Penn v. Inferno Manufacturing Corp.

This case involves a personal injury claim wherein the plaintiff, Mr. John J. Penn, of Houma, Louisiana, was injured as a result of an explosion of a sight glass which was installed on a fluid level gauge of a high pressure separator unit which was being used to test an oil well in La-fourche Parish on June 9, 1962. Mr. Penn was the major stockholder and manager of Testers, Inc., a corporation engaged in the oil field well testing business.

In the early part of June, 1963, the plaintiff, Mr. Penn, retained counsel and on June 7, 1963, suit was filed for Mr. Penn’s personal injuries against Inferno Manufacturing Corporation, Republic Supply Company and Joe Teuton, dba Teuton Specialty Company. Believing that Inferno Manufacturing Corporation manufactured the gauge sight glass, it was alleged that Inferno Manufacturing Corporation negligently manufactured the sight glass and that Inferno warranted that the sight glass was free from defects. Plaintiff’s suit further alleged that Inferno sold the sight glass to Republic and that Republic warranted to the plaintiff that the sight glass was free from defects and alternatively that Republic negligently sold a defective glass to Mr. Penn. In the further alternative, it was alleged that Joe Teuton, dba Teuton Specialty Company, sold the glass to Mr. Penn, warranting that it was free from defects and alternatively that Teuton negligently sold a defective glass to Mr. Penn.

• After suit was filed, Inferno Manufacturing Corporation filed an answer and third party petition and in it alleged that it did not in fact manufacture the sight glass which was involved in the accident but that said sight glass was manufactured by Corning Glass Works of Corning, New York, for them. Corning Glass Works is insured by Insurance Company of North America. Corning Glass Works, however, was never served, but their insurer, Insurance Company of North America was served and made an appearance.

In due course, various interrogatories were propounded by Insurance Company of North America to Inferno Manufacturing Corporation, and these interrogatories were answered by Inferno Manufacturing Corporation who stated that they acquired all of their sight glasses from Corning Glass Works. Thereafter, on March 17, 1965, plaintiff filed a supplemental and amending petition alleging that Inferno Manufacturing Corporation and/or Corning Glass Works manufactured the glass and prayed for judgment in solido against these defendants along with Republic Supply Company and Joe Teuton, dba Teuton Specialty Company and against Corning and Insurance Company of North America. Corning was never served and thus never became a party to the suit.

The case was tried on the merits and consumed four days of trial. After the case was submitted and briefs filed by all parties except Insurance Company of North America, then, for the first time, INA filed an exception of prescription. Supplemental briefs were filed on the exception of prescription and after the filing of these supplemental briefs, the Trial Judge rendered judgment in favor of plaintiff, Mr. John J. Penn, for $322,041.85, and against INA and Inferno, jointly and in solido, and further gave judgment in favor of Inferno on its third party demand which it had brought against INA for indemnity. Judgment was rendered in favor of defendants, Republic Supply company and Joe Teuton, dba Teuton Specialty Company, dismissing plaintiff’s suit against them.

Appeals have been taken by INA and by Inferno Manufacturing Corporation. No appeals have been taken from the judgment in favor of Joe Teuton, dba Teuton Specialty Company and Republic Supply Company. Plaintiff and appellee, John J. Penn, however, has answered the appeals of Inferno and INA and asked that the judgment be increased from the sum of $322,-041.85 to the sum of $350,784.22, together with interest from date of judicial demand and for all costs.

Defendants set forth the following specifications of error:

I. The trial court erred in failing to sustain appellant’s plea of prescription-

II. The trial court erred in holding that the gauge glass was defective.

III. The trial court erred in holding that the explosion was caused by a defective gauge glass.

IV. The trial court erred in holding that the plaintiff’s injuries and entire physical condition were caused by the explosion.

V. The trial court erred in awarding the plaintiff the excessive sum of $322,-041.85.

1. PRESCRIPTION

On the plea of prescription, counsel for plaintiff has furnished us with a splendid statement and research of the law and for that reason we adopt same as our own.

“As previously pointed out, it was ' only after the case had been completed, briefs ordered by the Court and briefs filed by all parties with the exception of INA that INA sought, for the first time, to raise the question of prescription. It should be noted in the supplemental and amending petition filed herein by plaintiff that the plaintiff, Mr. Penn, amended his original petition by praying for judgment in solido against INA, Inferno and the other defendants. It is well settled under Louisiana Law that prescription against a tortfeasor who is not sued within the year is interrupted when this tortfeasor is liable jointly and in solido with a tortfeasor who has been timely sued. There is no question, certainly, but that suit was timely filed against Inferno, and the first and basic issue presented as to the question of prescription is whether or not Inferno and INA are joint tortfeasors. The Trial Judge found that Inferno and INA were joint tortfeasors. Appellant, INA, now argues that appellee is ‘grabbing at interruption-of-prescription straws’ because of the argument that Inferno is a joint tortfeasor along with INA, because Inferno labeled the product as its own and held itself out to be the manufacturer of the sight glass. Appellant, INA, contends ‘There was never an allegation of such a holding out, and the record is bare of any evidence that Inferno in fact ever held itself out as the manufacturer.’

We particularly wish to point out to the Court that at the time suit was filed, petitioner believed the sight glass which was the subject of the suit to be manufactured by Inferno Manufacturing Corporation. The sight glasses themselves, which are introduced into evidence bear markings identifying them as being manufactured by Inferno Manufacturing Corporation, and it was not until after filing the suit and answers were filed and interrogatories answered that there was any indication at all that the glass was made by Corning Glass Works (who is insured by Insurance Company of North America). In addition, Insurance Company of North America (on behalf of Corning Glass Works) denied having manufactured the glass and seriously contested the question of manufacturing the glass on the trial of the case and tried to establish that the glass which had been sold to Mr. Penn had been manufactured by some foreign source. It appears that after the fact became apparent that the glass which was involved in the explosion was manufactured by Corning that Insurance Company of North America decided to come in and file an exception of prescription in an attempt to avoid liability.

First let us examine what evidence the record contains indicating that Inferno held itself out as the manufacturer of the sight glass or glasses which are the subject of this case. First of all, there are the remaining sight glasses which had been purchased by the plaintiff, Mr. John Penn, which have been identified in evidence as Exhibits “P-2” and “P-20”. These sight glasses which were introduced in evidence were, of course, not the one which exploded and seriously injured Mr. Penn, but they have been idntified in Mr. Peen’s [Penn’s] deposition as being the remaining sight glasses which Mr. Penn acquired from Republic Supply Company during the month of February, 1962. An examination of these sight glasses, Exhibits “P-2” and “P-20”, show that they bear markings on one side thereof of “Inferno Special Alkaline” and on the other side thereof “Shreveport, La. U.S.A. Patent 3-25-24”. We also ask the Court to look at part of Exhibit “P-2” which is the box containing one of the sight glasses. On the box is a label which says “Inferno Company, Shreveport 90, La.” If this is not holding out by Inferno and labeling by them that they are the manufacturer of the product, then what is?

There is further evidence that Inferno held itself out as the manufacturer of the sight glasses. We call the Court’s attention to the invoices filed in evidence as Exhibit “P-10” and “P-11” wherein Mr. Penn was billed for the purchase of certain sight glasses. Exhibit “P-10” shows that in December of 1959, Testers, Inc. (Mr. Penn’s company) acquired two S-14 Special Alkaline Glasses for Inferno Special Type reflex gauge. Exhibit “P-11” is an invoice of Republic Supply Company bearing No. 38319 which shows an order dated February 19th of 1962 by Mr. Penn for four S-4 reflex gauge glasses with gaskets for an Inferno Liquid Gauge.

It should be noted that nowhere on either the sight glasses, the label on the box, or any of the invoices or orders for sight glasses is there any indication that they were manufactured by anyone other than Inferno. We submit the record clearly indicates that Inferno most certainly did hold itself out as the manufacturer of this product.

We submit that it is a fundamental rule of law that knowledge of the defective qualities in a thing sold can be imputed to the manufacturer thereof thereby justifying and awarding damages against the manufacturer. We will, in a later portion of this brief, cite numerous authorities in support of this general rule. We further recognise that as a general rule the courts of this state have refused to impute such knowledge to a vendor who is not also the manufacturer of the article.

We submit, however, that there is an exception to this last rule (which allows knowledge to be imputed to a seller or dealer who is not also the manufacturer of the article when the seller or dealer has labeled the goods as his own or has in some way held the goods out to be manufactured by him. See Vol. XXIV Louisiana Law Review, page 200. Various common law states have already adopted this view.

In Volume 65 of Corpus Juris Secundum [Negligence § 100(3)], at page 633 [1106] the following language is found:

‘Vendor holding himself out as manufacturer. One who puts out or sells as his own product a chattel manufactured by another is subject to the same liability as the manufacturer for damages caused by dangerous defects therein as the result of negligence in its fabrication or lack of proper inspection.’

citing:

Conn.-Burkhardt v. Armour & Co., 161 A. 385, 115 Conn. 249, 90 A.L.R. 1260.

Ill.—Lill v. Murphy Door Bed Co. of Chicago, 8 N.E.2d 714, 290 Ill.App. 328.

Mo. [Md.]-Armour & Co. v. Leasure, 9 A.2d 572, 177 Md. 393.

Miss.-Swift & Co. v. Hawkins, 164 So. 231, 174 Miss. 253.

N.J.-Slavin v. Francis H. Leggett & Co., 177 A. 120, 114 N.J.Law 421, affirmed 186 A. 832, 117 N.J.Law 101.

N.Y.-Poplar v. Bourgois, Inc., 80 N.E. 2d 334, 298 N.Y. 62-Gittelson v. Gotham Pressed Steel Corporation, 42 N.Y.S.2d 341, 266 App.Div. 866. Auld v. Sears, Roebuck & Co., 25 N.Y.S.2d 491, 261 App.Div. 918, affirmed 41 N.E.2d 927, 288 N.Y. 515.

Ohio-Dow Drug Co. v. Nieman, 13 N.E. 2d 130, 57 Ohio App. 190.

Tex.-S. Blockman [Blickman], Inc. v. Chilton, Civ.App., 114 S.W.2d 646.

U.S.-Carney v. Sears, Roebuck & Co., C.A.Va., 309 F.2d 300.

Ala.-Sears, Roebuck & Co. v. Morris, 136 So.2d 883, 273 Ala. 218.

Fla.-King v. Douglas Aircraft Co., App., 159 So.2d 108.

Particularly we would like to call this Court’s attention to the case of Carney v. Sears, Roebuck and Co., 309 F.2d 300 (1962) U.S. Court of Appeal, Fourth Circuit, wherein this problem was squarely considered by a Federal Appellate Court. The Carney case, supra,, was one wherein the claimant Carney purchased a “Work-master” ladder from Sears, Roebuck and Co. The Court pointed out that ‘Work-master’ was the trade name used by Sears. While plaintiff was using the ladder, it collapsed and suit was brought alleging that there was faulty construction. The U.S. Fourth Circuit Court of Appeal noted in its reasons for judgment, the following:

‘The undisputed evidence in the record shows that the defendant was not the manufacturer of the ladder. The ladder was manufactured by the J. R. Clark Company of Minnesota, but the name of the manufacturer does not appear at any place on the ladder and the defendant’s name appears on the label attached to the ladder. There was no indication either about the merchandise or in the newspaper that anyone other than the defendant had anything to do with this product.’ Supra, at 302.

In reasoning that Sears be held responsible, the Court cited with approval the following language from the Restatement of the Law of Torts, Vol. 2, Sec. 400, comment c.

‘One who puts out as his own product chattels made by others is under a duty to exercise care, proportionate to the danger involved in the use of the chattels if improperly made, to secure the adoption of a proper formula or plan and the use of safe materials and to inspect the chattel when made. But he does not escape liability by so doing. By putting a chattel out as his own product, he causes it to be used in reliance upon his care in making it. Therefore, he is liable if, because of some negligence in its fabrication or through lack of proper inspection during the process of manufacture, the article is in a dangerous defective condition which the vendor could not discover after it was delivered to him.’ (Italics ours.) Supra at 304.

The Court commented further on the basis of its ruling as follows:

‘The basis of the rule is that where the vendor puts only its name upon the product without indicating that it is actually the product of another then the public is induced by its reasonable belief that it is the product of the vendor to rely upon the skill of the vendor and not upon the skill of any other.’ Supra, at 304.

As previously pointed out in this instance we feel that the record is abundantly clear that Inferno marked and sold as its own product the sight glasses which were in fact manufactured for them by Corning Glass, and we submit that under the above line of authority they should be held jointly liable as a result of the damages which Mr. Penn sustained.

Even if Inferno is considered a dealer of the sight glasses for Corning Glass, under further authority Inferno can be held liable under this rule imposing liability for representing themselves as the manufacturer of the product.

Again in Volume 65 of Corpus Juris Secundum at page 637 [1114] the following language is found:

‘Dealer representing himself as manufacturer. In accordance with the general rule imposing on a dealer holding himself out to be the manufacturer of an article the same liability as is imposed on a manufacturer for defects in the article, as discussed supra subdivision c(l) of this section, a dealer who so holds himself out is liable for defects which he could have discovered by proper inspection and tests.’

citing:

Ill. — Lill v. Murphy Door Bed Co. of Chicago, 8 N.E.2d 714, 290 Ill.App. 328.

U.S.-Carney v. Sears, Roebuck & Co., C.A.Va., 309 F.2d 300.

Counsel for appellant, INA relies strongly on the case of Coignard v. F. W. Woolworth & Co., 175 So. 123, (Orleans Appeals, 1937) and submits that it clearly exonerates Inferno from liability in this instance. A reading of the Coignard case, supra, will reveal that in it a parent brought suit on behalf of her minor daughter against Woolworth as a retailer for damages caused by injury to the daughter resulting from the use of a defective toothbrush which the daughter had purchased from Woolworth. A reading of the case reveals that in the plaintiff’s petition she alleged that she purchased a “Superfine” toothbrush from Woolworth, which toothbrush, according to the label thereon was made in Japan. The plaintiff then further alleged that the toothbrush was defective, etc., and that certain injuries were sustained by her daughter. Plaintiff contended that Woolworth should be held liable since it was impossible to sue the manufacturer. Exceptions were filed and the suit was dismissed when the exceptions filed by the defendant were maintained.

It is clear, therefore, that in the Coignard case, supra, there was absolutely no mislabeling of the product, nor any holding out by Woolworth that it was the manufacturer of the toothbrush. In dismissing the plaintiff’s suit, the Orleans Court of Appeal refused to follow certain common law jurisprudence to the effect that the sellers of certain foods were held liable although they did not manufacture or prepare the food. The Orleans Court of Appeal cited specific articles of the Louisiana Civil Code which clearly state the general rule that the vendor of a product who has no knowledge of a vice or defect in the product is not liable for damages caused by the vice or defect. The Coignard case, supra, is clearly distinguishable from the present case. Here, Inferno has represented itself as the manufacturer of the product and therefore under the exception to the general rule knowledge of the defect in the product can be imputed to them.

Counsel for defendant and appellant, Inferno Manufacturing Corporation also cites the Coignard case, supra, and in addition thereto cites Hurley v. J. C. Penny Company, 140 So.2d 445 [La.App.], First Circuit (1962) and Boyd v. J. C. Penny Company, 195 So. 87 [La.App.], First Circuit (1940). We submit that a reading of these two cases will also readily disclose that they enunciate the same rule found in the Coignard case, namely, that the ordinary vendor of a product who has no knowledge of a vice or defect in the product is not liable for damages. Neither the Hurley case, supra, nor Boyd case, supra, should lend appellants any comfort, however, since in neither instance is there any evidence that there was any mislabeling or holding out by the defendants that the product was their own. In the Hurley case, supra, the Court of Appeal stated that the lawn mower which was allegedly a dangerous instrumentality, was not manufactured by J. C. Penny Company and the Court commented that there was no evidence whatsoever in the record that the mower was in any way improperly designed nor was there any evidence to show that there was a defect or vice in the mower. In the Boyd case, supra, the plaintiff sought to recover for damages caused by a dress which allegedly contained a dye which caused an irritation to her skin. There is absolutely nothing in the decision to maintain that J. C. Penny in any way held out the dress to be its own, and the Court pointed out that the defendant, J. C. Penny Company, did not have any reasonable means of knowing or ascertaining before the dress was sold that it contained any injurious substances.

The situation is considerably different in the instant case, however, where the record clearly reflects that Inferno Manufacturing Corporation placed their label upon this product which was a component part of a gauge which they manufactured. The record abundantly reflects that the Inferno gauge is well known in the oil fields of South Louisiana and Inferno, in placing their label upon the gauge and the sight glass, has held itself out to be the manufacturer or maker of the product. The very fact that the sight glasses were labeled with Inferno’s name is even more misleading because Inferno was so well known in the oil fields as being a manufacturer of oil field equipment. The cases involving J. C. Penny and Woolworth do not present such a situation. It should be also remembered that Corning Glass denied that they manufactured the sight glass that exploded causing Mr. Penn’s injuries. In fact, the testimony of Mr. A. G. Blanchard, the President of Inferno Manufacturing Corporation, will reflect that he was questioned extensively by the attorneys for Insurance Company of North America (the insurer of Corning Glass) as to whether Inferno had ever poured any glass in their own molds which had been returned to them by Corning and was also questioned regarding whether Inferno had ever purchased any glass from foreign sources. The testimony of Mr. Blanchard clearly shows that the molds had been returned to Inferno Manufacturing Corporation by Corning Glass for some period of time. Apparently, therefore, the molds belonged to Inferno and certainly Inferno must be considered as a party to the manufacturing process when the glass is poured and cast in their molds. Certainly Inferno is bound up in the manufacturing process of the glass as well as the gauge, with both products having the name of Inferno Manufacturing Corporation prominently displayed and represented to the public as being Inferno’s product. We respectfully submit that such actions clearly call for an application of the jurisprudence hereinabove cited, which cases provide an exception to the general rule and allow knowledge of a vice or defect to be imputed to a seller who is not also a manufacturer of the article when the seller has labeled the goods as his own or has in some way held them out to be manufactured by him.

It is further submitted that the various code articles cited in the Coignard case which has been relied on by counsel for appellants are not applicable in the instant case, since it should be apparent from a reading of these articles that they do not contemplate a situation where a vendor has held out a product which he did not manufacture to be his own. Public policy should not encourage the mislabeling of products. In fact, such actions are frowned upon in our law since there are various statutes and regulations concerning the issuance of patents, trade marks, trade names, copyrights, and the like, all of which are designed to help protect the public. (See for example, 15 U.S.C.A. 1125, which permits a civil action for damages sustained by any person damaged by the result of falsely describing or representing a product.) This case, we submit, exhibits the most logical reason why the common law rules which hold a dealer or vendor liable for the mislabeling of a product should be adopted in Louisiana.

Even if the mislabeling and holding out by Inferno that they were the manufacturer of the sight glasses was not sufficient in itself, then we ask that the Court further consider the fact that the undisputed testimony of Mr. A. G. Blanchard, the President of Inferno Manufacturing Corporation, shows that the molds in which these glasses had been cast belonged to Inferno. Particularly, we wish to call the Court’s attention to the following testimony which was elicited by counsel for INA during his cross-examination of Mr. Blanchard.

‘Q. Sometime in the 1950’s your company, Inferno, asked Corning Glass Company to return to you their molds for this size proprietary gauge glass, that is, the molds that had your Inferno sign on them and the special alkaline or Inferno, Shreveport, Louisiana, on them?

A. Yes, I remember that, but I don’t remember if it was this particular size or not because they have a number of our molds.

Q. Why did you want the molds back?

A. We were considering making the glasses ourselves.

Q. What was done with the molds when you had them?

A. We kept them for about a year and then I think we sent them back to them.

Q. You were going to make some glass yourself?

A. Yes.

Q. How far along did you get in that process ?

A. Just thinking about it.

Q. You never got it off the thinking stage?

A. No.

Q. You never did anything to the mold? Didn’t you try to fill the molds with glass once or twice ?

A. No.’

(Transcript pages 379, 380)

Certainly, Inferno must be considered as a party to the manufacturing process for the sight glasses when the sight glasses were poured and cast in their molds. How the defects or ‘bubbles’ got into the sight glasses during the manufacturing process is not known by Appellee. This knowledge is particularly within the knowledge of defendants and appellants. It just could be that the ‘bubbles’ resulted from faulty or defective molds which are apparently owned by Inferno. For that reason alone Inferno should be considered as party to the manufacturing process and held liable in solido as a manufacturer.

Counsel for appellant, INA, contends that the law of prescription is based upon sound public policy and is favored in the law and further contends that ignorance of one’s rights will not prevent the tolling of prescription. (See brief of appellant, INA, page 6). We submit that the jurisprudence of the State of Louisiana indicates that our Courts have for years taken a very liberal approach to the application of the law of prescription. As an example of the more liberal approach adopted by our courts, we particularly wish to call this Court’s attention to the comments in the Louisiana Law Review regarding the decision of the Louisiana Supreme Court in the case of National Surety Corp. v. Standard Accident Insurance Co. [247 La. 90S], 175 So.2d 263 (1965). In the National Surety Corporation case, supra, defendant had filed a prescription of one year which had been sustained in both the Trial Court and the Court of Appeal. The Supreme Court reversed.

‘The Supreme Court, speaking through Justice Hamlin, took a completely different approach to the problem, which it solved through a broad and liberal interpretation of the statute relating to the interruption of prescription by suit. The statutory language which it found pertinent reads as follows:

‘All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, * * * by the commencement of a civil action in a court of competent jurisdiction and in the proper venue.’

The Supreme Court pointed out that while the intervener’s demand was different from that of the original defendant, both demands were based on the same cause of action; and, consequently, the plaintiff’s suit interrupted the running of prescription against the common cause of action.’

(Louisiana Law Review, Vol. XXVI, Pages 587, 588)

We further submit that the law of Louisiana is clear that prescription does not run against one without knowledge of the existence of facts which would entitle him to bring a suit against the proper defendant. The Supreme Court of Louisiana in 1939 in the case of Walter v. Caffall [192 La. 447], 188 So. 137, clearly sets forth this rule in the following language:

‘The record in this suit shows that the plaintiffs had never been put on notice of any of these facts and had apparently no reason to make any special search of the records; that they had no knowledge or information as to the facts; that none of the defendants ever disclosed any of these facts to them, nor had any one else ever called their attention to these facts. This Court is of the opinion that the plaintiffs under the circumstances disclosed in this record come within the rule that prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring a suit, when such ignorance is not wilful and does not result from negligence. Simply because these facts may have been obtained at a particular place or in a particular manner, and the plaintiffs did not happen to make a search in that particular place and especially since they had never been put on notice and were wholly ignorant of the existence in any place of the facts upon which to base an action, this Court does not think their ignorance is wilful nor the result of any negligence on their part.’ Supra, at page 143. (Italics ours)

The Walter case, supra, has been cited with approval by the Second Circuit Court of Appeal in the case of Youngblood v. Burke [La.App.], 43 So.2d 695, 698, and we also ask the Court to note the case of Perrin v. Rodriguez, 153 So. 555, Orleans Court of Appeal (1934) wherein the following language is found:

‘A defendant who either intentionally or unknowingly ‘succeeds in concealing from a creditor his cause of action cannot be allowed to reap the benefit of his own wrong.’ (Syllabus No. 3). Hyman v. Hibernia Bank & Trust Company et al. 139 La. 411, 71 So. 598. See, also, Bernstein v. Commercial National Bank, 161 La. 38, 108 So. 117. Supra, at page 556.

Under the circumstances we submit that prescription in this instance should be held interrupted since Inferno misled plaintiff and appellee, John Penn, by labeling the sight glasses as their own. It is not difficult to understand why Mr. Penn or his attorneys should be misled into believing that the sight glasses were made by Inferno when they had Inferno’s name stamped upon them, when they were packaged in a box with Inferno’s label upon them, when they were purchased with invoices showing them as Inferno’s sight glasses, and when they were a component part of a gauge manufactured by Inferno. In fact, even the name Inferno Manufacturing Corporation infers that Inferno was the manufacturer and no one had any reason to doubt that Inferno was the manufacturer of the sight glasses when their name was prominently displayed on the gauge, glasses, labels and invoices.

Nowhere on any invoice or gauge or glass was any information available that the sight glasses were made by Corning. In fact, the first knowledge that appellee had that Corning was involved was the filing of the third party petition by Inferno setting forth that Corning had manufactured the sight glasses. It should be remembered that Corning denied the manufacturing of these sight glasses and strenuously cross-examined Mr. Blanchard, the President of Inferno, in an attempt to establish that Inferno had manufactured the glasses in Inferno’s molds.

We submit that the law should not allow the manufacturer of a product to mislead the public by the improper labeling of the product. In this instance, Mr. Penn should not be deprived of his right of action against INA (the insurer of Corning) by the tolling of the statute of prescription when, through concealment and deliberate mislabeling, he was led to believe that Inferno was the manufacturer of the product which caused him injury.

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“We would now like to review the law concerning the duty, responsibility and liability of the manufacturer and seller of the product such as the sight glass in question. In Louisiana the early case of Doyle v. Fuerst et al., 129 La. 838, 56 So. 906 [40 L.R.A., N.S. 480], is a leading case dealing with the duty, obligation and liability of a manufacturer. In the Doyle case, supra, plaintiff suffered ptomaine poisoning from having eaten cakes made at the establishment of the defendant. After discussing the duty, responsibility and liability of the manufacturer of the product, the Court held the defendant liable and stated in their reasons for judgment citing from previous cases and the early authorities:

‘But there is an hypothesis under which the purchaser will not be required to make this proof’ (the proof that the vice was apparent, or that the vendor had knowledge of it). ‘It is where, by reason of the profession which he exercises, the vendor should have known even the hidden defects of the things he sells.

‘Thus, even though the vendor was ignorant of the vices of the thing sold, if by his profession he was bound to know them, he is in fault and ought to indemnify the purchaser for the damage suffered; good faith does not exclude incompetency.’ Doyle case, at page 844 [56 So. at page 908], (Italics ours)

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‘However, it is generally conceded that the vendor is presumed to know the vices of the thing sold when he is a workman or manufacturer selling the things of his own fabrication; he ought to know their defects, and, if he makes the sale without revealing these defects to the purchaser, he ought to repair the damage which the latter may suffer therefrom; he ought to know what he sells, since it is his own production, and, if he does not know it, there is on his part an incompetency which is a professional fault whereby he is rendered responsible for the damage.’

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‘In the case of George v. [Shreveport] Cotton Oil Co., supra [114 La. 498, 38 So. 432], this Court had occasion to affirm the doctrine that a manufacturer is conclusively presumed to have known the defects of the things of his own manufacture which he has sold.’ Doyle case, supra at 844 [56 So. at 908].

The Doyle case, supra, has been followed and cited with approval in a number of subsequent cases, among which is the case of Johnson v. Hunter [La.App], 88 So.2d 467 (1956) wherein the Court stated the following in affirming the holding of the Doyle case:

‘The principle which governs in this case is that every one ought to know the qualities, good or bad, of the things which he fabricates in the exercise of the art, craft, or business of which he makes public profession, and that lack of such knowledge is imputed to him as a fault, which makes him liable to the purchasers of his fabrications for the damage resulting from the vices or defects thereof which he did not make known to them and which they were ignorant of.’

(Johnson case, supra [88 So.2d] at 470).

It is submitted that the laws of other jurisdictions as well as the laws of the State of Louisiana place a duty upon a manufacturer to know all of the dangerous qualities of the thing which he manufactures and he is responsible to make those dangers known to parties who purchase this product and this is so even though the product itself is not inherently dangerous.

A comprehensive analysis dealing with the liability of manufacturers of products can be found in Volume 65 of Corpus Juris Secundum, which specifically discusses the duty placed on a manufacturer to know the danger of his product whether they are inherent dangers or not and the responsibility of the manufacturer to warn the public by labels or otherwise of the manner in which the product may be safely used. Particularly we would like to call the Court’s attention to the following language:

‘There is a duty to give notice or warning of the dangerous qualities of the article, especially where there is a representation that the product is not dangerous, and, where such notice or warning is not given, the manufacturer or seller is liable for an injury arising from a use which should have been contemplated, at least where the manufacturer or seller failing to give notice has knowledge of the dangerous qualities. If the article is dangerous to human life if improperly used, the manufacturer and distributor must apprise the public by labels or otherwise of the manner in which the article may be safely used.’ (Italics ours) ([65 Corpus Juris Secundum] at page 623 [1082])

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‘As a general rule, however, the manufacturer is under a duty to make the article carefully where its nature is such that it is reasonably certain to place life and limb in peril when negligently made, if put to the use for which it is designed and intended or to a use which can reasonably be anticipated, and there is knowledge that the article will be used, without new tests, by persons other than the purchaser; and he is liable for an injury to a third person resulting from a failure to perform this duty, if such injuries could reasonably be anticipated, although there is no contract or privity between the parties. * * * The fact that the article is not inherently dangerous if properly made is immaterial. The failure of the purchaser to make tests of the article does not absolve the manufacturer from liability to third persons.’ (Italics ours) (Supra, at 629 [1094])

‘While the manufacturer’s liability doctrine has been held to be limited in its application to finished products, it has also been held to apply to the manufacturer of an article whether it is a component part or an assembled entity.”

(Italics ours) (Supra, at 632 [1103])

WE FURTHER SUBMIT TO THIS HONORABLE COURT THAT THE FACT THAT ANOTHER SIGHT GLASS (ONE FROM THE SAME BATCH CONTAINING THE ONE WHICH EXPLODED INJURING MR. PENN) EXPLODED ON THE SAME MORNING WHILE MR. ANDRUS WAS ATTEMPTING TO RUN A TEST, CONSTITUTES A VERY CLEAR INFERENCE THAT CORNING GLASS HAD NOT EXERCISED THE DEGREE OF CARE REQUIRED OF THEM IN THE MANUFACTURE OF THEIR PRODUCTS. Particularly we would like to call the Court’s attention to the holding of the Supreme Court of North Carolina in the case of Davis v. Coca-Cola Bottling Co. of Asheville [228 N.C. 32], 44 S.E.2d 337, (1947) wherein the following language is found:

‘(2) But in cases where compensation is sought for injury caused by such explosion, the rule established by this Court is that when it is made to appear that other bottles fitted by the same bottler, under similar circumstances, about the same time, have exploded, there is afforded some evidence of negligence sufficient to be submitted to the jury, as it would thus form the basis for the permissible inference that the bottler had not exercised that degree of care required of him under the circumstances. Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Grant v. Graham Chero-Cola Bottling Co., 176 N.C. 256, 97 S.E. 27, 4 A.L.R. 1090; Cashwell v. Fayetteville Pepsi-Cola Bottling Works, supra [174 N.C. 324, 93 S.E. 901]; Fitzgerald v. Southern R. Co., 141 N.C. 530, 54 S.E. 391, 6 L.R.A., N.S., 337. And this court has been careful, before permitting plaintiff’s case to be submitted to the jury, to require that plaintiff offer evidence of other instances of bottles filled by defendant exploding under ‘substantially similar circumstances and reasonable proximity in time.’ Ashkenasi [Ashkenazi] v. Nehi Bottling Co., 217 N.C. 552, 8 S.E.2d 818. As tending to show actionable negligence on the part of the defendant, it is competent for plaintiff to show that products produced by the defendant under substantially similar conditions and sold by it at about the same time contained the same defects, such similar instances being allowed to be offered as some evidence of defend-' ant’s negligence at time of plaintiff’s injury ‘when accompanied by proof of substantially similar instances and reasonable proximity in time.’ Tickle v. Hobgood, 216 N.C. 221, 4 S.E.2d 444, 445; McLeod v. Lexington Coca-Cola Bottling Co., 212 N.C. 671, 194 S.E. 82; Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Broadway v. Grimes, 204 N.C. 623, 169 S.E. 194.” (Italics ours) Supra [44 S.E.2d], at 339.

We submit that we have shown where the particular product (the sight glass which injured Mr. Penn) was produced by the defendant, Corning Glass, and was sold by its distributor at the same time that the other three glasses were acquired. We have shown conclusively that plaintiff, Mr. Penn, acquired four sight glasses on February 19, 1962, and these sight glasses were manufactured by Corning Glass with Inferno’s label on them. We have shown that of these four same glasses, one exploded injuring Mr. Penn, another exploded shortly thereafter on the same day following installation by Mr. Andrus. The two remaining sight glasses, which have been introduced in evidence as “P-2” and “P-20” both contain visible bubbles or discontinuities, the effect of which has previously been discussed.

We further submit that the record is clear that Corning Glass did not test all of the sight glasses which they placed on the market (see testimony of Mr. Shand, transcript page 566) and that Inferno did not inspect them at all (transcript page 566), and we submit that this failure to test a product which they knew, or should have known, was going to be used in a gauge which was subject to high pressures constitutes negligence.

Further, we submit that Corning Glass and Inferno were negligent in failing to give any instructions to either their distributors or their consumers regarding the limitations, capabilities and use of their sight glasses in Inferno’s gauges since they knew, or should have known, that these sight glasses would be used in a situation where they would be subjected to high pressures and users should have been warned of any factors which might arise due to their installation which might adversely affect the capability of the sight glasses to withstand pressure.

We submit, also, that Corning Glass and Inferno were negligent in failing to provide Mr. Penn or any other purchaser with any information regarding the capacity or capability of the sight glass as to withstand any particular pressure and also to warn Mr. Penn and other consumers of any factors that might adversely affect the ability of the sight glass to hold a certain amount of pressure.

In conclusion, therefore, it is submitted that Insurance Company of North America, the insurer of Corning Glass, and Inferno are jointly liable in this case for the damages and injuries which were inflicted upon the plaintiff, Mr. John J. Penn, due to their negligence, which, among other things, consisted of their failure to properly inspect their sight glasses for defects of manufacturer; their failure to warn Mr. Penn, or any other consumer, of the capacities of their product; and their failure to warn Mr. Penn, or any other consumer, of any special care to be used in the installation or use of their product. We further submit that Inferno and Insurance Company of North America, as the insurer of Corning Glass, are liable for the injuries to Mr. Penn which resulted from the negligence and breach of warranty on the part of Corning Glass and Inferno in manufacturing (under Inferno’s label) and placing a fluid level sight glass in the stream of commerce which ultimately was obtained by the plaintiff, Mr. John Penn, when said sight glass was manufactured in a dangerous and defective manner and was not safe, sound and free from latent or other vices or defects or fit and safe for the purpose for which it was to be used. We submit that under the laws of the State of Louisiana, the manufacturer is liable for his breach of warranty for placing this sight glass on the market where it was obtained by Mr. Penn when it contained bubbles or seeds which were defects which caused it to fail at a pressure at which it should have been capable of performing had these defects not been present. Likewise, under the authorities previously cited in the first portion of this brief, Inferno as a dealer or vendor should be held liable for its participation in the manufacturing process and for holding the product out as its own by placing its own label thereon. The law is clear that the manufacturer and dealer who labels a product as his own are bound to know the vices of the product and if they are aware of them, they are bound to warn the public of them. In this instance, neither was done for the evidence clearly reflects that neither Corning Glass nor Inferno properly inspected their sight glasses, or if they did inspect this batch of sight glasses, they allowed these sight glasses (one of which injured Mr. Penn) to be placed on the market when they contained bubbles or seeds which affected the capacity of these sight glasses to hold high pressure without warning their consumers, including plaintiff, that their capacity might be reduced or that the performance of the sight glass might be impaired by the presence of the bubble or seed.”

C.C.Article 2545 provides:

“The seller who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.” (Emphasis ours.)

Now if we applied the common law rule in this instance which allows knowledge of the manufacturer to be imputed to a seller or dealer who is not also the manufacturer of the article when the seller or dealer has labeled the goods as his own or has in some way held the goods out to be manufactured by him, the seller then would know or should have known of the vice of the thing he sells according to the jurisprudence as cited herein. By so applying, which we do, Inferno, by the sale made under the peculiar circumstances of this case, has committed a tortious act and is liable for damages to the buyer as a co-tort-feasor and since they were properly and timely brought to court by this plaintiff, which interrupted the running of prescription herein against other co-tortfeasors, the plea of prescription is held not well founded and is overruled.