Northwestern National Insurance of Milwaukee v. Rogers Pattern & Aluminum Foundry

McCOMB, J. This is an appeal by defendants from a judgment in favor of plaintiff, Northwestern National Insurance Company of Milwaukee, Wisconsin, a corporation, in the sum of $3,000, and from a judgment in favor of John E. Carson, Cornelius Prugh Harnish, trustees under the will of William S. Prugh, deceased, and Marion Wright in the sum of $3,300. The action was to recover damages resulting from the alleged negligence of defendants and was tried without a jury.

The evidence being viewed in the light most favorable to the plaintiffs (respondents), and pursuant to the rules set forth in Estate of Isenberg, 63 Cal.App.2d 214, 216 et seq. [146 P. 2d 424], the essentia] facts are :

Shortly prior to April 19, 1943, defendants sent to North American Metals Company ten sacks of metal alloy castings. Accompanying them in accordance with their established practice was a purchase order stating the castings were aluminum alloy castings heat-treat 195. North American Metals Company’s general manager, Mr. Leidig, had previously received similar shipments from defendants accompanied by similar purchase orders and had been orally assured by defendants that aluminum castings heat-treat 195 would be the only type of castings that would be sent to him. The number of the purchase order signified that defendants expected the castings to be immersed in a molten salt bath at between 925 and 970 degrees for a period of 12 hours. Before immersing a portion of the shipment in question Mr. Leidig saw that the color of some of the castings' differed slightly from the color of other castings in the same shipment and noticed a difference in the weight of the castings from those previously received. He thereupon rechecked the purchase order and examined certain test-bars which accompanied the shipment, and upon satisfying himself that the shipment was represented to be aluminum and was to receive heat-treat 195, he lowered the castings into a salt bath consisting of sodium nitrate heated to 900 degrees Fahrenheit. In fact, however, the shipment consisted of six sacks of aluminum castings and four sacks of magnesium castings. When the magnesium came in contact with the sodium nitrate bath a violent explosion took place resulting in a conflagration which caused damages to the plaintiffs in the sum of $6,300.

Defendants admit that they were negligent but con[444]tend that their concurrent negligence was the remote and not a proximate cause of the fire which caused damage to plaintiffs, in that the negligence of Mr. Leidig and the North American Metals Company was an independent intervening cause of the conflagration.