Francis H. (Francis Hermann) Bohlen.

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superintended the catering, and furnished the waiters who supplied
the food eaten by each person ; that the plantiff, having a ticket
therefor bought of and paid for to the defendant, ate of the food
furnished by the defendant, and given to the plaintiff by the defend-
ant's waiters, believing that the same was wholesome and good
and safe to be eaten, and had been properly prepared by the defend-
ant ; and that the food was not good and wholesome and properly
prepared, but was improperly and negligently prepared, and was
unwholesome, poisonous, dangerous, and unfit to be eaten, and, by
reason thereof, the plaintiff was poisoned and injured.^

The Superior Court sustained the demurrer, and ordered judg-
ment for the defendant ; and the plaintiff appealed to this court.

C. Allen, J. If one who holds himself out to the public as a
caterer, skilled in providing and preparing food for entertainments,
is employed as such, by those who arrange for an entertainment, to
furnish food and drink for all who may attend it, and if he under-
takes to perform the service accordingly, he stands in such a relation
of duty towards a person who lawfully attends the entertainment,
and partakes of the food furnished by him, as to be liable to an
action of tort for negligence in furnishing unwholesome food,
whereby such person is injured. This liability does not rest so much
upon an implied contract, as upon a violated or neglected duty volun-
tarily assumed. Indeed, where the guests are entertained without
pay. it would be hard to establish an implied contract with each indi-
vidual. The duty, however, arises from the relation of the caterer
to the guests. The latter have a right to assume that he will furnish
for their consumption provisions which are not unwholesome and
injurious through any neglect on his part. The furnishing of pro-



^ Accord: Blood Balm Co. v. Cooper, ^2> Ga. 457 (18S9). a manufacturer
of a patent medicine, made according to a secret formula and put upon the
market to be taken in doses prescribed in the label upon the bottle, is bound
to take the utmost care that the dose so prescribed does not contain r.ny d.ug
..1 such quantitv as to Lie pciisouuus or injurious: Duxus v. ot"«tiuc/jr ou/-'
Co., 146 .Mo. App. 246 (1910).

^ The statement of facts is as appears in the head note.



5l8 BISHOP V. WEBER

visions which endanger human life or health stands clearly upon
the same ground as the administering of improper medicines, from
which a liability springs irrespective of any question of privity of
contract between the parties. Norton v. Sezvall, io6 Alass. 143.
Longmcid v. HoUiday, 6 Exch. 761. Pippin v. Sheppard, 11 Price,
400.

The plaintiff's action was originally entitled "in an action of
tort.'" The plaintiff obtained leave to amend by adding the words
"or contract, the plaintiff being doubtful to which class of actions
this action belongs." This amendment was unnecessary, and may
be disregarded, all the amended counts upon which the plaintiff relies
being in tort. It is not necessary to sustain the demurrer on account
of this lack of literal precision in entitling the action.

The defendant relies on several other extremely fine points of
objection, but, without dwelling on them in detail, it may be said,
in general terms, that the several counts sufficiently set forth the
facts from which the duty of the defendant towards the plaintiff
sprung, and it is not necessary to state formally and in terms that
the defendant occupied such a relation towards the plaintiff that
the law cast upon him the duty ; they also sufficiently aver that the
defendant neglected that duty, and that the plaintiff was injured by
reason thereof. It is not necessary to aver that the defendant kne\v7
of the injurious quality of the food. It is sufficient if it appears
that he ought to have known of it, and was negligent in furnishing
unwholesome food, by reason whereof the plaintiff was injured. T

Judgment reversed.- '



'Accord: Craft v. Parker, Webb & Co., 96 Mich. 245 (1893). the plain-
tiff who was poisoned by a slice of bacon bought by his brother, a boarder
in his house, from the defendants, wholesale and retail meat dealers, held
entitled to recover if "the defendants knew or by proper care could have
known its condition." So in Watson v. Augusta Brewing Co., 124 Ga. 121
(1905), it was held that a bottler of soda water must take care that the bot-
tles when filled are clean and free from dangerous foreign substances, such
as pieces of glass. In Tomlinson v. Armour & Co., 75 N. J. L. 748 (1908), it
was held that a declaration was good which alleged that "the defendants
were engaged in the business of canning and vending ham, but that in disre-
gard of this duty they had negligently put in a certain can diseased ham"
and sold it to a retail dealer, "of whom the plaintiff purchased it for food,
and upon eating a piece of the ham was rendered sick of ptomaine poison."
In Salmon \. Libby, McNeil & Libby, 219 111. 421 (1905), defendants, who
made a certain brand of mince meat and put it on the market through a
wholesale dealer, were held liable for the negligent preparation of a parcel
of it, purchased from a retail grocer by the plaintiff, made into a pie and
eaten bv a member of the purchaser's family; contra: Nelson v. Armour
Packing Co., 76 Ark. 352 (1905).

A dealer in provisions who neither prepares nor selects them himself
but merely offers for sale to be selected by the buyer, provisions purchased
by him from others, is not bound to exercise care to procure fit articles for
his customer's inspection and approval, Farrell v. Manhattan Market Co.,
198 .Mass. 271 (1908), p. 285.

As to the duty of a bottler of effervescent drinks, see Guinea v. Campbell.
22 Quebec Off. R., S. C. 257 ( 1902 ) , held bound to take every care to provide
bottles stout enough to prevent explosions, ace., Torgesen v. ScJixiltz, 19 J
N. Y. 156 (1908), Glaser v. Seitz. 1\ N. Y. S. 942 (1901); but the buistir.^-
of a bottle is no evidence of a lack of such care, Guinea v. CavipbeV, 'i
Quebec Off. R., S. C. 257 (1902) ; Glaser v. Seitz, 71 N. Y. S. 942 (1901) ,
O'Neill V. James, 138 Mich. 567 (1904).



DEVLIN v. SMITH 519



DEVLIN v. SMITH.
Court of Appeals of New York, 1882. 89 N. Y. 470.

Action for negligence causing the death of Hugh Devlin, plain-
tiflf's intestate.

Defendant Smith contracted with the supervisors of the county
of Kings to paint the inside of the dome of the court-house, in that
county. Smith was not a scaffold-builder, and emjjloyed defendant
Stevenson, an experienced scaft'old-builder, and who had been pre-
viously employed by Smith, to build the necessary scaffold. This
was to be of the best materials, and first class in every way. Steven-
son built the scaffold of poles, in sections. To the poles used for
uprights, horizontal poles were lashed with ropes: these were called
ledgers. Upon these ledgers plank were placed, and upon the top of
each section so constructed was placed another similarly constructed.
When the scaffolding reached the curve of the dome it was neces-
sary to lessen the width of the upper section. For this purpose a
strip of plank was used as an upright to support the end of the
shorter ledger. This upright was called a cripple; but instead of
fastening the ledger to it by lashing it was fastened by nailing. The
scaffold was ninety feet in height. Devlin, a workman in Smith's
employ, was working on the curve of the dome, and sitting on a
plank laid upon a ledger which was nailed to an upright or cripple,
when the ledger gave way and broke. He was precipitated to the
floor below, and so injured that he died soon after.

Judgment for defendant.

Rapallo, J. Under the recent decisions in this State, it may
be that if Smith had undertaken to erect the scaff'old through agents,
or workmen acting under his direction, he would have been liable for
negligence on their part in doing the work, provided that in doing
it they were not fellow-servants of the party injured. But in this
case he did not so undertake. Stevenson was not the agent or servant
of Smith, but an independent contractor, for whose acts or omis-
sions Smith was not liable. (Blake v. Ferris, 5 N. Y. 48; 55 Am.
Dec. 304.) Smith received the scaffold from him as a completed
work, and we do not think that it was negligence to rely upon its
sufficiency and permit his employes to go upon it for the purpose
of performing their work. Stevenson was. as appears from the
evidence, much more competent than Smith to judge of its suffi-
ciency. He had undertaken to construct a first-class scaffold, and
had delivered it to Smith in performance of this contract, and we
do not think that Smith is chargeable with negligence for accepting ♦
it without further examination. All that such examination would
have disclosed would have been that the upright was nailed to the
ledger, and Smith, not being an expert, would have been justified
in relying upon the judgment of Stevenson as to the propriety of
that mode of fastening. The defect was not such as to admonish
Smith of danger.



520



DEVLIX 1\ SMITH



If any person was at fault in the matter it was the defendant
Stevenson. It is contended however, that even if through his neg-
Hgence the scaffold was defective, he is not liable in this action
because there was no privity between him and the deceased, and he
owed no duty to the deceased, his obligation and duty being only
to Smith, with whom he contracted.

As a general rule the builder of a structure for another party,
under a contract with him, or one who sells an article of his own
manufacture, is not liable to an action by a third party who uses
the same with the consent of the owner or purchaser, for injuries
resulting from a defect therein, caused by negligence. The liability
of the builder or manufacturer for such defects is, in general, only
to the person wath whom he contracted. But, notwithstanding this
rule, liability to third parties has been held to exist when the defect
is such as to render the article in itself imminently dangerous, and
serious to any person using it is a natural and probable consequence
of its use. As where a dealer in drugs carelessly labeled a deadly
poison as a harmless medicine, it was held that he was liable not
merely to the person to whom he sold it, but to the person who
ultimately used it, though it had passed through many hands. This
liability was held to rest, not upon any contract or direct privity
between him and the party injured, but upon the duty which the law
imposes on every one to avoid acts in their nature dangerous to the
lives of others. (Thomas v. Winchester, 6. X. Y. 397; 57 Am. Dec.
455.) In that case Mayor v. Cunlijf, 2 N. Y. 165, was cited as an
authority for the position that a builder is liable only to the party
for whom he builds. Some of the examples there put by way of
illustration were commented upon, and among others the case of
one who builds a carriage carelessly and of defective materials, and
sells it, and the purchaser lends it to a friend, and the carriage, by
reason of its original defect, breaks down and the friend is injured,
and the question is put, can he recover against the maker? The
comments of Ruggles, Ch. J., upon this supposititious case, in Thomas
V. Winchester, and the ground upon which he answers the question
in the negative, show clearly the distinction between the two classes
of cases. He says that in the case supposed, the obligation of the
maker to build faithfully arises only out of his contract with the
purchaser. The public have nothing to do with it. ^Misfortune to
third persons, not parties to the contract, would not be a natural
and necessar}^ consequence of the builder's negligence, and such
negligence is not an act imminently dangerous to human life.

Applying these tests to the question now before us, the solu-
tion is not difficult. Stevenson undertook to build a scaffold ninety
feet in height, for the express purpose of enabling the workmen
of Smith to stand upon it to paint the interior of the dome. Any
defect or negligence in its construction, which should cause it to
give way, would naturally result in these men being precipitated
from that great height. A stronger case where misfortune to third
persons not parties to the contract would be a natural and necessary



DEVLIN v. SMITH 521 / /,

consequence of the builder's negligence can hardly be supposed, nor t^
is it easy to imagine a more apt illustration of a case where such '

negligence would be an act imminently dangerous to human life.
These circumstances seem to us to bring the case fairly within the
principle of Thomas v. IVinchcstcr.

\\'e think there should be a new trial as to the defendant Steven-
son, and that it will be for the jury to determine whether the death
of the plaintiff's intestate was caused by negligence on the part of
Stevenson in the construction of the scaffold.

The judgment should be affirmed.^



* While it is by no means easy to reconcile all the New York cases which
cite and profess to follow Devlin v. Siiiiili, it may be said that a maker, vendor,
or supplier of an article is not only liable for negligence in its preparation,
where it is an "instrument or article whicli in its very nature is calculated to
do injury to mankind and is generally intended to accomplish that result'',
but "although a machine may not be in its nature inherently dangerous, yet if
it is made so by the neglect of a manufacturer having notice and knowledge
that it is to be used by others than the purchaser, and injury results to others
than the purchaser, directly traceable to that negligence, such manufacturer
is liable to the person injured, because of that negligence," Patterson J., Kah-
ncr V. Otis Elevator Co., 96 N. Y. App. Div. 169 (1904), pp. 173-174. elevator
in building of plaintiff's employer put in bad order by the negligence of
defendants employed to repair it. The following articles have been held im-
minently dangerous: a defective scoop in steam shovel leased by defendant
to the plaintiff's employer, Connors v. Gt. Xorthem Elevator Co., 90 N. Y.
App. Div. 311 (1904); a defective rope rigged upon derrick supplied for
hoisting granite foundation stones, Davies v. Pelham Hod Co., 65 Hun 573
(1892) ; a boiler having latent defect due to negligent construction by the
defendant Co., its maker and vendor, Statlcr v. Ray Mfg. Co., 125 N. Y. App.
Div. 69 0908), aff., 195 N. Y. 478 (1909). In Szvaii v. Jackson. 55 Hun
194 (1889). it was, however, held that a defective platform six feet high,
intended to sustain the weight of a man while filling an ice chest, was not
"imminently" dangerous.

In the great majority of American jurisdictions, however, in the absence
of knowledge and nondisclosure of a concealed defect, unfitting it for the
use for which it is sold, the vendor of an article owes no duty imless the
articles sold are like drugs, medicines and explosives, in themselves and from
their very nature "necessarily and inherently dangerous to human life", and
not articles which are only dangerous if improperly construoted — Bailey v.
Gas Co., 4 Ohio C. C. 471 (iSgo), p. 483. See cases cited in Hitsef v. Case etc.
Co., note 2, ante, p. 325, and Slattery y. Colgate, 55 Atl. 639 (R. I., 1903).
toilet soap, containing excess of alkali; Young v. Smith &■ Kelly Co.. 124
Ga., 475 (1905). vessel, turned over after partial loading, with hatches
imperfectly fastened, and Ostcn v. Morris Tasker Co., 17 Phila. 219 (1885),
gas receiver warranted to stand high pressure.

In Hcizer v. Kingsland Co., no j\Io. 605 (1892), it is held that a vendor
of goods owes no duty of care toward persons not party to the contract of
sale other than to correctly label, or otherwise make known the nature of
articles, which like drugs, poisons and explosives, do not by their appearance
disclose what they are, and which are inherently dangerous for use unless
their true character be known. Article? like threshing machines (the article
there in question), not being in and of themselves dangerous and plainly
showing what they are and for what use they are designed, need no label ; but
see V.nnn. J.. Kuelling v. Lean Co.. 183 N. Y. 78 (lOO.O. p. 90. "While the
machine fa heavy two horse rollerl was not inherently dangerous, that fact
is not contrnllincr". for the dancrer was in the concealed defect in an implement
sold as sound, and whicli appeared * * * to be so", and Kennedy. J., in
Fori V. Lubbock. 91 L. T. 7^ (i904\ p. 7^. intimating that where goods are
sold for a known purpose there is or is intended to be in eflfect a warranty



522 PARRY V. SMITH



PARRY V. SMITH.
In the Common Pleas Division, 1879. L. R. 4 C. P. D. 325.

Lopes, J.

This action was brought by the plaintiff to recover damages
in the following circumstances : — The plaintiff' was in the employ
of jNIessrs. Closes & Son, as one of their housekeepers. The de-
fendant was a gas-fitter employed by ]\Ioses & Son to repair a gas-
meter in a cellar belonging to Aloses & Son on the premises where
the plaintiff was employed. The defendant found it necessary to
take away the meter to repair it, and replaced it by a temporary
connection consisting of a flexible tube, one end of which was
pushed into the inlet pipe and the other end into the pipe communi-
cating with the house. The ends of both the pipes were bound with
rags and string and puttied up, and a drawer was put under the
curve of the tube so as to support it and take the weight off the
fastenings. After the temporary connection had been so placed by
the defendant, and he had gone away, the plaintiff, whose duty it
was to turn on and light the gas in the cellar, went there for the
purpose with a light. Directly the plaintiff opened the cellar door
an explosion took place, and he was knocked down and seriously
injured.

There was a large body of evidence called on both sides ; the
plaintiff's evidence going to shew that the mode of connection was
unsafe ; the defendant's that it was safe. It was agreed that the
damages, if the plaintiff' recovered, should be 50/.

I left three questions to the jury, — first, was the defendant neg-
ligent in doing the work, — secondly, did the accident proceed en-
tirely from the defendant's negligence, — and, thirdly, was the plain-
tiff also negligent, and was his negligence such that but for his neg-
ligence the accident would not have happened. I told the jury that,
if they answered both the first questions affirmatively, they need
not consider the third. The jury answered these questions in the
affirmative, and found a verdict for the plaintiff' for 50/.

Mr. W'addy at the end of the plaintiff's evidence had submitted
that there was no case for the jury. I thought there was, and did
not stop the case, but said I would reserve judgment and consider
the points of law. I also consented to make any amendments which
iriight be necessary to raise the real question between the parties.

Subsequently the points of law were argued before me. Mr.
Waddy contended, on the part of the defendant, that there was no
cause of action, unless there was privity between the plaintiff and
the defendant, or unless w^hat was done by the defendant amounted
to a public nuisance, or unless there had been on the part of the
defendant fraud, misrepresentation, or concealment. It was con-
tended by Mr. Finlay, on the part of the plaintiff, that the action
would lie, because the defendant knew he was dealing with gas, a
thing highly dangerous in itself unless great care and caution were

that it is safe for use therefor, and that not only those who get contractual
rights in it but anyone who, it may be fairly inferred, was intended to act
upon it, may recover against the vendor if through his lack of care it is unfit
for such purpose. See also 53 Am. L. Reg. 357, ct scq.. especially p. 359, n. 50.



PARRY Z\ SMITH 5^3

used in its management ; that the plaintiff's right of action was
founded, not on contract, but on the (hity whicli attaches to the
use or dealing with a thing in its nature highly dangerous and likely
to cause damage, unless managed with great care and caution.

I think the plaintiff's right of action is founded on a duty which
1 believe attaches in every case where a person is using or is dealing
with a highly dangerous thing, which, unless managed with the
greatest care, is calculated to cause injury to by-standers. To sup-
port such a right of action, there need be no privity between the
party injured and him by whose breach of duty- the injury is caused,
nor any fraud, misrepresentation, or concealment; nur need what
is done by the defendant amount to a public nuisance. It is a mis-
feasance independent of contract.

It is strange that there is no direct authority on the point.
A large number of cases were cited, but none of them directly in
point. The case of Collis v. Sclden { Law Rep. 3 C. P. 495 ) was
relied on by Mr. Waddy in argument. This was a demurrer to a
declaration ; and it was held that the declaration was bad. because
it did not disclose any duty by the defendant towards the plaintiff
for the breach of which an action would lie. W'illes. J., in his judg-
ment, seems to have contemplated an action like the present ; for,
he savs : "The declaration is not founded upon any duty of the
occupier to protect persons lawfully coming there against any hidden
danger of which the defendant knew or ought to have known, but
is founded on alleged carelessness in doing an act. viz. hanging a
chandelier. The chandelier is to be regarded as movable property ;
and the declaration should have shewn either that it was a tiling
dangerous in itself and likely to do damage, or that it was so hung
as to be dangerous to persons frequenting the house."

Rapson v. Ciibitt (9 ]\I. & W. 710) is in point. There, the de-
fendant, a builder, was employed by the committee of a club to
execute certain alterations at the club-house, including the prepara-
tion and fixing of gas-fittings. He made a sub-contract with R.,
a gas-fitter, to execute part of the work. In the course of doing
it. through B.'s negligence the gas exploded, and injured the plain-
tiff, .who was the butler of the club. It was held that the defend-
ant was not liable, on the ground that P>. was not his servant, but
an independent sub-contractor. It seems, however, to have been
assumed that an action against B. would have been maintainable.

All the other cases cited are distinguishable from this case.
They are not cases where the alleged cause of action is in respect
of a breach of duty in using or dealing with a thing in its nature
dangerous and likely to cause injury unless great care is used.

There must be judgment for the plaintiff for 50/. and costs.

Judg)nent accordingly }



^Accord: Van Winkle v. American Boiler Insurance Co., 52 N. J. L. 240
(1890), the defendant company which had insured a boiler in a building adjacent
to the plaintiff's mill, by a policy in which they stipulated for access to the
boiler for the purpose of inspection and that the policy should be void if the
assured continued to use the boiler after notice that it was unsafe, havinp made
an inspection issued to the assured a certificate that the boiler, which in fact
was defective, was in cood order ; in consequence the assured continued to use
the boiler which exploded and wrecked the plaintiff's premises.



/

/



524 DELANEY V. EREICKSON

CHAPTER V.

Liabilities not dependent upon proof of negligence.



SECTION 1.
Ownership and Keeping of Animals.



(a) Trespasses upon real property.

ANON.

12 Henry VII. Keilway, 3b.

And they (the Court) say further, that where my beasts of
their own wrong without my will and knowledge break another's
close I shall be punished, for I am the trespasser with my beasts;
which was also agreed to by law ; for I am held by the law to keep
my beasts without their doing wrong to any one.^



DELANEY v. ERRICKSON.

J Supreme Court of Nebraska, 1880. 10 Nebraska, 492.

Cobb, J. : It cannot be denied that at common law every one
was obliged at his peril to keep his domestic animals off of the lands
of another, and it made no difference whether such lands were in-

^ closed or uninclosed, cultivated or uncultivated.

^ The first legislature convened in the territory of Nebraska

^nJ passed an act which (in substance) now constitutes chapter ten of
the general laws, and is in the following words: "So much of the
common law of England as is applicable and not inconsistent with
the constitution of the United States, with the organic law of this