In Sterchi Brothers Stores, Inc., v. Castleberry, 1938, 28 Ala. App. 281, 182 So. 471, 472, the Court of Appeals of Alabama reversed a judgment against a storekeeper who sold an electric refrigerator which "exploded" by reason of the escape of gas from a small pipe which cracked, the court feeling that, as far as the merchant was concerned, the article was not imminently or inherently dangerous.Summary of this case from E.I. DU PONT DE NEMOURS AND CO. v. KISSINGER
8 Div. 557.
October 26, 1937. Rehearing Denied January 11, 1938. Affirmed on Mandate June 30, 1938.
Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.
Action for damages by Mrs. J. F. Castleberry against Sterchi Bros. Stores, Incorporated. From a judgment for plaintiff, defendant appeals.
Count A alleges, in substance, that the defendant was engaged in selling electric refrigerators and installing same, and knew, or by the exercise of reasonable diligence should have known, when the same were in good condition and properly installed, and that the plaintiff had no such knowledge; that "the defendant sold and installed an electric refrigerator in the house of plaintiff," knowing at the time, or by the exercise of reasonable diligence should have known, that said electric refrigerator, or the installation thereof, was defective in that it would produce excessive overhead pressure; that thereafter the defendant, after being notified of said defect, negligently failed to remedy said defect, and on account of the negligence of the defendant in failing to remedy said defect, said refrigerator burst or exploded, exuding a gas or gases injurious to the human constitution, as a proximate consequence of which plaintiff was injured as alleged.
Count B alleges that defendant was engaged in selling electric refrigerators and installing them, and "for a consideration did sell the husband of plaintiff for her use and comfort an electric refrigerator and did install the same and agree to keep the same in serviceable condition for two years"; and it is averred that "defendant * * * was guilty of negligence in and about the installation of said refrigerator; and that as a proximate result of the defendant's said negligence the said refrigerator burst or exploded and exuded a gas or gases injurious to the human constitution and as a proximate result of said negligence" plaintiff was injured as alleged.
Count C alleges that defendant "sold to the husband of the plaintiff, for the use and comfort of the family of the plaintiff's husband," an electric refrigerator, and avers that "thereafter said refrigerator so sold to the plaintiff's husband by the defendant was in a defective condition and failed to function properly; * * * that the defendant * * * did undertake to adjust, repair or restore said refrigerator to a proper working condition; that the defendant * * * was negligent in and about the performance of its aforesaid undertaking and did negligently fail to adjust, restore or repair said refrigerator so that it would function properly and safely, thereby causing the refrigerator, or parts thereof, to burst," etc., injuring plaintiff.
Count D is, in material substance, the same as count A.
The demurrer, among other grounds, takes the objection that the complaint alleges no duty, contractual or otherwise, owing by the defendant to the plaintiff; that neither count of the complaint states a cause of action.
L. A. May and Bradshaw Barnett, all of Florence, for appellant.
The complaint does not sufficiently state a cause of action. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443; Louisville N. R. Co. v. Bishop, 17 Ala. App. 320, 85 So. 859; Ragland v. Duke, 223 Ala. 574, 137 So. 397. It shows no duty owing by defendant to plaintiff. It is not alleged that the article sold was inherently dangerous. 25 C.J. 185; Ragland v. Duke, supra; Morgan v. Sheppard, 156 Ala. 403, 410, 47 So. 147; Hart v. Coleman, 192 Ala. 447, 68 So. 315; Adler v. Miller, 218 Ala. 674, 120 So. 153; Brown v. Fogarty, 221 Ala. 283, 128 So. 376. The proof failed to support the allegations of the complaint, and defendant was due the affirmative charge. Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Walker County v. Davis, 221 Ala. 195, 128 So. 144.
R. T. Simpson and R. T. Simpson, Jr., both of Florence, and Ben F. Ray, of Birmingham, for appellee.
The seller is liable for damages for personal injuries suffered by third persons if the article was imminently dangerous, if the defect was known or by exercise of reasonable diligence should have been known by the vendor. 45 C.J. 849, 850, 893. Vendor selling and installing an article is liable for damages resulting from negligence in installation. 45 C.J. 894; Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548; Alabama Power Co. v. Emens, 228 Ala. 466, 153 So. 729; Hale on Torts, 468-486. A person negligently repairing personal property is liable for damages. 45 C.J. 895.
Appellee, plaintiff in the court below, brought suit (successful, as appears) against appellant, claiming damages for personal injuries received as the result of the "bursting" or "exploding" of a mechanical refrigerator sold by appellant to the husband of appellee.
The refrigerator in question was a Kelvinator, a nationally advertised product of a manufacturer who is not a party to the suit; and it was sold by the appellant in the condition in which it was bought from the manufacturer.
The refrigerator was placed with the Castleberrys "on approval," and was purchased by Mr. Castleberry, the husband of plaintiff, appellee, after a trial of ten days or two weeks in his home.
It had been used by the Castleberrys for more than a year when a small pipe cracked and a gas escaped. This escaping gas is alleged to have caused the injuries for which damages are claimed.
The negligence relied upon is the negligent failure or refusal to repair, the negligent installation of the refrigerator, and the negligence in selling the refrigerator.
"It frequently has been declared to be a rule that no cause of action in tort can arise from the breach of a duty existing by virtue of contract, unless there be between the defendant and the person injured what is termed privity of contract." 20 R.C.L. p. 49, § 44.
And the fact that "a seller warrants the condition or quality of a (the) thing sold does not in itself * * * impose any liability on him (it) to third persons who are in no way a party to the contract. In such a case there is no privity of contract between the seller and such third person, and this precludes any right on his (her) part to any advantage or benefit to be derived from the warranty." 24 R.C.L. 158; State of Maryland, to Use of Winfield H. Bond, v. Consolidated Gas, Electric Light Power Company of Baltimore, 146 Md. 390, 126 A. 105, 42 A.L.R. 1237.
And we think, and hold, that "in order to make a vendor liable (in such a case as this) who sells an article not in itself of an imminently dangerous character, it must be averred that he had actual knowledge of the defect or danger." Huset v. J. I. Case Threshing Machine Company, 120 F. 865, 57 C.C.A. 237, 61 L.R.A. 303.
The rule is well established that where the injury is the result of an act, the cause of which is not in itself imminently dangerous to life and limb, nor based upon fraud or deceit, nor implied invitation, and where the plaintiff is not a privy of the contract with the defendant, an action for negligence will not lie. Laudeman v. Russell Co. et al., 46 Ind. App. 32, 91 N.E. 822.
It has been said that, "ordinarily, where a vendee accepts the purchased article, the vendor becomes, by reason of such acceptance, relieved from liability to third parties with respect to it." Bragdon v. Perkins-Campbell Company, 87 F. 109, 110, 30 C.C.A. 567, 66 L.R.A. 924.
And we are of the opinion, moreover, that the fact that the Kelvinator was used by appellee for more than one year from the date of its purchase, before the occurrence made the subject of the suit, is conclusive evidence that same was not — even if same had been averred, which it was not — imminently dangerous when sold. Lynch v. International Harvester Co. (C.C.A.) 60 F.2d 223.
We concede it to be the law that "one who sells article known to be imminently dangerous to another, without notice of its qualities, is liable to any person who suffers injury therefrom which might have been reasonably anticipated, whether there were contractual relations between parties or not." Lynch v. International Harvester Co., supra.
But we find nothing in the evidence indicating that a Kelvinator, such as the one involved in this case, is an article inherently dangerous; or that the one here involved was imminently dangerous. Giberti v. James Barrett Mfg. Co., 266 Mass. 70, 165 N.E. 19. In fact, as pointed out herein-above, it seems conclusively established that it was not inherently nor imminently dangerous.
In such a case it is well known that the seller of such an article takes upon himself no duty or obligation other than that which results from his contract. Giberti v. James Barrett Mfg. Co., supra.
In a case not distinguishable on the law involved from the instant case, the Court of Appeals of Kentucky held that the seller of a cook stove, which was not inherently nor imminently dangerous, was not liable to wife of buyer for personal injuries from explosion of stove due to negligent installation. Bensinger Outfitting Co. v. Seaman's Adm'r, 213 Ky. 157, 280 S.W. 941; and see Huset v. J. I. Case Threshing Machine Co., supra; also Osheroff v. Rhodes-Burford Co., 203 Ky. 408, 262 S.W. 583, and Pitman v. Lynn Gas Electric Co., 241 Mass. 322, 135 N.E. 223.
Perhaps we have said enough. But we might add that it is, of course — with reference especially to counts A. D. of the complaint — true that, on demurrer, the averments of the pleading demurred to are construed most strongly against the pleader. Ensley Ry. Co. v. Chewning, 93 Ala. 24, 9 So. 458.
Considering the principles of law quoted, and set down, as hereinabove, all of which represent our conclusion, we are of the opinion, and hold, that each, and all, of the four counts of the complaint which were submitted to the jury were subject to the demurrers interposed thereto. And, further, that if any of said counts had been amended to state a cause of action under the principles we have set forth, under the evidence as contained in the bill of exceptions sent up here, the defendant, appellant, would have been entitled to have the jury given at its request the general affirmative charge to find in its favor.
For the error in overruling appellant's demurrers to plaintiff's (appellee's) complaint, and, separately, for the errors in overruling appellant's demurrers to counts A, B, C, and D of plaintiff's complaint, the judgment is reversed, and the cause remanded.
Reversed and remanded.