintiffs relied was the asserted inherently dangerous character of the bathinette because of the intensity with which the magnesium alloy, of which it was in part constructed, would burn if it caught fire for any reason and evidently charged as he did with full appreciation of that.

In respect to the claim resting on the alleged negligence of the manufacturer, the general rule is that when the manufacturer of an article sells it ready for use and when used in the way the manufacturer intended to have it used it is an inherently dangerous instrumentality, the danger being unknown to the purchaser and not being patent upon reasonable inspection or disclosed to him, the manufacturer is liable to one who is personally injured while using it in the usual and intended manner. Coleman Co. v. Gray, 10 Cir., 192 F.2d 265; Reed & Barton Corporation v. Maas, 1 Cir., 73 F.2d 359; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696; Noone v. Perlberg, Inc., 268 A.D. 140, 49 N.Y.S.2d 460; Crist v. Art Metal Works, 230 A.D. 114, 243 N.Y.S. 496, affirmed 255 N.Y. 624, 175 N.E. 341; Restatement, Torts, Sec. 388.

There was no evidence to show that this bathinette had any hidden defect which would make it unsafe for use in bathing a baby in the usual way or that in ordinary use it would come in contact with heat of from 1050-1100°F., or more, to cause it to catch fire. There was nothing about it which would create a fire and unless subjected to such a high temperature the magnesium alloy would not burn at all.

The cases cited above, upon which the appellants rely, are clearly distinguishable. In Coleman Co. v. Gray, Reed & Barton Corporation v. Maas, and MacPherson v. Buick Motor Co., the respective plaintiffs were injured when defective products were unable to stand up under normal and expected use. In Noone v. Perlberg, Inc., and Crist v. Art Metal Works the products were not defective in construction but were inherently dangerous when used in the normal way. Here the bathinette was in no way dangerous in normal use. It was only in situations of abnormality that it became dangerous; that is where it was exposed to extreme heat, and it would not reasonably be expected that a bathinette constructed in part of wood and plastic would be used where it would come into contact with heat of some 1100°F.

It is quite true that in abnormal situations, which would subject the alloy to heat in excess of its ignition point, the bathinette would become dangerous. But the danger would be a relative matter. The magnesium would be more dangerous in a fire than wood or some other substances used in making bathinettes because of its higher burning temperature. But where an article is not inherently dangerous in its normal or intended use neither its manufacturer nor vendor is liable for a result which is brought about by its subjection to unusual and extraordinary conditions. Beickert v. G. M. Laboratories, 242 N.Y. 168, 151 N.E. 195.

The same conditions apply to the claim based on breach of warranty. There was, of course, an implied warranty that the bathinette was reasonably fit to be kept in a home for use in bathing a baby and was not a fire hazard in itself. But there was no warranty that it was non-combustible.

The questions relating to the admission and exclusion of evidence are not relevant to the decisive issue raised as to inherent danger as a result of the material used in constructing the magnesium leg frames and we find no prejudicial error in respect to them.

Affirmed.

FRANK, Circuit Judge (dissenting).

The question here is this: Ought the judge have allowed the jury to determine whether or not defendants should reasonably have foreseen that the thin sheets of magnesium, covering the legs of the bathinette, might be ignited, should a fire break out in the dwelling of a purchaser of the bathinette? My colleagues concede that such a fire might well lead such magnesium sheets to ignite and explode, and that the jury could rationally have found that just that did occur here, with serious damage to plaintiffs which would not have resulted from an ordinary fire, absent the magnesium sheets. But my colleagues hold, in effect, that here the judge correctly directed a verdict for the defendants with respect to this issue, because the occurrence of a household fire is so "abnormal" as not to be reasonably foreseeable by defendants.

The accident happened in Michigan, but the case was tried in New York. As, in such a case, the New York courts apply the Michigan rule,1 so must we, since here federal jurisdiction rested on diversity of citizenship. The courts in both those states hold, in effect, that in negligence cases, "cause" consists of two components: Defendant's conduct must (1) in fact have caused (i. e., contributed to) plaintiff's injury, and also (2) be of the kind to which — as a matter of policy — the courts attach liability. Here (1) is indisputable (as my colleagues' opinion shows). (1), however, is a necessary but not a sufficient basis of liability. To meet (2), there must be evidence from which a jury may rationally find that the plaintiffs' injuries were not an improbable or unlikely result of defendants' conduct, but "`one of those consequences'" — to quote Judge Learned Hand — "`not entirely outside the range of expectation or probability, as ordinary men view it'."2 "The test is not of the balance of probabilities, but of the existence of some probability of sufficient moment to induce action to avoid it on the part of a reasonable mind."3

While the problem is often — perhaps usually — analyzed in terms of cause, an alternative and perhaps preferable analysis would be phrased in terms of duty. The ultimate inquiry would remain the same, although it would be phrased somewhat differently: Was the occurrence here foreseeable enough that it should be regarded as a risk which would make defendant's conduct negligent? If it was, then defendant owed a duty of reasonable care to protect against this hazard, and this duty he owed to those likely to be hurt, if the occurrence took place — and this undoubtedly included plaintiffs here. In this view, the only question of "cause" would be that of cause in fact. The happening of the fire would be regarded not as bearing on the issue of cause, but on the issue of negligence. This analysis would still call for considering whether the event was likely enough "to induce action to avoid it on the part of a reasonable mind."4

The breaking out of a fire in a household is surely not improbable, unlikely, or unforeseeable. Millions of Americans so recognize, since fire insurance represents the commonest form of insurance; virtually all persons insure their goods against that sort of hazard; and well they might, since there are about a million fires each year in this country.5 I fail to understand how this court can describe as "abnormal," unforeseeable, or unlikely, a happening which the numerous holders of fire policies plainly consider foreseeable.

When, after a defendant has acted, an "unexpectable" event "intervenes"6 and contributes to plaintiff's harm, defendant's act is held non-culpable (being then sometimes labeled as not a "proximate cause").7 But the courts everywhere PAGE CONTAINED FOOTNOTES now hold that a defendant is not insulated from liability by the mere fact that there intervened even a tortious or criminal act of a third person or a "force of nature,"8 provided only the intervening factor was not within the category of the markedly unusual.

Typically, the highest Michigan court, in Brackins v. Olympia, Inc., 1946, 316 Mich. 275, 25 N.W.2d 197, 200, 168 A.L. R. 890, quoted with approval § 439 of the Restatement of Torts to that effect, and also the statement in 38 American Jurisprudence 716 that "`one is liable to respond in damages for an injury which was the natural and probable result of the concurrence of his negligence with the negligence of another, or with an act of God or pure accident, or with an inanimate cause, notwithstanding his lack of responsibility for the other cause'." See also Restatement of Torts § 302 and comment g. It suffices, then, that the defendant creates "a situation harmless in itself but which will become actually and unreasonably dangerous as a result" of a "foreseeable intervening" event.9 In line with this judicial attitude towards actionable negligence, the courts have often held that intervening "natural forces," such as lightning, wind, floods or drought, may be taken into account by a jury in ascertaining the foreseeable consequences of a negligent act.10

See, e. g., Johnson v. Kosmos Portland Cement Co., 6 Cir., 64 F.2d 193, 196. There plaintiff's decedent was engaged in making alterations on defendant's barge; defendant had previously used the barge for transporting oil but had failed to clean out the hold to prevent the generation of gases; the barge was struck by lightning, and an explosion of the gases resulted, as a consequence of which decedent was killed. The court held defendant liable, saying that lightning is "no extraordinary manifestation of natural force. Lightning strikes, and injury results. This is within our ordinary experience and observation. We take many precautions to avoid its injurious effect, insure and are insured against it. Nor is reasonable expectation of injurious consequences to be determined by the fact that no similar injurious result has been known to follow a like wrongful act under identical attending circumstances. If this were so, peculiar circumstances could be discovered in almost every accident, and relied upon to defeat liability. * * * It needs no illustration to demonstrate that danger may be present although injury has not yet occurred. Finally, to give validity to such contention would lead to the anomalous result noted in Texas & P. R. Co. v. Carlin, 5 Cir., 111 F. 777, 781, `That for the first, and perhaps the second, injury occurring in such manner there could be no recovery; but for the third, or when the circumstances ceased to be peculiar or became familiar, the defendant would be liable.' We think, however, that the doctrine of foreseeable results calls for no such narrow test to be applied to anticipation of injury as the one above discussed. We think the true rule to be that when the thing done produces immediate danger of injury, and is a substantial factor in bringing it about, it is not necessary that the author of it should have had in mind the particular means by which the potential force he has created might be vitalized into injury." See Restatement of Torts, § 435: "If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable."11 See also Pease v. Sinclair Refining Co., 2 Cir., 104 F.2d 183, 185-186; Hogan v. Comac Sales, Inc., 245 A.D. 216, 219, 281 N.Y.S. 207, affirmed 271 N.Y. 562, 2 N.E.2d 695.

If, as a matter of policy, lightning is a foreseeable "intervening cause,"12 obviously a household fire cannot be less so. It does not constitute so unusual an intervention that "the court's sense of justice will be shocked at the thought of asking the defendant to respond for the injury"13 and that it will therefore, in such a case, direct a verdict for him.

My colleagues say there was no evidence that "in ordinary use" — "in the way defendants intended to have it used" — the bathinette would come in contact with enough heat "to cause it to catch fire." But a bathinette's "ordinary" use is in a dwelling like plaintiff's. Such a use is not exceptional, unusual. Patently, defendants intended that use. A jury could reasonably conclude that defendants should have anticipated, as not at all unlikely, the breaking out of a fire in such a dwelling while the bathinette was in "ordinary use," and that defendants knew (or should have known) that the presence of the bathinette could easily transform an ordinary house or apartment into a fire-trap. For, as my colleagues admit, "the magnesium would be more dangerous in a fire than would wood or some other substances used in making bathinettes, because of its higher burning temperature" and "the intensity with which" it "would burn if it caught fire for any reason."

On such facts, the defendants would owe a duty to warn a purchaser of this dangerous attribute of the magnesium. Restatement of Torts, § 388(c) and Comment g.14 Defendants gave no such warning. Instead, the bathinette was described in the Sears Roebuck catalogue as "practically indestructible."15 Absent an appropriate warning, the sale of the bathinette was "an act fraught with foreseeable peril"16 to the purchaser and to anyone else (like the wife here) who might be expected to be present in the purchaser's dwelling when a fire occurred.

To comprehend the nature of defendants' negligence, one has but to ask whether defendant could have sold their bathinettes, if there had been affixed an easily-readable notice saying, "If a fire happens in your home, this bathinette will probably increase the dangers greatly, because the magnesium may ignite, causing unusual spurts of flame which will be peculiarly difficult to extinguish."

My colleagues say that liability turns on whether or not the bathinette was "inherently dangerous." But, as a leading commentator remarks, "It is difficult to understand why a number of courts still cling to the distinction between `inherently dangerous articles' and other articles in discussing the liability of both manufacturers and vendors. Professor Bohlen and Judge Cardozo [in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696] long ago showed the fallacy of it. * * *"17 So, too, typically, does one of the cases my colleagues cite.18

Today, in this legal province of negligence, considerations of social welfare, or "social value,"19 do (and should) affect the decisions as to a defendant's liability or the duty he owes to a plaintiff. Can anyone really believe — or think the Michigan Supreme Court believes — that it will promote an important "social value" to protect, from liability to purchasers, the makers and sellers of an article which, in case of fire, will create a hazard far greater than would otherwise exist, a hazard of which they are (or should be) aware but of which the purchasing householders are kept ignorant? What sound social policy inheres in such a rule? Yet, if my colleagues' ruling becomes a precedent, manufacturers and vendors who, for instance, make and sell, without warning, weather-stripping for windows (or weights attached to carpets) composed of thin magnesium strips, will be immune from successful suits against them, even if, in a fire, men, women or children burn to death because those strips produce the sort of intense flame the plaintiffs here encountered. Or consider a wall-paint containing a substance which, in a conflagration, will release poisonous fumes. My colleagues' ruling will tend to encourage the vending of such commodities perilous to human lives. The social interest20 in the free trade of goods, the need to avoid legal rules tending unduly to paralyze business initiative, and the fostering of a legitimate profit motive, do not extend that far.

My colleagues cite no Michigan case. The cases they cite do not support their position. In Coleman v. Gray, 10 Cir., 192 F.2d 265, 268, the court held that the evidence justified a jury verdict for a plaintiff injured by a defect in an iron when escaping vapor ignited and burned her. In Reed & Barton Corporation v. Maas, 1 Cir., 73 F.2d 359, 361, as already noted, the court, in sustaining a verdict for plaintiff, rejected the "inherently dangerous" terminology. In Crist v. Art Metal Works, 230 A.D. 114, 243 N.Y. S. 496, 499, affirmed 255 N.Y. 624, 175 N.E. 341, the defendant, a manufacturer of toy revolvers who advertised them as "absolutely harmless," was held liable because the flame from such a revolver ignited a Santa Claus costume in which the infant plaintiff was dressed. The Court said that the defendant must be deemed to have known that children during the Christmas season or at other times "would probably be garbed in inflammable material," and that therefore there was a proper case to go to the jury as to defendant's negligence.

In Beickert v. G. M. Laboratories, 242 N.Y. 168, 151 N.E. 195, the defendant, manufacturing motion-picture films, put unused scraps of inflammable films in a large container and burned them in a vacant lot. The plaintiff, an infant, set fire to some of the unburned scraps he found in the lot, and was injured. The court said 242 N.Y. at pages 174-175, 151 N.E. at page 196: "The facts in the instant case do not show that the result or cause of the accident could have been reasonably expected by the defendant. It had a right to burn the films in the vacant lot. It was not there storing such films. No person could reasonably be expected to foresee that while the films were being burned small pieces would be carried into the air and later settle upon the ground; that they would be picked up by small boys who had not been invited there, carried away, and then either by accident or design lighted. To hold defendant liable under such circumstances would be contrary to the great weight of judicial authority, and contrary to reason and common sense. * * * These results the defendant was not bound to anticipate." The court distinguished Travell v. Bannerman, 174 N.Y. 47, 66 N.E. 583, as follows: "There it appeared that the defendant was the proprietor of a gun and ammunition factory and adjoining the factory was an unfenced lot, which was and for some time had been used as a playground by the plaintiff, and other small boys; that the defendant stored or placed in this lot a cake of gunpowder and a cannon primer; that one of the boys found the powder and primer and proceeded to extract the brass imbedded in it, and, in doing so, it exploded, and he was injured. Obviously, the defendant could not expose young children to such a risk. He knew the boys were in the habit of playing in this lot and he knew, or was bound to know, of the dangerous character of the material if force were applied to it."

In Noone v. Perlberg, 268 A.D. 149, 49 N.Y.S.2d 460, the defendant manufactured an evening-gown with an overskirt containing nitro-cellulose sizing, of a highly inflammable character. Plaintiff, who bought the gown from a retailer, wore it at a New Year's Eve party in a club. While walking across the cocktail lounge of the club, her dress caught fire, flashed up in a blaze, and plaintiff was seriously burned. The trial court set aside a jury verdict in the plaintiff's favor and directed a verdict for the defendant. The upper court reversed with directions to enter judgment for plaintiff. Although there was no proof that the dress had come into contact with a lighted cigar or cigarette, the court said: "The manufacturer must or should have known that such an evening-gown would be worn to dinners and cocktail parties where large numbers of persons gather and many indulge in smoking."

Even were the New York decisions out of step with the rule generally prevailing elsewhere, they should not control the decision here. So my colleagues tacitly admit — by citing not only the Restatement but also cases arising in the First and Tenth Circuits.

In the light of the foregoing, I think the trial judge erred in charging the jury that they must find for defendants if the bathinette ignited because "it became subjected to flames from a previously started fire."21