Opinion
No. 29610.
January 4, 1932.
1. EVIDENCE.
Conjecture will not support verdict.
2. EXPLOSIVES.
Manufacturer of dynamite and caps was not liable for injuries resulting from defect in another manufacturer's fuse sold with dynamite and caps, absent negligence.
3. EXPLOSIVES.
Seller of explosives is not liable in any event for any defect therein.
4. EXPLOSIVES.
Dynamite and cap manufacturer was not responsible as manufacturer as to another manufacturer's fuse sold, because dynamite caps, and fuse formed essential combination.
5. SALES.
Certificate on box containing dynamite caps and fuse sold that contents had been inspected and were in good condition when packed held not warranty of absolute safety.
6. EXPLOSIVES.
Manufacturer of dynamite and caps selling another manufacturer's fuse with dynamite and caps held not liable for injuries resulting from defective fuse where only method of detecting defect was to burn it and plaintiff did that before beginning work.
APPEAL from circuit court of Coahoma county; HON.W.A. ALCORN, JR., Judge.
Hannah Simrall, of Hattiesburg, for appellant.
A manufacturer does not owe any duty to the public or any subvendee of its vendee.
Ford Motor Company v. Myers, 151 Miss. 73, 117 So. 362; Kilcrease v. Galtney Motor Co. et al., 115 So. 193; Pate v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469.
An examination of the various causes which have held that the manufacturer or vendor of an article is liable to third parties with whom he has no contractual relations shows that liabilty is made to depend upon some fraud, deceit or concealment or upon some negligence or omission of duty, such as reasonable inspection to discover defects in material or workmanship.
Pate v. Westbrook Elevator Company, 142 Miss. 419, 107 So. 552.
There seems to be no division among the authorities that a warranty by the seller of the quality of personal property sold is addressed alone to the first purchaser; that such warranty does not run with the title to the property, and subpurchasers cannot avail themselves of such warranty as against original seller. Some of the reasons for the rule are that there is no contractual relation existing between the original seller, the warrantor, and a subpurchaser. They are unknown to each other in the transaction. The seller who warrants does so alone for the benefit of his purchaser. He receives the purchase price as the consideration for the property and the warranty going with it.
Royal Feed Milling Co. v. Thorn, 142 Miss. 92, 107 So. 282; Pease Dwyer v. Somers Planting Co., 93 So. 673, 130 Miss. 147.
The fuse, which appellee testified caused his injury was not manufactured by the Hercules Powder Company.
In order that the master may be held to have been negligent in furnishing the servant with an unsafe appliance it must appear that the master knew, or by reasonable inspection thereof could have known, of the defect therein, and the burden of proving such actual or constructive knowledge on the part of the master is on the servant when attempting to recover damage for an injury sustained by him by reason of a defect in an appliance furnished by the master.
Lampton v. Atkins, 129 Miss. 660, 92 So. 638; Mobile Ohio R.R. Co. v. Clay, 156 Miss. 288, 125 So. 825.
An express warranty will exclude an implied warranty on the same or a closely related subject. Thus an express warranty of quality will exclude an implied warranty of fitness for the purpose intended.
30 Cyc., p. 392.
The maxim res ipsa loquitur has no application to a breach of warranty but it relates solely and only to cases of negligence.
Oregon Auto Despatch v. Portland Cortage Co., 51 Or. 583, 95 P. 498.
In view of the fact that the appellee was an experienced blaster and was wholly unable to offer any reason or excuse for this instant or premature burning of the fuse shows that the case made out by appellee is too conjectural to warrant a verdict.
Wheeler v. Laurel Bottling Works, 111 Miss. 442, 71 So. 743. Flowers, Brown Hester, of Jackson, and Brewer Brewer, of Clarksdale, for appellee.
The Powder Company, under the circumstances shown, assumed the same liability that a manufacturer assumes. It was in a kindred business. It held itself out as a professional dealer in articles of this kind. Fuse and caps and dynamite all contain explosives. They are not used until they are put together. The Powder Company provides all three to be used in conjunction. The safety of one depends upon the soundness of the others.
The manufacturer who puts or causes the component parts to be put together, or accepts them as his own after they are assembled, must be presumed to know the nature and quality of the resultant compound which he solicits the public to purchase.
Thornhill v. Carpenter-Morton Co., 108 N.E. 474.
More care is required in the handling of articles of a dangerous character than is exacted of dealers in articles that are not in themselves dangerous.
Whether we find any difference between the liability of a mere regular distributor of such articles manufactured by the shipper and the liability of the manufacturer of the defective articles themselves, it certainly cannot be said that the distributor packing and shipping the articles may shut his eyes and exercise no more care for the protection of the users of the articles than if he were shipping apples or nails or salt.
Our court has intimated at least that in the case of the dealing in articles inherently dangerous it might be said that the manufacturer owes the public a duty irrespective of any contractual relation to use reasonable care in the manufacture of such articles.
Ford Motor Co. v. Myers, 151 Miss. 73, 117 So. 362.
The three articles to be combined for the blasting of stumps were carefully used by a man who knew how to use them. There was an unexpected result, one that does not come from the proper use of articles of this nature when the articles are in sound condition. The inference of defective condition is inevitable.
Waddle v. Southerland, 156 Miss. 540, 126 So. 201.
If there is nothing to explain or rebut the inference that arises from the way in which the thing happened it may fairly be found to have been occasioned by negligence. Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence; not that they compel such an inference but that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking.
Vargas v. Blue Seal Bottling Works, 126 So. 707; Lawson v. Nossek, 130 So. 669; Waddle v. Southerland, 156 Miss. 540, 126 So. 203.
Argued orally by James Simrall, for appellant, and by Ed Brewer, for appellee.
The Roundaway Company was desirous of having some stumps blasted on a farm operated by it, and on February 19, 1929, an order was given to the Delta Hardware Implement Company for two hundred fifty pounds dynamite, one hundred blasting caps, and two hundred feet safety fuse, the latter being described in the order as "Clover Fuse." This order was thereupon placed with and filled by appellant, Hercules Powder Company, from its Memphis headquarters, the shipment being made direct to the Roundaway Company. The shipment when received, which was in due course of time, was stored in a cotton house, on the plantation where the blasting was to be done. On March 11, 1929, appellee, who had been employed to do this blasting work, went to the said cotton house and took said explosives therefrom. He examined same; particularly the fuse, which he describes as having all the appearance of being "brand new" and as being in as good condition as any he had ever used. Appellee was a dynamite blaster of long and varied experience, extending through a period of seventeen years. He not only examined said fuse in matter of ocular inspection, but he also cut a piece of it and fired it, and saw that it burned in the ordinary and proper manner. He then blasted two or three stumps, and the appliances worked as was expected and according to the usual course of experience in such work.
However, when appellee went to what he calls the third stump, and which had been prepared by him in due course for the blasting of that stump, and when he applied the fire to the end of the safety fuse, there was an instantaneous explosion, as a result of which appellee suffered serious and permanent injuries.
It is shown by the testimony, and there is no dispute upon the two following facts: Appellant was the manufacturer of the dynamite and of the caps; but appellant was not the manufacturer of the fuse. This Clover fuse was manufactured by an independent manufacturer at Simsburg, Conn., which manufacturer was shown not only to be reliable, but so much so that all the manufacturers of, and dealers in, explosives east of the Rocky Mountains used this fuse, manufactured by this Connecticut concern, and relied upon it exclusively for the furnishing of that part of the blasting equipment. In the third place, there is no testimony in this record which would show beyond that which is purely conjectural that either the caps or the dynamite was at fault in this case. And, since conjecture will not support any verdict in any case, the dynamite and caps must be excluded from further part herein, leaving only the fuse to be considered.
Since the undisputed fact is that appellant did not manufacture said fuse, it is not liable, as the seller thereof, for an injury resulting from a defect therein, in the absence of negligence on its part. The proof is undisputed that there is no way, outside of the factory of the maker, to determine upon an ocular inspection of this fuse whether it was or was not defective. Appellee who was of long experience recognized this fact, and himself made the test or experiment upon this issue; and, before beginning to use the fuse, he cut off a piece of it, and fired it, as a result of which he found it good. What more could the seller itself have done?
But it is argued by appellee that appellant was in the exclusive business of manufacturing and dealing in explosives, that it therefore held itself out as an expert on that subject, and that all persons dealing with or using anything coming from its hands had a right to rely on the safety of any of the articles which appellant manufactured or sold. The argument contended for by appellee, to strip it of all frills, is that a seller of explosives is liable in any event for any defect therein. No case so holding is cited by appellee, and we find none such on our own research. Appellee argues, too, that since dynamite, caps, and fuse form an essential combination for blasting work, he who manufactures the dynamite and the caps should be held to the responsibility of a manufacturer as to the third element in the combination, that is, as to the fuse; but no case is shown us which so holds, and we fail to see a dependable reason for this asserted innovation upon the rule as to a seller's liability. We are not here concerned with the rule in respect to the manufacturer of explosives, and express no opinion on that subject.
Finally, the case is sought to be sustained upon the fact that in the box wherein the caps and the fuse were packed there was found the following certificate: "The contents of this case have been inspected and were in good condition when packed. Hercules Powder Company." It is argued that this is a warranty of absolute safety, and the fact that a portion of one of the coils of fuse fired instantaneously is of itself the proof of a breach of that warranty. There is no such language in the certificate. It certifies only that the contents of the case were inspected and were then in good condition, which means that, so far as an inspection could reveal, the condition was good. As already said, the testimony is undisputed in this case that, outside the factory of the manufacturer of safety fuse, there is no way of telling whether the fuse is safe — the only method is to actually test it by burning it, and that was what appellee himself did before he began work. Appellant could have done no more. Appellee's case therefore gets back to the bare proposition that he was injured; that he was proceeding in due care; that therefore somebody ought to be liable to him; and that the person so liable must be this appellant, there being none other conveniently available who may be held. The case arouses a sympathetic interest, but we think there is no proved liability as against the appellant here. Lampton v. Atkins, 129 Miss. 660, 92 So. 638; Wheeler v. Laurel Bottle Works, 111 Miss. 442, 71 So. 743, L.R.A. 1916E, 1074; Mobile O.R. Co. v. Clay, 156 Miss. 463, 125 So. 819.
Reversed, and judgment here for appellant.