Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 72 of 124)
Font size
QR-code for this ebook

gerous to all who should use it for the purpose for which it was made
and sold, and consequent damage to the plaintiff'. It falls directly
within the rule stated by Mr. Justice Gray that when one delivers an
article, which he knows to be dangerous to another person, without
notice of its nature and qualities, he is liable for an injury which may
be reasonably contemplated as likely to result, and which does in fact
result therefrom, to that person or to any other who is not himself in
fault. The natural, probable, and inevitable result of the negligence
portrayed by this complaint in delivering this machine when it was
known to be in a condition so imminently dangerous to the lives and
limbs of those who should undertake to use it for the purpose for
which it was constructed was the death, or loss of one or more of
the limbs, of some of the operators. It is perhaps improbable that
the defendant was possessed of the knowledge of the imminently dan-
gerous character of this threshing machine when it delivered it. and
that upon the trial of the case it will be found to fall under the general
rule which has been announced in an earlier part of this opinion. But
upon the facts alleged in this complaint, the act of delivering it to the
purchaser with a knowledge and a concealment of its dangerous con-
dition was so flagrant a disregard of the rule that one is bound to
avoid any act imminently dangerous to the lives and health of his
fellows that it forms the basis of a good cause of action in favor of
any one who sustained injurv threfrom.

The judgment of the Circuit Court must be reversed, and the
cause must be remanded to the court below for further ^proceedings
not inconsistent with the views expressed in this opinion."



SCHUBERT Z-. CLARK CO.
Supreme Court of Minnesota, 1892. 49 Minnesota 331.
Dickinson, J. The sufficiency of the complaint as showing a
right to recover against the defendant is here for decision. The facts
of the case, as shown by the complaint, may be thus stated :

The plaintiff, a house painter, was in the employ of one Phelps.
He was engaged in the work of painting the interior of a certain
building. His employer. Phelps, as a purchaser, ordered from a re-
tail merchant a new ten-foot stepladder, directing that it be delivered



' See 44 Am. L. Reg. N. S. 349-370.



504 SCHUBERT V. CLARK CO.

to the plaintift" at the place where he was at work. The merch ant,
not having such a ladder in his stock of goods, ordered the defendant
corporation to deliver such a stepladder to the plaintiff for hinise.
The defendant delivered a ladder to the plaintiff pursuant_to that
order. This we construe to have been a purchase by tTie merchant
from the defendant. The defendant was a manufacturer of such
goods, and the ladder so delivered had "theretofore" been manufac-
tured by it, "to be sold for the purpose of being used. * * *"' It
was made of poor, crossgrained, and decayed lumber, and "was so
insufficient in strength as to be dangerous to the life and limb of this
plaintiff and whoever might use the same." It is alleged that the
defendant knew, or ought to have known, such defects and insuffici-
ency. Neither the plaintiff nor his employer nor the merchant from
whom the latter ordered the ladder knew such defects, and it was so
varnished, oiled, and painted that they could not discover them. The
plaintiff', supposing the ladder to have been made of good material,
and to be of sufficient strength, proceeded to use it in the performance
of his work, and while he was standing on it, seven feet above the
floor, it broke without his fault, causing him to fall, and he was there-
by injured.

The complaint is defective in not stating, but leaving it only to
be inferred, that the ladder broke by reason of the alleged defects;
but this fault is not relied upon by the appellant, and we pass it over
to consider the real merits of the case.

Let us consider more particularly wherein the defendant is shown
to have been guilty of a wrong towards the plaintiff, of which the
latter may complain, or what legal duty the defendant owed to the
plaintiff, or generally to any one who, in the ordinary course of
events, might procure the ladder for use.

There was no contract relation between the plaintiff and the de-
fendant, and hence no contract obligation for the violation of which
the plaintiff can recover. Neither the plaintiff nor even his employer
was a party to the contract of sale pursuant to which the ladder was
delivered to the plaintiff. He did not stand in any relation of privity
with the contracting parties, — the retail merchant, who purchased,
and the defendant, who sold the ladder. The contract was not en-
tered into nor executed for his benefit; and, if there was any breach
of the contract, the plaintiff has no right of action merely for that.
If the defendant is liable, it must be upon the ground that the cir-
cumstances under which the ladder was manufactured and delivered
were such that the neglect to disclose the existence of the defect was
a wrong, — a neglect of a duty recognized by law independent of con-
tract.

Accepting the allegations of the complaints as true, we assume
that by reason of the defects complained of the ladder was dangerous
to the life or limb of a person using it in the way in which such
articles are ordinarily used. If there was any legal duty resting on
the defendant for the breach of which the plaintiff can complain it
will be more apparent if the alleged negligence and consequent in-
jury are brought into close proximity. Hence we will for the
present assume that when the ladder was delivered directly to the
plaintiff for his use by the defendant the latter knew the concealed



SCHUBERT V. CLARK CO. , 505

defects, and had reason to apprehend that the use of it by the plain-
tiff, or by any one, would be attended by serious personal injury. It
would constitute an actionable wrong for the defendant to thus
knowingly and unnecessarily do what it had reason to suppose would
result in injury to the plaintiff without the intervention of any fault
or neglect on his part or on the part of any other person. If the
defendant knowingly delivered such an article for the plaintiff's
use, it was his duty to warn him of the danger by disclosing the hid-
den defects; and neglect of that duty would constitute actionable
negligence.^ Every one may be supposed to understand that such
articles are manufactured, sold, and disposed of, with a view to their
being used. They are valuable and salable only because of their sup-
posed fitness for use. One who procures such an article, either
from a manufacturer or from a retail dealer, ordinarily assumes



\lccord: Lczuis v. Terry, in Cal. 39 (1896), a furniture dealer sold to
a boarding house keeper a folding bed. which to the vendor's knowledge had a
concealed defect rendering it dangerous for use and which, when used by a
guest of the boarding house, collapsed and injured her; Wellington v. Downer
Oil Co., 104 Mass. 64 (1870), naptha known to be highly explosive
put on market as illuminating oil ; Elkins, Bly & Co. v. McKean, 79 Pa. 493
(1875), very similar facts, vendor liable if, and only if, he knew the oil sold
to be explosive and unsafe; Skinn v. Rcutter, 135 Mich. 57 (1903^, hogs,
known by vendor to be diseased, infected drove of plaintiff who purchased
them for defendant's vendee; see Marsh v. Webber, 13 IMinn. 109 (1868) and
Jeffrey v. Bigelozv, 13 Wend. 518 (N. Y., 1835), where it had been held that
such a vendor was liable to his own vendee for infection of latter's stock;
Clement V. Crosby & Co.. 148 Mich. 293 (1907), stove polish, known to be
inflammable; Weiser v. Hohntan, 33 Wash. S? (1903). champagne cider
alleged to be known by vendor to be a dangerous explosive; McCaffrey v.
Mossberg etc. Mfg. Co., 23 R. I. 381 (1901) ; Slattery v. Colgate, 55 Atl. 639
(R. I., 1903). semble.

In Knelling v. Lean Mfg. Co., 183 N. Y. 78 (1905). the maker and vendor
of a heavy roller, who had actively concealed by plugging, painting and var-
nishing certain knot holes which dangerously weakened the tongue thereof,
was held liable to a farmer who had purchased it from a retailer who had
himself bought it of another intermediate dealer; accord: Woodzcard v. Miller,
119 Ga. 618 (1903), buggy, with defects painted and varnished over, sold to
city for use of its employees. In Carter v. Harden, 78 Me. 528 (1886) it is
held that one who sells a horse, falsely representing it as kind and gentle, is
not liable to the purchaser's wife for injuries received by her while driving
it, it not appearing that he knew when it was sold that it was bought by the
purchaser for his wife's use, cf. Langridge v. Levy, 2 ]\1. & W. 519 (1837).

In State, to use of Hartlove v. Fox, 79 Md. 514 (1894') it was held that
a vendor fraudulently selling, as sound, a horse known by him to be affected
with glanders was not liable for the death of the purchaser's stableman in-
fected while caring for the horse, since it does not appear that a glandered
horse is imminently dangerous to human life since there is no great or im-
minent danger of a human being catching glanders from a horse.

Where, however, the sale of a particular article is prohibited as dangerous,
it is enough that the vendor knows that he is selling such an article :_ it is
immaterial that he believes that the violation is so slight that the article is not
in fact dangerous, Waters Pierce Co. v. Deselms. 29 S. C. R. 270 (U. S.
1909), 5% of gasolene by error mixed with oil, local agent instructed to sell
it as coal oil as so smalf an amount of gasolene would not affect its burning
qualities; Stozvell v. Standard Oil Co., 139 ^I'ch. 18 (1905^ and in Hourigan
v. Xozvell. no Mass. 470 ('1872') it is held that the law throws on the
vendor the burden of keeping himself, at his peril, within the terms of the
statute and that it is no defense to prove that he was not aware that the oil
he sold was below test or even that it had been certified as approved by an
auhorized insoector.



EX



506 . SCHUBERT V. CLARK CO.

without inquir)-, and without any express warranty, that it is what
it appears to be, — a thing intended for actual use; and that it has
not been so neghgently manufactured that by reason of concealed
defects its use will be attended with danger of serious injury. And
this must be supposed to be understood by the person who disposes
of it; and if, knowing the existence of such defects, he neglects to
disclose them, so that the other party may be warned of his danger,
such neglect amounts to bad faith.- Under such circumstances,
silence partakes of the nature of an assurance that the thing has not
any such known but concealed dangerous defect. Silence has the
effect and the quality of deceit.

We have heretofore assumed that the defendant knew the de-
fects when it delivered the ladder to the plaintiff. But our statement
of the case shows that such was not the fact, or at least it does not
appear from the complaint that it was so. It seems from the com-
plaint that at some time prior to the ordering and delivery of the
article the defendant in the course of its business of manufacturing
such goods had negligently constructed this ladder for sale, but not
(as we will assume in favor of the defendant) with any specific in-
tention or anticipation as to who might purchase or use it ; but only
intending that it should go into its stock of goods of that kind, to
be sold in the usual course of business, and thus at length come to
the hands of some one who would purchase it for actual use. The
defendant is to be deemed to have known the fact alleged, — that the
dangerous defects w^ere concealed by the application of oil, paint,
and varnish, — although we do not understand that this was applied
for the purpose of concealing such defects. It would seem that after
that was done the defendant could not have distinguished this ladder
from any other of its manufactured goods of the like kind. If, then,
the defendant did not know, and could not have discovered, at the
time of delivering this ladder to the plaintiff, that it was defective,
there could be no wrong in not then disclosing the existence of de-
fects in this particular article, which were neither known nor dis-
coverable; and the question of the defendant's liability reaches back
to the time of manufacturing and putting into its stock of goods
for sale an article then known to be dangerously defective, the de-
fects being concealed, and not likely to be discovered, either by any
intermediate purchaser standing between the defendant and the per-

"This duty is not confined to vendors nor does it arise out of any implied
term or warranty of fitness in the contract of sale, Clarke v. Army & Navy
Stores, L. R. 1903, i K. B. 155, p. 164. "It is well settled", says Gray, J., in
Wellington v. Downer Oil Co., supra n. i, "that a man who delivers an article,
which he knows to be dangerous or noxious, to another person, without notice
of its nature and its qualities, is liable for any injury which may reasonably
be contemplated as likely to result, and which does in fact result, therefrom,
to that person or any other, who is not himself in fault. Thus a person who
delivers a carboy, which he knows to contain nitric acid, to a carrier, without
informing him of the nature of its contents, is liable for an injury occasioned
by the leaking out of the acid upon another carrier, to whom it is delivered
by the first, in the ordinary course of business, to be carried to its destination ;
Farrant v. Barnes, 11 C. B. (N. S.) 533, p. 67." Nor can the shipper complain
that the carrier was negligent in treating the package as though it were what
it appeared to be, ordinary innocuous freight, Barney v. Burstenbinder, 7
Lans. 210 (N. Y., 1872), explosion caused by opening an unlabeled parcel con-
taining nitro-glycerine.



SCHUBERT r. CLARK CO. 507

son who might procure the ladder for use, or by the latter person.'
We shall assume, then, that there was no wrongful conduct when the
ladder was delivered, but only, if at all, wdien it was manufactured,
and put in the defendant's general stock for sale. In this view of
the case, the wrongful conduct of the defendant and the injury re-
sulting therefrom would be somewhat more widely separated in
time and in the order of events than in the case as we have here-
tofore assumed it to have been ; but it would not change their real
relation as cause and effect, nor so qualify that relation that the law
would regard the injury as being so remote from the wrong that for
that reason responsibility should cease.

When the defendant manufactured and put the dangerously
faulty article in its stock for sale, it is to be deemed to have antici-
pated that, in the ordinary course of events, it would come to the
hands of a purchaser, either directly from the defendant or from
some intermediate dealer, for actual use, and with the consequences
which actually were suffered. It must have been deemed probable
that any intervening dealer would not discover the defect, and that
nothing would be likely to occur to avert the danger to which the
person who might use the ladder would be subjected by the defend-
ant's negligence. Hence it would be difficult to distinguish such a
case in principle from one where the transaction is directly between
the wrong-doer, then knowing the danger, and the party who is in-
jured. If any distinction is to be made it must rest upon the grounds
of expediency, the arbitrary fixing of a limit to the liability of the
w^rong-doer. But we consider that in principle the defendant should
be held to responsibility for an injury resulting proximately, and
w^ithout any intervening wrongful agency,* from its confessedly
negligent act. which was such as to expose another to great bodily
harm ; and that no reason of policy forbids this. The authorities
which have been cited we deem to be sufficient to justify this con-
clusion, although it is to be admitted that there are others tending
to an opposite result.

Order affirmed.*



* It is not necessary that the vendor know that the particular article sold
is actually dangerous. It is enough that he knows it to be "potentially dan-
j^eroJis". as forming p art o f a lot or consignment, some of which Have Been
to the knowledge of the vendor, defective, Clarke v. Army & Navy Stores,
supra note 2; see Weiscr v. Holzman, supra note i; so if the vendor or
anj' one in charge of his business knows of any fact which renders it probable
that the article may be unusually dangerous, he is bound to see that notice
thereof is given to the vendee, Clarke v. Ar)iiy & Navy Stores, supra; so if
the vendor know that a dangerous defect has existed, he can not excuse a
failure to disclose it by showing an ineffectual attempt to remedy or remove
it, even though he honestly believe he has succeeded, French v. Fining, 102
Mass. 132 (1869).

*As to whether knowledge by or notice to an intermediate vendee, who
buys for the evident purpose of resale, of the true condition of the article
will relieve from liability a vendor who sells it with knowledge that it is
dangerously defective and that it appears safe — see Clement v. Crosby & Co.,
supra note i. and Waters Pierce Co. v. Desclms. supra note i — where it is
held that it doe.« not : contra (semble') Lezvis v. Terry, n. i. supra. Where
the article though defective is nonetheless safe for some, if not aJl of the
purposes, for which if perfect it is fitted, knowledge by or notice to the first
vendee relieves the vendor from further liability — see Loop v. Litchfield, pat
P- 333 and notes thereto, and Miner, Read & Garrette v. McNamara, 72 Atl.
138 (Conn., 1909).

'See Torgcscn v. Schultz, 192 X. Y. 156 (1908).



508 LOOP V. LITCHFIELD



LOOP V. LITCHFIELD.
Court of Appeals of New York, 1870. 42 LV. Y. 351.

Hunt, J. A piece of machinery already made and on hand,
having defects which weaken it, is sold by the manufacturer to
one who buys it for his own use. The defects are pointed out to
the purchaser and are fully understood by him. This piece of ma-
chinery is used by the buyer for five years, and is then taken into
the possession of a neighbor, who uses it for his own purposes.
While so in use, it flies apart by reason of its original defects, and
the person using it is killed. Is the seller, upon this state of facts,
liable to the representatives of the deceased party? I omit at this
stage of the inquiry the elements, that the deceased had no authority
to use the machine ; that he knew of the defects and that he did
not exercise proper care in the management of the machine. Under
the circumstances I have stated, does a liability exist, supposing that
the use was careful, and that it was by permission of the owner of
the machine?

To maintain this liability, the appellants rely upon the case of
Thomas v. Winchester (6 N. Y., 2 Seld., 397). * * =;=

The appellants recognize the principle of this decision, and seek
to bring their case within it, by asserting that the fly wheel in ques-
tion was a dangerous instrument. Poison is a dangerous subject.
Gunpowder is the same. A torpedo is a dangerous instrument, as
is a spring gun, a loaded rifle or the like. They are instruments
and articles in their nature calculated to do injury to mankind, and
generally intended to accomplish that purpose. They are essentially,
and in their elements, instruments of danger. Not so, however, an
iron wheel, a few feet in diameter and a few inches in thickness,
although one part may be weaker than another. If the article is
abused by too long use, or by applying too much weight or speed, an
injury may occur, as it may from an ordinary carriage wheel, a
wagon axle, or the common chair in which we sit. There is scarcely
an object in art or nature, from wdiich an injury may not occur
under such circumstances. Yet they are not in their nature sources
of dangef, nor can they, with any regard to the accurate use of
language, be called dangerous instruments. That an injury actually
occurred by the breaking of a carriage axle, the failure of the car-
riage body, the falling to pieces of a chair or sofa, or the bursting
of a fly wheel, does not in the least alter its character.

It is suggested that it is no more dangerous or illegal to label
a deadly poison as a harmless medicine than to conceal a defect in
a machine and paint it over so that it will appear sound. Waiving
the point that there was no concealment, but the defect was fully
explained to the purchaser, I answer, that the decision in Thomas v.
Winchester was based upon the idea that the negligent sale of poisons
is both at common law and by statute an indictable offence.^ If the



^ In Losee v. Clute, 51 N. Y. 494 (1873), decided largely on the authority
of Loop v. Litchfield, it was held that the maker of a defectively constructed
boiler was not liable for its explosion while being used by his vendee, the



LOOP V. LITCHFIELD 509

act in that case had been done by the defendant instead of his agent,
and the death of Mrs. Thomas had ensued, the defendant would
have been guilty of manslaughter, as held by the court. The injury
in that case was a natural result of the act. Jt was just what was
to have been expected from putting falsely labeled poisons in the
market, to be used by whoever should need the true articles. It was
in its nature an act imminently dangerous to the lives of others. Xot
so here. The bursting of the wheel and the injury to humanjiie.
was not the natural result or the expected consequence of the man-
ufacture and sale of the wheel. Every use of the counterfeit medi^
cines would be necessarily injurious, while this wheel was in fact
used with safety for live years. * * *

Upon the facts as stated, assuming that the deceased had no
knowledge of the defects complained of, and assuming that he was
in the rightful and lawful use of the machine, I am of the opinion
that the verdict cannot be sustained. The facts constitute no cause
of action.-



purchaser being held alone bound to see that it was fit for the use to which he
put it, but there was evidence to show that while the purchaser did not know
the e.xact condition of the boiler, he knew it was defective and had ordered
the pressure to be kept low in the hope of preventing any explosion. In
Wyliie v. Palmer, 137 N. Y. 248 (1893) these two cases are cited to support
the proposition that makers of dangerous articles (in that case fireworks)
"could not be made liable for an injury resulting from the negligent or im-
proper use of the article by the purchaser or by third persons" — and see
Davidson v. Nichols, 93 Mass. 514 (1866), sulphide of antimony sold as black
oxide of manganese, exploding when mixed with chlorate of potassia by
purchaser from maker's vendee", but cf., Waters Pierce Co. v. Deselms, 29 S.
C. Rep. 271 (U. S., 1909), where it was held that the vendor of petroleum,
having knowledge of the local custom of using it to start fires, was liable
for a conflagration caused by the use, for this purpose, of petroleum sold by
it, with which gasolene had, to its knowledge, been mixed.

' .A. manufacturer making an article to a purchaser's order or a contractor
constructing a building or other structure according to his employer's plans
and specifications is not liable, after the article is delivered or the structure
turned over, for injuries arising not from bad workmanship but from the un-
fitness of the article or structure as planned for the purposes to which the
purchaser or employer puts it thereafter — Pearson v. Zahlc, 78 Ky. 170 (1879),
contractor who had graded a street as required by his contract with the city
held not liable for flooding of adjacent land, after the street was turned over
to the city, because of failure to provide necessary outlets for surface water;
Willis V. White and Co., 63 S. E. 942 ("N. C, 1909^ contractor for railroad em-
bankment not liable to adiacent owners under similar circumstances; Marvin
V. Ward, 46 N. J. L. 19 (1884). builder of a temporary bridge built in accordance
with the plans and specifications of county officers and accepted bv them,
held not liable for its collapse when devoted by them to the carnage of
heavier traffic than such a bridge was fitted to stand; and in Miner. Read &
Garrctte v. McXamara. 72 .Atl. 138 (Conn., T900) it was held that acceptance
by the owner of a building, which to his knowledge had been constructed of
inferior material and in violation of the requirements of the building com-
missioners, relieved the builder of liability to a tenant of the owner.