On appeal from the Appellate Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Oliphant. The opinion of the court was delivered by Vanderbilt, C.J.
The plaintiff was a tree clearance man employed by the East Orange Shade Tree Commission. While he was 50 feet above the ground pruning a tree, supported by his climbing rope crotched in the tree 20 feet above him, the metal hook that secured his safety belt to the rope snapped as he was making a swing to another part of the tree, causing him to plunge to the ground. He instituted suit against the Meeker Foundry Company which had made the fractured casting, the Covert Manufacturing Company which had assembled the hook by attaching a clip and a spring to the casting, and the Asplundh Tree Expert Company, also known as The Asplundh Co., the supplier which sold the hook to the East Orange Shade Tree Commission. At the conclusion of the plaintiff's case involuntary judgments of dismissal were entered in favor of all the defendants. The plaintiff appealed against Asplundh only to the Appellate Division of the Superior Court, where a divided court affirmed the judgment below. From this judgment the plaintiff has appealed to this court.
It has been stipulated that the issue was whether the defendant failed in its duty of care to plaintiff "in negligently assembling, testing, and inspecting the aforesaid safety clip or snap, and further negligently represented that this safety hook or snap was adequate to be used as a safety hook or snap for use by tree trimmers." It appears that the Covert Manufacturing Company, which assembled the hook, ordered its castings from the Meeker Foundry Company by submitting a brass pattern. No specifications were furnished as to the desired tensile strength, the properties of the metal to be used, or the carbon content of raw material. The president of Meeker testified that although an analysis of its pig iron and home scrap supply was made daily, no analysis is made of the melt prior to casting. In this regard he stated:
"Ordinarily we charge about 40 per cent pig iron and the balance is home scrap which, of course, is almost entirely the gates and risers and runners from our previous day's melt. Then in order to control the silica content steel may be put in the melt or it may not be in the melt. Usually there is a small amount of steel."
Upon receipt of the casting Covert completed its assembly job by riveting a spring and clip to the casting. No tests were conducted to determine the tensile strength of its product, the only inspection being made by an employee who made a brief physical examination of each hook, worked the snap and either approved or rejected it. Covert has sold this particular article known as Hook No. 850 since prior to 1900, when it was originally designed for use in the harness trade. It does not appear that Covert made any representation that the hook was suited for any other purpose. Its catalogue No. 48 which lists this particular item as a Yankee Center Snap describes Covert as dealing in "Hardware for harness, saddlery, leather or web straps, chain and rope, and horse and mule jewelry." The foreword to the catalog states that "we have, therefore, made arrangements to supply full information, such as dimensions, approximate tensile
strength, and data on materials and finishes available. We invite inquiries."
Asplundh Tree Expert Company, which was itself engaged in the line clearance business, did on occasion sell equipment to shade tree commissions. On December 4, 1946 Mr. Ralph I. Kauffman, then director of training at Asplundh, conducted a lecture in Newark, attended by several hundred persons including Mr. Harry E. Turner, Secretary-Forester of the East Orange Shade Tree Commission. Movies were shown by Mr. Kauffman which demonstrated Asplundh's tree climbing and clearance technique through use of the hook in question, which was characterized by Mr. Kauffman in his lecture as "a time saver as well as a safety hook." In answer to an inquiry as to the safety factor of the hook Mr. Kauffman replied:
"I don't know, we never had one break. I think if it were to break it would be a fault in the snap itself. It won't break from the way you put it on. I believe the rope would break before the snap."
When asked if the hook was made of malleable steel he stated:
"Yes, there will be some of these outside. You can look at them. We have never had a snap break."
At the trial Mr. Kauffman testified that he didn't know whether it was made of malleable steel or malleable iron. In reply to a question "where do you have them made" he stated "we have them made up for ourselves." Asplundh had used this type of hook successfully for many years. The usual equipment of a tree climber, including that of the employees of the East Orange Shade Tree Commission, was a climbing rope and belt or saddle. The rope, which was crotched in the tree above the climber, was tied to the D-rings of the saddle, and in the event the climber wished to descend the tree it was necessary to untie the rope in order to free himself. Asplundh, on the other hand, used hooks on their saddle so that the climber in order to extricate
himself need only to unfasten the hook from the D-rings and thus leave the rope hanging in place.
After the lecture Mr. Turner made inquiries of Mr. Kauffman concerning the use of these hooks, and as a result ordered two dozen from Asplundh, delivery of which was received on February 11, 1947. One of the hooks was issued to the plaintiff in March 1947 and was used by him until February 1950, when it was discarded because the clip had become loose. A brand new hook was then issued and on March 30, 1950 the accident in question occurred as a result of the breaking of this hook.
On November 29, 1949 Asplundh had written Covert Manufacturing Company requesting a catalog and also information as to the possibility of acting as Covert's sales representative for tree climbing equipment. Covert's reply, dated December 7, 1949, approximately four months prior to this accident, was as follows:
We are pleased to acknowledge your letter of November 29 and wish to advise you that our line is normally distributed through wholesale hardware jobbers. However, we do have one or two distributors selling certain items to the dairy trade and it is possible that you could handle certain items to the particular trade that you serve.
Under separate cover we are sending a copy of our catalog. * * *
None of our snaps are drop forged or suitable for safety equipment but many of them are used for hanging accessories on linemen's belts and for ropes and other types of equipment not requiring critical loads. * * *
COVERT MANUFACTURING COMPANY"
Mr. Covert testified that the statement as to the use of the hook had been inserted because "we have been asked on occasion to furnish some of our products for window washing equipment and linemen's equipment where we knew the snap may be used so that somebody will be dependent on the snap with their whole weight; therefore we advised that this snap was made of malleable iron and not drop forged
and we would not sell this for that purpose, for use with human beings."
Asplundh made no inquiry as to the suitability of this particular type of hook for use in tree climbing. No tests were conducted to determine the tensile strength of the hook. Asplundh was never advised by Covert, or any one else, that the hook could be used otherwise than in connection with harness equipment.
Mr. William H. Smith, a professional engineer and chief of the Engineering and Inspection Department of the United States Testing Company, Inc., and an expert in metallurgy and micrography, testified on behalf of the plaintiff. His opinion and conclusion, based on a thorough microscopic examination of the broken hook, were as follows:
"It was my conclusion first that the material definitely is a malleable iron casting and has not been subjected to forging. Secondly that the portion of the hook at the point of probable greatest strain in the sudden application of a load, that at that area, there was at that point a rupture, there was a brittle area, an area in which the malleabilizing treatment had not been carried out perfectly or with complete success and that that constituted a latent defect in the material of which the hook was made. * * *
I think that the way this particular article failed under a suddenly applied or jerk load illustrates the reason why a malleable casting is not the best material for this type of use and that the forging would be much more effective."
He stated that where support of the body was involved he would "expect to encounter forged material," because "forged material, first of all it starts out as steel instead of cast iron, therefore it is more perfectly controlled in its manufacture right from the start. Secondly, the forging operation might disclose bad imperfections, it definitely works the material and produces toughness. The point in issue here is not tensile strength, it is toughness, lack of brittleness. Forging will give you high tensile strength plus lack of brittleness, plus toughness."
In affirming the judgment of dismissal the Appellate Division held that there was no duty upon ...