Francis H. (Francis Hermann) Bohlen.

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prietor, who may have contracted with a master to carry his servant,
if he is guilty of neglect, and the servant sustains personal damage,
is liable to him; for it is a misfeasance towards him, if, after taking
him as a passenger, the proprietor or his servant drives without due
care, as it is a misfeasance towards any one travelling on the road.
So, if a mason contract to erect a bridge or other work in a public
road, which he constructs, but not according to the contract, and the
defects of which are a nuisance to the highway, he may be responsible
for it to a third person, who is injured by the defective construction,*
and he cannot be saved from the consequences of his illegal act, in
committing the nuisance on the highway, by showing that he was also
guilty of a breach of contract, and responsible for it.^ And it may be

Carnegie Co., 45 Pittsb. L. J., 318 (1896), it was held that the defendant,
who had agreed to furnish its subcontractor with iron made in a certain man-
ner, "should know that the latter would naturally put his men to work on
the assumption that the defendant had manufactured the iron with as much
care with respect to strength, at least, as the contract called for," per
McClung, J.; but see Osten v. Morris, Tasker Co., 17 Phila., 219 (1885),
the contract by which an iron cylinder was sold for use as a gas receiver,
was held no evidence that such use was one contemplated by the maker,
cf. George v. Skivington. post

As to the vendees right, as between himself and his vendor, to rely on
the latter's warranty — and to put the article to immediate use without in-
spection, see Mowbray v. Merryzveather, L. R. 1895, 2 Q. B. 640, and Boston
Woven Hose Co. v. Kendall, 178 Mass. 232 (1901). "The very purpose of
the warranty was that the boiler should be used in the (vendee's) works
with reliance upon the (vendor's) judgment in a matter as to which the
(vendors) were experts and the (vendee) presumably was not," Holmes,
C. J., p. 237.

' It is highly doubtful whether a surgeon was bound to more than the
exercise of good faith, unless he had undertaken the cure for a reward.
See Y. B. 19 Henry, VI, pi. 5, ante p. 141 and n. i thereto, but it was im-
material by whom it was paid. See note i to Marshall v. York, etc Co., ante
p. 146.

* Contra: Mayor of Albany v. Cunliff, 2 N. Y. 165 (1849), per Bron-
son, J., p. 174, and Strong, J., p. 180, senible, and see Daughcrty v. Herzog,
145 Ind. 255 (1896), where a contractor was held to be releasecl, by turning
over the premises to his employer, from all liability for so badly altering
a building that its front wall fell into the street — and Congregation v. Smith,
163 Pa. 561 (1894), independent contractor, building a sewer so badly that
it burst and flooded adjacent property, not liable after the city had with
knowledge or means of knowledge of the condition of the sewer accepted if
and put it into use.

°This applies wherever the plaintiff is injured by any act of the de-
fendant which, while done under a contract with a third party, is intended
to injure, or is such as to threaten probable injury to, the plaintiff's person or
property — which in a word constitutes a breach of tlie duty which every man
owes to every other, "not to injure (that other's person or properly) by any



LONGMEID V. IIOLLIDAY 497

the same when any one delivers to another without notice an instru-
ment in its nature dangerous, or under particular circumstances, as
a loaded gun which he himself loaded, and that other person to whom
it is delivered is injured thereby, or if he places it in a situation easily
accessible to a third person, who sustains damage from it. A very
strong case to that effect is Dixon v. Bell, 5 M. & Selw. 198. But it
would be going much too far to say, that so much care is required in
the ordinary intercourse of life between one individual and another,
that, if a machine not in its nature dangerous, — a carriage for in-
stance, — l)ut wliich might become so by a latent defect entirely un-
known, although discoverable by the exercise of ordinary care, should
be lent or given by one person, even by the person who manufactured
it, to another, the former should be answerable to the latter for a
subsequent damage accruing by the use of it. Could it be contended
with justice in the present case, that if the lamp had been lent of
given by the defendant to the plaintiff's wife, and used by her, he
would have been answerable for the personal damage which she
sustained, the defendant not knowing or having any reason to be-
lieve it was not perfectly safe, although liable to the party to whom
he contracted to sell it, upon an implied warranty that it was fit for
use, so far as reasonable care could make it, for the breach of that
contract as to all damage sustained by him?

We are of opinion, therefore, that if there had been in this case
a breach of contract with the plaintiffs, the husband might have sued
for it ; but there being no misfeasance towards the wife independently
of the contract, she cannot sue and join herself with her husband.
Therefore a nonsuit must be entered.

Rule absolute.



wrongful or negligent act". Bickford v. Richards, 154 Mass. 163 (1891), a
stib-contractor for the moving of plaintiff's house held liable for injuries
sustained by it because of the unworkmanlike manner in which he did the
work; Lcchman v. Hooper, 52 N. J. L. 253 (1890), a wall, negligently built
by a sub-contractor, fell upon a servant employed by another sub-contractor ;
Hayn, et al. v. Culliford, L. R. 4 C. P. D. 182 (1879) ante, p. 321; Dalycll
V. Tyrer, E. B. & E. 899 (1858), owner of a tug, hired for a day by ferryman
to carry the latter's passengers, liable for injury to one of them due to care-
less acts of the crew; Smith v. Scicard, 3 Pa. 342 (1846). The distinction
between nonfeasance and active misconduct by one doing work under con-
tract with a third party is lost sight of in Cobb v. Clark Co., 118 Ga. 483
(1903), where it is held that a contractor employed by the plaintiff's neigh-
bors to remove the party wall between their premises was not liable not
only for the loss caused by their contractor's failure to erect a sufficient
temporary wall, but also for injuries to the plaintiff's fixtures, which they
had to remove to do the work, caused by the careless manner in which his
servants handled them in so doing.



498 HUSET V. CASE THRESHING MACHINE CO.

CHAPTER IV.

Liability of Manufacturers of Chattels to Persons Not in
Privity of Contract with Them.



HUSET V. CASE THRESHING MACHINE COMPANY.

Circuit Court of Appeals of the United States, 1903. 120 Fed. 865.

Sanborn, Circuit Judge, delivered the opinion of the court.
Is a manufacturer or vendor of an article or machine which he
knows, when he sells it, to be imminently dangerous, by reason of a
concealed defect therein, to the life and limbs of any one who shall
.use it for the purpose for which it was made and intended, liable to
a stranger to the contract of sale for an injury which he sustains
from the concealed defect while he is lawfully applying the article
or machine to its intended use?

The argument of this question has traversed Uie whole field
in which the liability of contractors, manufacturers,'^and vendors to
strangers to their contracts for negligence in the construction or
sale of their articles has been contested. The decisions which have
been cited are not entirely harmonious, and it is impossible to rec-
oncile all of them with any established rule of law. And yet the
underlying principle of the law of negligence, that it is the duty
oT every one to so act himself and to so use his property as to do
Ino" unnecessary damage to his neighbors, leads us fairly through the
maze. With this fundamental principle in mind, if we contemplate
the familiar rules that every one is liable for the natural and prob-
able efifects of his acts ; that negligenceisj_breadi-o^'a-^ ; that an
injury that is the natural alicl pfobable' consequence of an act of
negligence is actionable, while one that could not have been foreseen
or reasonably anticipated as the probable efifect of such an act is
not~actionable, because the act of negligence in such a case is the
"remote, and not the proximate, cause of the injury; and that, for
"TFiF'same reason, an injury is not actionable which would not have
Hiiulted from an act of negligence except from the interposition of
an ind'ependent cause (Chicago, St. Paul, Minneapolis & Omaha R.
Co. v. Elliott, 55 Fed. 949) — nearly all the decisions upon this sub-
ject range themselves along symmetrical lines, and establish rational
rules of the law of negligence consistent with the basic principles
upon which it rests.

Actions for negligence are for breaches of duty. Actions on
contracts are for breaches of agreements. Hence the limits of lia-
bility for negligence are not the limits of liability for breaches of
contracts, and actions for negligence often accrue where actions
upon contracts do not arise, and vice versa. It is a rational and fair
deduction from the rules to which brief reference has been made
that one who makes or sells a machine, a building, a tool, or an
article of merchandise designed and fitted for a specific use is liable
to a person who, in the natural course of events, uses it for the
purpose for which it was marie or ?old, for an injury which is the



HUSET V. CASli THRESHING MACHINE CO. 499

natural and probable consequence of the negligence of the manu-
facturer or vendor in its construction or sale. But when a contrac-
tor builds a house or bridge, or a manufacturer constructs a car
or a carriage, for the owner thereof, under a special contract with
him, an injury to any other person than the owner for whom the
article is built and to whom it is delivered cannot ordinarily be fore-
seen or reasonably anticii)ated as the probable result of the neg-
ligence in its construction. So, when a manufacturer sells articles
to the wholesale or retail dealers, or to those who are to use them,
injury to third persons is not generally the natural or probable effect
of negligence in their manufacture, because (i) such a result can-
not ordinarily be reasonably anticipated, and because (2) an inde-
pendent cause — the responsible human agency of the purchaser —
without which the injury to the third person would not occur, inter-
venes, and, as Wharton says, "insulates" the negligence of the man-
ufacturer from the injury to the third person. Wharton on Law
of Negligence (2d Ed.) § 134. For the reason that in the cases of
the character which have been mentioned the natural and probable
effect of the negligence of the contractor or manufacturer will gen-
erally be limited to the party for whom the article is constructed,
or to whom it is sold, and, perhaps more than all this, for the reason
that a wise and conservative public policy has impressed the courts
with the view^ that there must be a fixed and definite limitation to
the liability of manufacturers and vendors for negligence in the
construction and sale of complicated machines and structures which
are to be operated or used by the intelligent and the ignorant, the
skillful and the incompetent, the watchful and the careless, parties
that cannot be known to the manufacturers or vendors, and who
use the articles all over the country hundreds of miles distant from
the place of their manufacture or original sale, a general rule has been
adopted and has become established by repeated decisions of the
courts of England and of this country that in these cases the liability
of the contractor or manufacturer for negligence in the construction
or sale of the articles which he makes or vends is limited to the
persons to whom he is liable under his contracts of construction or
sale. The limits of the liability for negligence and for breaches of ^
contract in cases of this character are held to be identical. The



general rule is that a contractor, manufacturer, or vendor is iiot_
liab ltj^ to thiixL parties who have no contractual relations with him__
fornegligence irPtBe'construction, manufacture, or sale of the arti-^
cles he handles.^



"■"Winterbottom v. Wright, 10 M. & W. 109: Longmeid v. Holliday. 6
Exch. 764, 765; Blackmorc v. Ry. Co., 8 El. & Bl. 1035; Collis v. Selden. L.
R. 3 C. P. 495, 497: Rank v. Ward. 100 U. S. 195, 204; Bragdon v. Perkins-
Campbell Co.] 87 Fed. 109; Goodlandcr v. Standard Oil Co., 63 Fed. 400,
406; Loop V. Litchfield. 42 N. Y. 351, 359; Losee v. Clute, 51 N. Y. 494; Cur-
tain V. Somerset, 140 Pa. 70: Heizer v. Kingsland & Douglass Mfg. Co., no
Mo. 605, 615, 617; Dougherty v. Herzog, 145 Ind. 255; Burke v. DeCastro, 11
Hun 3S4; Szcan v. Jackson, 5; Hun 194: Barrett v. Mfg. Co., 31 N. Y. Super.
Ct. 545; Carter v. Harden, 78 Me. 528; McCaffrey v. Mfg. Co. (R. T.) 50
Atl. 651 ; Marz'in v. Ward, 46 N. J. Law 19; Burdick v. Cheadle, 26 Ohio St.



500 HUSET V. CASE THRESHING MACHINE CO.

In these cases third parties, without any fault on their part,
were injured by the negHgence of the manufacturer, vendor, or fur-
nisher of the fohowing articles, while the parties thus injured were
innocently using them for the purposes for which they were made
or furnished, and the courts held that there could be no recovery,
because the makers, vendors, or furnishers owed no duty to stran-
gers to their contracts of construction, sale, or furnishing.-

In the leading case of IVinterbottoin v. Wright this rule is
placed upon the ground of public policy, upon the ground that there
would be no end of litigation if contractors and manufacturers were
to be held liable to third persons for every act of negligence in the
construction of the articles or machines they make after the parties
to whom they have sold them have received and accepted them. In
that case the defendant had made a contract with the Postmaster
General to provide and keep in repair the stagecoach used to convey
the mail from Hartford to Holyhead. The coach broke down, over-
turned, and injured the driver, who sued the contractor for injury
resulting from his negligence. Lord Abinger, C. B., said:

"There is no privity of contract between these parties ; and, if
the plantiff can sue, every passenger, or even any person passing



^3; Davidson v. Nichols, 11 Allen 514; /. /. Case Plow Works v. Niles &
Scott Co. (Wis.) 63 N. W. 1013."

See also Fish v. Kirlin-Gray Elec. Co., 18 S. Dak. 122 (1904), semble,
and S lattery v. Colgate, 55 Atl. 639 (R. I., 1903).

""A stagecoach, Wintcrbottom v. Wright, 10 M. & W. 109; a leaky lamp,
Longmeid v. Holliday, 6 Exch. 764, 765 ; a defective chain furnished one to
lead stone, Blakemorc v. Ry. Co., 8 El. & Bl. 1035; an improperly hung chan-
delier, Collis V. Seidell, L. R. 3 C. P. 495, 497 ; an attorney's certificate of title,
Bank V. Ward, 100 U. S. 195, 204; a defective valve in an oil car, Goodlander
V. Standard Oil Co., 63 Fed. 401, 406; a porch on a hotel, Curtain v. Somerset,
140 Pa. 70; a defective side saddle, Bragdon v. Perkins-Campbell Co., 87 Fed.
109; a defective rim in a balance wheel, Loop v. Litchfield, 42 N. Y. 351, 359;
a defective boiler, Losee v. Clute. 51 N. Y. 494; a defective cylinder in a
threshing machine, Heizer v. Kingsland & Douglass Mfg.. no Mo. 605, 615;
a defective wall which fell on a pedestrian, Dougherty v. Herzog, 145 Ind. 255;
a defective rope on a derrick, Burke v. Refining Co., 11 Hun 354; a defective
shelf for a workman to stand upon in placing ice in a box, Swan v. Jackson,
55 Hun 194; a defective hoisting rope of an elevator, Barrett v. Mfg. Co., 31
N. Y. Super. Ct. 545; a runaway horse, Carter v. Harden, 78 Me. 528; a
defective hook holding a weight in a drop press, McCaffrey v. Mfg. Co. (R. I.
50 Atl. 651; a defective bridge, Marvin Safe Co. v. Ward, 46 N. J. Law 19;
shelves in a dry goods store, whose fall injured a customer, Bur dick y.
Cheadle, 26 Ohio St. 393 ; a staging erected by a contractor for the use of his
employes, McGuire v. McGee CPa.) 13 Atl. 551 ; defective wheels, /. /. Case
Plow Works v. Niles & Scott Co. (Wis.) 63 N. W. 10T3."

It may be noted that in Blakemore v. Ry. the plaintiff was not allowed
to recover because the defendant, who had loaned to a third party a crane
which he knew was defective, had no reason to expect the plaintiff to use it;
in Carter v. Harden, a vendor who had sold a horse, falsely representing it as
sound, was held not liable for injury to vendee's wife caused by its running
away while she was driving it; in Marvin v. Ward, the injury resulted from a
bridge, which the defendant had built according to the precise terms of
his contract, being put to a use for which, as planned, it was unfit ; in Maguire
v. Magee. the plaintiff without invitation, or even permission, used a tem-
porary scaffolding put up by defendant's workmen for their own use, and
that Case Co. v. Niles & Scott was a suit by the vendee against the vendor who
was also the maker.



HUSET V. CASE THRESHING MACHINE CO. 50I^

along the road, who was injured by the upsetting of the coach,
might bring a similar action. Unless we confine the operation of
such contracts as this to the parties who entered into them, the most
absurd and outrageous consecjuences, to which I can see no limit,
would ensue."

Baron Ai.derson said :

"I am of the same opinion. The contract in this case was made
with the Postmaster General alone; and the case is just the same as
if he had come to the defendant and ordered a carriage, and handed
it at once over to Atkinson. If we were to hold that the plaintiff
could sue in such a case, there is no point at which such actions
would stop. The only safe nde is to confine the right to recover
to those who enter into the contract. If we go one step beyond that,
there is no reason why we should not go fifty."

The views expressed by the judges in this case have prevailed
in England and in the United States, with the exception of two
decisions which are in conflict with the leading case and with all the
decisions to which reference has been made. Those cases are Devlin
V. Smith, 89 N. Y. 470, in which Smith, a painter, employed Steven-
son, a contractor, to build a scaflfold 90 feet in height, for the express
purpose of enabling the painter's workmen to stand upon it to paint
the interior of the dome of a building, and the Court of Appeals of
New York held that Stevenson was liable to a workman of Smith,
the painter, who was injured by a fall, caused by the negligence of
Stevenson in the construction of the scaftold upon which he was
working; and Schubert v. /. R. Clark Co., 49 :\Iinn. 331, in which
a painter purchased of a manufacturer a stepladdcr, and one of the
painter's enployes, who was injured by the breaking of a step caused
by the negligence of the manufacturer, was permitted to recover
of the latter for the injuries he had sustained.^

It is, perhaps, more remarkable that the current of decisions
throughout all the courts of England and the United States should
be so uniform and conclusive in support of this nde. and that there
should, in the multitude of opinions, be but one or two in conflict with
it, than it is that such sporadic cases should be found. They are
insufficient in themselves, or in the reasoning they contain, to over-
throw or shake the established rule which prevails throughout the
English speaking nations.

But while this general rule is both established and settled, there
are, as is usually the case, exceptions to it as well defined and settled
as the nde itself. There are three exceptions to this rule.

The first is that an act of negligence of a manufacturer or vendor
which is eminentlv dangerous to the life or health of mankind, and



' "The decision in Dn'Iiu v. Smith may perhaps, be sustained on the ground
that the workmen of Smith were the real parties in interest in the contract,
since Stevenson was employed and expressly agreed to construct the scaffold
for their use. But the case of Schubert v. J. R. Clarice Co. is in direct con-
flict with the side saddle case. Bragdon v. Pcrkbis-CampheU Co., Sj Fed. 109:
the porch case. Curtain v. Somerset. 140 Pa. 70: the defective cylinder case.
Heizcr v. Kingsland & Douglass Mfg. Co.. no Mo. 617; the defective hook
case, McCaffrey v. Mfg. Co., 22, R. I. 381 ; and with the general rule upon
which all these cases stand."



502 HUSET V. CASE THRESHING MACHINE CO.

which is committed in the preparation or sale of an article intended
to preserve, destroy, or attect human life, is actionable by third parties
who suffer from the negligence/ The leading case upon this subject
is Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A dealer in
drugs sold to a druggist a jar of belladona, a deadly poison, and la-
beled it "Extract of Dandelion". The druggist filled a prescription
of extract of dandelion, prepared by a physician for his patient. The
patient took the prescription thus filled, and recovered of the whole-
sale dealer for the injuries she sustained. In Norton v. Sezvall, 106
Mass. 143, 8 Am. Rep. 298, a recovery was had by a third party for
the sale of laudanum as rhubarb ; in Bishop v. Weber, for the fur-
nishing of poisonous food for wholesome food ; in Peters v. Johnston,
for the sale of saltpetre for epsom salts ; and in Dixon v. Bell, for
placing a loaded gun in the hands of a child. In all these cases of
sale the natural and probable result of the act of negligence — nay, the
inevitable result of it — was not an injury to the party to whom the
sales were made, but to those who, after purchasers had disposed of
the articles, should consume them. Hence these cases stand upon
two well-established principles of law : ( i ) That every one is bound to
avoid acts or omissions imminently dangerous to the lives of others,
and (2) that an injury which is the natural and probable result of an
act of negligence is actionable. It was the natural and probable result
of the negligence in these cases that the vendees would not suffer,
but that those who subsequently purchased the deleterious articles
would sustain the injuries resulting from the negligence of the manu-
facturers or dealers who furnished them.

The second exception is that an owner's act of negligence which
causes injury to one who is invited by him to use his defective ap-
pliance upon the owner's premises may form the basis of an action
against the ov.^ner.^

The third exception to the rule is that one who sells or delivers
an article which he knows to be imminently dangerous to life or limb
to another without notice of its qualities is liable to any person who
suffers an injury therefrom which might have been reasonably antici-
pated, whether there were any contractual relations between the par-
ties or not."

Turning now to the case in hand, it is no longer difficult to dispose
of it. The allegations of the complaint are that the defendant pre-
pared a covering for the cylinder of the threshing machine, which was
customarily and necessarily used by those who operated it to walk
upon, and which was so incapable of sustaining the least weight that
it would bend and collapse whenever any one stepped upon it ; that



* "Dixon V. Bell, 5 Maule & Sel. 198; Thomas v. Winchester, 6 N. Y. 397;
Norton v. Sezvall, 106 Mass. 143 ; Elkins v. McKean, 79 Pa. 493, 502 ; Bishop v.
Weber, 139 Mass. 411; Peters v. Johnson (W. Va.) 41 S. E. 190, 191."

^ "Coitghfry v. Globe Woolen Co., 56 N. Y. 124; Bright v. Barnett & Rec-
ord Co. (Wis.) 60 N. W. 418, 420; Heaven v. Pender, L. R. 11 Q. B. Div. 503;
Roddy V. Railway Co., 104 Mo. 234, 241."

'"Langridge v. Levy, 2 M. & W. 519; Wellington v. Oil Co., 104 Mass. 64
67; Lezi'is V. Terry (Cal.) 43 Pac. 398."



SCHUBERT V. CLARK CO. 503

it concealed this defective and dangerous condition of the threshing
rig so that it could ncjt be readily discovered by persons engaged in
operating or working upon it ; that it knew that the machine was in
this imminently dangerous condition when it shipped and supplied
it to the employer of the plaintiff ; and that the plaintiff has sustained
serious injury through this defect in its construction. The case falls
fairly within the third exception. It portrays a negligence imminently
dangerous to the lives and limbs of those who should use the machine,
a machine imminently dangerous to the lives and limbs of all who
should undertake to operate it. a concealment of this dangerous con-
dition, a knowledge of the defendant when it was shipped and sup-
plied to the employer of the plaintiff" that the rig was imminently dan-