Summary
In Ledyard, supra, a housewife was injured by an electrical shock when she grasped the handle of a defective electrical cooking appliance which her husband had purchased from the defendant.
Summary of this case from Lonzrick v. Republic Steel Corp.Opinion
No. 35065
Decided November 27, 1957.
Sales — Sale of defective manufactured article — Person, other than purchaser, injured in use thereof — Liability of seller — No privity of contract — No implied warranty.
APPEAL from the Court of Appeals for Fulton County.
This action was instituted in the Common Pleas Court of Fulton County by the filing of a petition on June 27, 1955, alleging that defendant was "a merchant conducting a retail store in * * * Wauseon * * * under the firm name and style of Western Auto Store"; that on or about December 24, 1954, "defendant had on display in said store for sale a certain electrical cooking appliance designed for the purpose of cooking food in hot grease by heat generated in said cooker through the consumption of electric current of 110 volts, 60 cycle * * * which was the type of current supplied by the public utility serving * * * Wauseon"; that at that time "defendant * * * warranted and held out to the general public, and more especially to * * * plaintiff, said appliance to be of sound construction, ready and capable of withstanding use for which it was designed; that said appliance was designed for cooking foods as aforesaid, and the defendant * * * by representing said appliance to be fit for said purpose warranted the said cooker to be of sound construction and capable to taking the current ordinarily applied thereto when in use without danger to the user"; that plaintiff's husband "believed said representations to be true and purchased from * * * defendant" at that time "said cooker and paid * * * defendant the purchase price of said cooker, and installed said cooker for culinary purposes in the dwelling house then occupied by the plaintiff and" plaintiff's husband "for the purpose of cooking food by" plaintiff "for the consumption of herself and her * * * husband and their family"; that the "cooker was of defective material, defective workmanship, and negligently constructed; that the defects * * * were not possible of discovery by general observation or superficial examination; that said defects were hidden, latent and invisible; that the * * * cooker is now in the possession of * * * defendant and * * * plaintiff is unable to specify or set forth * * * with greater accuracy the exact nature of said defective construction * * *; that said article was not inherently dangerous to life or limb but because of the negligent construction * * * the article became dangerous to life or limb to the possible user thereof"; that subsequently "plaintiff used said cooker by connecting it with the household electric current * * * in the kitchen of the home, in the customary manner * * * for the purpose of frying * * * shrimp in deep fat therein; and that while the plaintiff held said cooker in her hand she received a violent electric shock from said cooker and her arm was paralyzed and she was unable to release her hold on said cooker and said cooker exploded."
Plaintiff prays for judgment against defendant for damages for her resulting personal injuries.
Because the plaintiff has conceded that her action is not based on negligence but on breach of warranty, no reference is made to some of the allegations of the petition apparently made only for the purpose of stating a cause of action based upon negligence.
At the conclusion of the plaintiff's testimony, the trial court granted a motion by the defendant to arrest the testimony and to instruct the jury to return a verdict for the defendant. Thereafter judgment was rendered for the defendant and plaintiff's motion for a new trial was overruled.
On appeal to the Court of Appeals, that judgment was affirmed.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of plaintiff's motion to certify the record.
Mr. Otto W. Hess and Mr. George A. Meekison, for appellant.
Messrs. Ham Ham, Messrs. Effler, Eastman, Stichter Smith, Messrs. Doyle, Lewis Warner and Mr. D.L. Sears, for appellee.
Plaintiff concedes that her action is not based upon negligence.
Plaintiff has argued that the evidence supports an inference that plaintiff's husband purchased the cooker as agent for plaintiff. There are obviously no allegations in plaintiff's petition which would support any such determination. Nor are there any allegations that would reasonably support a legal determination that, in making the purchase of the cooker, plaintiff's husband made a contract with defendant for the benefit of plaintiff, or, in other words, that plaintiff was a third party beneficiary of a contract made between her husband and defendant for her benefit. Therefore, we express no opinion as to whether plaintiff could recover from defendant for breach of warranty if there had been such allegations. Also, it is conceded that plaintiff's action is not one for deceit.
Plaintiff's petition is susceptible of an interpretation that there was an express warranty to plaintiff and not merely to her husband because, to use the words of the petition, "defendant * * * warranted and held out to the general public, and more especially to * * * plaintiff, said appliance to be of sound construction, ready and capable of withstanding use for which it was designed." However, there is no evidence in the record of any express warranty to plaintiff, i. e. (to refer to the words of Section 1315.13, Revised Code, defining an express warranty), "any affirmation of fact or any promise by" defendant made to or relied upon by the plaintiff. Hence, in order to prevail, upon the pleadings and the evidence in the instant case, plaintiff must rely upon some implied warranty.
In Wood v. General Electric Co., 159 Ohio St. 273, 112 N.E.2d 8, paragraph two of the syllabus reads:
"Although a subpurchaser of an inherently dangerous article may recover from its manufacturer for negligence, in the making and furnishing of the article, causing harm to the sub-purchaser or his property from a latent defect therein, no action may be maintained against a manufacturer for injury, based upon implied warranty of fitness of the article so furnished."
In the opinion by Hart, J., at page 279, it is said:
"* * * Here, there was no * * * privity and hence no implied warranty * * *." (Emphasis added.)
In Canton Provision Co. v. Gauder, 130 Ohio St. 43, 196 N.E. 634, plaintiff sought to recover for damages suffered from eating food claimed to be unwholesome. The food had been purchased by plaintiff's mother from a retail meat dealer who had purchased it for sale in a sealed container from a manufacturer. Suit was brought against both the dealer and the manufacturer. It was stated in the opinion by Williams, J.:
"Some authorities have been cited to sustain the theory that the liability on the part of each defendant arose out of the breach of an implied warranty that the food product sold was fit for food. An implied contract of warranty requires a meeting of the minds the same as does an express contract. Columbus, H.V. T. Ry. Co. v. Gaffney, 65 Ohio St. 104, 61 N.E. 152. There was no privity of contract between the plaintiff and either of the defendants for the petition alleges that the liver pudding was purchased by the plaintiff's mother. Any liability that exists in the instant case therefore necessarily arises out of tort." (Emphasis added.)
Judgment affirmed.
WEYGANDT, C.J., STEWART, TAFT and HERBERT, JJ., concur.
BELL and MATTHIAS, JJ., dissent.