For modification -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Jacobs, Francis and Proctor. For affirmance -- Justice Burling. The opinion of the court was delivered by Jacobs, J.
The Appellate Division, on an appeal taken by National X-Ray Products Corp., reversed the judgment against it, and granted leave to North American Philip's Company, Inc. to move in the trial court for vacation of the judgment against it from which it had not taken any appeal. We certified under R.R. 1:10-2.
National, a New York corporation authorized to do business in New Jersey, was engaged in the sale of X-ray equipment and supplies and was the distributor for North American, a Delaware corporation engaged in the manufacture of X-ray equipment and supplies. Under date of June 8, 1954 North American, on behalf of its dealer National, submitted estimates to the Hackensack Hospital covering its X-ray requirements. It assured the hospital of North American's full cooperation with National, and "guaranteed" the X-ray equipment and the "Philip's shock-proof
cables" for one year and that National "shall give unconditional service and maintenance performances at no charge to run concurrently with the guarantee for one year." Thereafter the hospital purchased a diagnostic X-ray unit which was installed in the fall of 1954. Mr. Ulan, the administrator of the hospital, testified that the purchase order was given to National, which installed the equipment under the supervision of a technician from North American, and that after the installation the equipment was serviced by National on specific order and requisition by the hospital. Mr. Kohlhof, chief technician of the hospital, testified that he was in sole charge of the X-ray unit, that whenever repair service was necessary he called National which responded immediately, and that no one else ever serviced the equipment.
On March 2, 1955 the plaintiff Loretta R. Sinatra was a patient at the hospital and was taken to the X-ray room for fluoroscopy and X-ray. While she was on the X-ray table an overhead electrical cable of the X-ray unit sparked and emitted "billows of black smoke." She testified that she felt her arm burn, jumped off the table, and in doing so injured herself. The high voltage cable which occasioned the accident extended about six feet above the floor from a transfer to the X-ray tube and operated at an electric potential between 20,000 and 125,000 volts. On May 10, 1955 the plaintiff Loretta R. Sinatra, and her husband Samuel Sinatra who sued per quod, filed a complaint against National charging that Mrs. Sinatra's injuries resulted from National's negligence and seeking damages. The complaint did not join North American as a party defendant nor did it assert any warranty to the plaintiffs from either National or North American. See Cornelius v. B. Filippone & Co., Inc., 119 N.J.L. 540, 541 (Sup. Ct. 1938); Cassini v. Curtis Candy Co., 113 N.J.L. 91, 97 (Sup. Ct. 1934). But cf. Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E. 2 d 612 (Sup. Ct. 1958); 2 Harper & James, Torts 1603-1606 (1956).
On March 28, 1956 National filed a third-party complaint against North American asserting, in its first count, that
North American had warranted that the X-ray machine and cable were free of defects and had supervised their installation and that the plaintiff Loretta R. Sinatra had alleged that the X-ray machine and cable were defective and, in its second count, that the plaintiffs had alleged that North American had negligently manufactured, inspected and supervised the installation of the X-ray machine and cable and that as a result of North American's negligence the plaintiff Loretta R. Sinatra was allegedly injured. Even after the third party complaint was filed the plaintiffs took no formal action to enlarge their complaint and include North American as well as National. See R.R. 4:14-1. Cf. 2 Schnitzer & Wildstein, N.J. Rules Service A IV -345 et seq. (1951); 3 Moore, Federal Practice 401 et seq. (2 d ed. 1948). On October 16, 1956 the matter came on for trial and testimony was taken on that day and the following day. At the close of the plaintiffs' evidence, National moved for dismissal but its motion was denied. National then presented testimony by Sam Epstein, its president, who had participated in the installation of the X-ray unit.
Mr. Epstein testified that he had been in the X-ray business for 24 years; that National had always sold and serviced X-ray equipment and supplies and was the exclusive distributor for North American; that the component parts of the X-ray unit purchased by the Hackensack Hospital had been shipped by North American directly to the hospital where it remained unassembled for months and that ultimately it was assembled and installed by him and National's servicemen under the supervision of a representative of North American. Mr. Epstein testified further that the cable was not originally attached to the machine and that when National's servicemen plugged the cable into its proper terminals there was no test made of the cable because "there was no need for it." Later he testified that "the cable was tested thoroughly electrically before it was put into operation" and at other times he testified that he had made "a cursory examination" of the cable and had not made a thorough inspection of each component part of the
X-ray unit before it was assembled. There was no expert testimony as to general trade standards in the assemblage and installation of X-ray equipment nor was there any testimony as to the electrical or other facilities which were available to National for more extensive examination of the cable.
After Mrs. Sinatra had suffered her injury, one of National's servicemen picked up the cable and brought it to National's shop for inspection. Mr. Epstein examined it cursorily and testified that the cable had punctured, that there was "soot, carbonization of some sort" on the outside, that his impression was that the cable had punctured "due to a defect in the insulating material," and that the puncture had occurred not by some outside force but "from the inside out by the high current voltage." Under cross-examination by counsel for North American, he stated that a defect in insulating material would not necessarily appear when the full voltage was put on "because an inherent defect could get worse and worse with use and then finally puncture." Mr. Pans, manager of North American's medical and dental department, testified that all high tension cables are tested by North American at its plant and that its records indicated that the cable sold to National for use in the unit delivered to the Hackensack Hospital had been picked up by National at North American's plant. At the close of the testimony on behalf of all of the parties counsel summed up to the jury. Counsel for North American indicated that he thought that Mrs. Sinatra should recover but expressed the view that the recovery should be against National and not ...