McLaughlin, Kalodner and Hastie, Circuit Judges. McLaughlin, Circuit Judge (dissenting).
In the instant personal injury action*fn1 the jury awarded damages to the plaintiff John Tromza against the defendants Tecumseh Products Company ("Tecumseh") and Marquette Corporation ("Marquette"), and the District Court found against Marquette in its cross-claim for indemnity against Tecumseh.*fn2
The District Court entered judgment in favor of the plaintiff against Tecumseh and Marquette pursuant to the jury's verdict, following its denial of their respective motions for judgment n.o.v., and Marquette's additional motion for a new trial. It also entered judgment in favor of Tecumseh against Marquette after denying Marquette's motion for judgment n.o.v. as to the cross-claim.
This appeal by Marquette followed.*fn3
It urges that it is entitled to judgment n.o.v. both in its cross-claim against Tecumseh and in Tromza's case; further, that asserted erroneous instructions to the jury by the District Court entitle it to the minimum relief of a new trial.
In reply, Tromza contends that the evidence sustains the jury's verdict in its favor against Marquette and Tecumseh and that the District Court did not err in its instructions to the jury. Tecumseh, in its reply, asserts that the District Court correctly entered judgment in its favor in the cross-claim for indemnity.
Discussion of the issues presented must be prefaced by this statement of the critical facts adduced at the trial.
Tecumseh manufactured and sold to Marquette a sealed compressor refrigeration unit which Marquette incorporated in a refrigerator which it manufactured. The compressor unit was enclosed in a steel casing or shell, whose two halves were welded by Tecumseh. The refrigerator manufactured by Marquette carried a plate which stated that the factory test pressure of the refrigeration unit was 195 pounds.
The casing or shell of the compressor unit exploded when the plaintiff, a repair man, submitted the refrigerator to a pressure of 170 pounds in proceeding to repair a gas leak in its refrigeration system. The plaintiff was seriously injured by the explosion.
Plaintiff's expert witness, Dr. Guy M. Pound, testified that the cause of the explosion was a defect in the weld of the casing. Tecumseh's expert witness, James R. Elliott, testified that it was the usual practice in the industry for an assembler (such as Marquette), to submit the refrigeration system to an air pressure test of 235 to 250 pounds after connecting the compressor unit to the system. Elliott also testified that Underwriters Laboratory Specifications required that the compressor casing or shell should be able to "withstand or have a bursting strength * * * of 350 pounds."
The case was submitted to the jury on the plaintiff's theory that Tecumseh was negligent both in its manufacture of the compressor unit and in failing to discover the defect by a proper inspection, and that Marquette was negligent in failing to make a proper test or inspection of the unit. We agree with the District Court that the evidence clearly supported the jury's finding that both Tecumseh and Marquette were negligent. As to Marquette, it need only be pointed out that there was undisputed evidence that the customary industry practice was to submit an assembled refrigerator to a pressure test of 235 to 250 pounds while Marquette made only a 195 pound pressure test.
We are further of the opinion that there is no merit to Marquette's complaint that the District Court, in its charge, erroneously instructed the jury on the score of negligence on the part of Marquette. Moreover, the record discloses that Marquette did not at the close of the charge, take exceptions to it. Rule 51 F.R.Civ.P. provides that "No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict * * *." The Rule has been universally applied except in cases of fundamental error. Freifield v. Hennessy, 353 F.2d 97, 99 (3 Cir. 1965). It may be noted ...