Opinion
No. 27079.
June 4, 1928.
AUTOMOBILES. Truck manufacturer held not liable for death of remote buyer resulting from defective cuff causing truck to plunge into ditch.
Where automobile truck and alleged defective cuff had come from manufacturer through several purchasers before they reached deceased, so that deceased had no contractual relations with manufacturer, manufacturer held not liable for death of deceased because of defective cuff, which broke, causing truck to become unmanageable and plunge into ditch, since automobile is not a dangerous instrumentality per se.
APPEAL from circuit court of Scott county; HON. G.E. WILSON, Judge.
Green, Green Potter, for appellant.
To begin with, we take it as axiomatic that the Ford Motor Company is not an insurer of its products, neither does it have to give to them the best possible inspection, and that all that they are required to do, would be to reasonably inspect. Wilkinson v. Andsieno Bottl. Co. (1911), 154 Mo. App. 563, 136 S.W. 720; Kehler, Next Friend, v. Schwenk, 144 Pa. 348; Brand v. St. Louis Car Co., 112 S.W. (Mo.) 511; Dean, Executor, v. Central City Light Power Co., 125 S.W. 739; Pennsylvania R. Co. v. Neilson, 259 Fed. 156; Haines v. Spencer, 167 Fed. 266 (1909).
It was established at an early date by an English decision that an action for tort would not lie against a manufacturer in favor of a person, other than his immediate vendee and this case has been followed for a long time, and has been closely adhered to by this court, the general exceptions from the rule, are in cases of foods, high explosives and poisons, and also where the manufacturer knew of the defects and concealed the same, being guilty of fraud. Lately, to that line of decisions which held that where an article was inherently dangerous, the manufacturer was liable to one not immediately his vendee for negligence in the construction, and a number of courts headed by New York in the McPherson v. Buick Motor Co. case, have announced the doctrine that the manufacturer is liable to one not his immediate vendee for negligence in the construction of an article not in itself imminently dangerous, but made imminently dangerous by reason of the negligence of the manufacturer and it is upon this line of decisions that plaintiff seeks to recover. The authorities in other states are equally divided on this subject. But, be that as it may, this court is thoroughly committed to the doctrine that unless the article, in and of itself and without regard to the negligence of the manufacturer, is manufactured imminently dangerous, there can be no recovery from any person other than the immediate vendee. These cases are Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469; W.T. Pate v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; Kilcrease v. Galtney Motor (Miss. 1928), 115 So. 193.
U.B. Parker and Mize Dudley, for appellees.
The case of Charles B. Heckel v. Ford Motor Co., from the New Jersey court of errors and appeals, March 16, 1925, 39 A.L.R., page 989, 128 A. 242, which case is directly in point and discusses the liability of a manufacturer of dangerous appliances, saying: "The manufacturer of appliances that will become highly dangerous when put to the uses for which it is designed and intended, because of defects in its manufacture owes to the public a duty irrespective of any contractual relation, to use reasonable care in the manufacture of such appliance and such duty calls for and requires the exercise of reasonable care in applying reasonable tests to detect defects and deficiencies in the appliance." See McPherson v. Buick Motor Co., 217 N.Y. 527; Quackenbush v. Ford Motor Co., 153 N.Y.S. 137; Olds Motor Works v. Shaffer, 145 Ky. 616; 37 L.R.A. (N.S.) 560, and note.
Appellee earnestly feels that with the Heckel decision, supra, against the very appellant here, this court will hold that a manufacturer putting out automobiles and parts which, from common knowledge, will be used by purchasers, and from the nature of the thing manufactured and sold, is such that it is reasonably certain to place life and limb in peril, when negligently made and the manufacturer knows that the product will be used by purchasers without testing its fitness, he owes a purchaser a duty to exercise care in making it or inspecting it in a manner above the average and we earnestly contend that the record in this case abundantly shows that no such inspection was had, that the taking of a few drillings from a whole shipment of parts and washing or cleaning and looking at them even though they didn't manufacture them, was an insufficient inspection.
It seems that the defendant's liability in a case exactly like the one at bar has been established in the courts of other states against this identical defendant, in a case where it would take a great deal more trouble to make the inspection than would have been necessary in the case at bar. The jury in this case had submitted to it the question of whether or not proper inspection had been made on the testimony of the plaintiff and the defendant. The law settled the question as to contractual relationship in a case against this very defendant, 39 A.L.R. 989.
Appellant cites and quotes from the cases in our state court as follows: Vicksburg v. Holmes, 106 Miss. 234; W.T. Pate v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; Kilcrease v. Galtney Motor (Miss. 1928), 115 So. 193. We respectively submit that neither of the above cases are in point in the least degree.
The Vicksburg case was a case where the city changed the grade of a street and undertook to raise a church building and employed a contractor to do so, who did poor workmanship and used insufficient pillars so that surface water weakened the building and when a large number of people were in the church, who went to a funeral, the building collapsed. The court held that there was no element of deceit by the city or its agents. In fact we can't see the similarity of our case and the Vicksburg case. Next, the Pate Automobile case was not a case where the manufacturer sold a product to the person who was injured and this case went off on the theory that no allegation was made that no proper inspection had been made of the parts sold by the defendant. The case of Kilcrease v. Galtney Motor Co., was a case where the plaintiff had no relationship whatever to the seller, but was a servant of the saw mill company, who operated a mill with a defective pulley or a pulley which had not been properly fastened to the shaft. We fail to see any similarity of the case at bar to the three cases cited by appellant.
Argued orally by Chalmers Potter, for appellant, and Colbert Dudley, for appellees.
Appellees, parents and brothers and sisters of John Myers, deceased, brought this action in the circuit court of Scott county against appellant to recover damages for the death of the said John Myers, alleged to have been caused by the negligence of appellant. There was a trial, resulting in a verdict and judgment for appellees in the sum of three thousand dollars. From that judgment appellant prosecutes this appeal.
Appellees alleged in their declaration, in substance, that appellant was engaged in the business of manufacturing and selling automobiles, trucks, tractors, and accessories for such machines, which, from their nature, were calculated to place life and limb in peril when negligently constructed; that John Myers, the deceased, was driving a truck, manufactured and sold by appellant, loaded with lumber, and, while so driving said truck, a cuff, constituting a part of such truck and being of defective material (which defect could have been detected by reasonable inspection), broke, causing the truck to become unmanageable and plunge into a ditch, resulting in the death of the said John Myers.
The evidence showed that the deceased lost his life in the manner set out in the declaration. There was, however, a sharp conflict in the evidence as to the other material allegations of the declaration.
The evidence showed that the deceased, John Myers, had no contractual relations with appellant; that he was a remote vendee of both the truck and the defective cuff, which was alleged to have been the proximate cause of the accident. Putting it differently, the evidence showed that the truck and the cuff had come from appellant through several purchasers before they reached the deceased. On that ground, among others, appellant contends that it was entitled to a directed verdict, which the court refused to grant on its request. Appellant's position is supported by Kilcrease v. Galtney Motor Co. et al. (Miss.), 115 So. 193; Pate v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; and Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469.
Appellee relies on decisions of courts of other jurisdictions, which hold that the manufacture of appliances which will become highly dangerous when put to the uses for which they are intended, because of defects in their manufacture, owes the public a duty, irrespective of any contractual relation to use reasonable care in the manufacture of such appliances. As stated, our court has held to the contrary, as shown in the decisions above cited.
If an automobile was a dangerous instrumentality per se, there would be more reason for the position of appellees. But our court held, in Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258, that an automobile was not such an instrumentality.
These views render it unnecessary to notice any of the other grounds relied on by appellant for a directed verdict.
Reversed, and judgment here for appellant.
Reversed.