In Wood, the opinion relied upon the Restatement of the Law of Torts, which has since been changed to approve such an action.Summary of this case from Lonzrick v. Republic Steel Corp.
Decided April 29, 1953.
Negligence — Manufacturer of inherently dangerous article — Liability to subpurchaser injured by latent defect — Based on negligence, not implied warranty — Charge to jury — Special request to charge before argument — Requesting party may not complain of charge on that issue, when — Omisssion from good charge, matter which might have been included — Not reversible error, when.
1. Where the plaintiff in a property damage action requests the trial court in writing to specifically charge the jury before argument on the subject of contributory negligence as affecting his right to recover, and the court does so charge, the plaintiff may not thereafter claim that the trial court erred in charging the jury after argument on the issue of contributory negligence, on the ground that such issue was not in the case.
2. 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 subpurchaser 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.
3. If a charge to a jury is otherwise good so far as it goes, the omission of some matter which might have been included is not fatal and does not constitute reversible error, unless the omission was called to the attention of the court and an instruction requested. ( Karr, Admr., v. Sixt, 146 Ohio St. 527, approved and followed.)
APPEAL from the Court of Appeals for Franklin county.
The plaintiffs, Kenneth T. Wood and Mildred Wood, brought this action against General Electric Company, hereinafter called General Electric, the Travelers Fire Insurance Company and the New Hampshire Fire Insurance Company to recover from General Electric damages in the sum of $36,189.28 for partial loss of their residence property and household goods and personal property located therein, and for the loss of rentals of such residence property, by reason of fire, claiming that such fire and consequent loss were caused by the use of plaintiffs of a defective and inherently dangerous electric blanket which had been manufactured and put upon the market by General Electric with the implied warranty that such blanket was of merchantable quality and reasonably fit for use as an article of bed clothing.
In a second cause of action the plaintiffs alleged that, after they had purchased the blanket in question and while using it for the purpose intended, it generated sufficient heat and fire from within the blanket to ignite other bed clothing and cause the fire and damage to plaintiffs' property, and that such fire and damage were proximately caused by the negligence of General Electric in certain specified particulars, among which were defective manufacture of the blanket, failure to inspect, and failure to warn.
Plaintiffs in their petition allege also that the defendant insurance companies, as insurers of this property, made settlement with them, and pray that such companies be required to answer and set forth what interest each has in the subject of the action.
The insurers filed answers and cross-petitions admitting that they were insurers against loss by fire of the residence property and personal property of the plaintiffs, and that they paid the plaintiffs the total sum of $26,321.55 in settlement of such loss. The companies pray for reimbursement, for the respective sums so paid, out of any recovery which may be adjudged against General Electric.
General Electric filed an answer admitting that it was engaged in manufacturing and selling electric blankets, denying that they were distributed through agents and that it was responsible for any fire which caused loss to plaintiffs' property, and alleging that, if it was in any way negligent as alleged in the petition, the plaintiffs themselves were negligent, which negligence directly and proximately contributed to cause any damage they sustained. A reply was filed by the plaintiffs denying negligence on their part.
The evidence submitted at the trial of the case tended to support the following facts:
In November 1946, plaintiffs purchased the blanket from an independent dealer. About December 15, 1946, the blanket was placed on Mr. Wood's bed located in their residence beyond the city limits of Columbus. He used the blanket each night until the fire occurred in the early hours of Sunday, February 2, 1947. At about one o'clock that morning he left his bed and went into the living room. In about 15 minutes Wood noticed an odor coming from his bedroom. He returned to the bedroom and discovered that the blanket was smoldering in three or four spots. There was no flame but the spots "glowed like a piece of punk." He "yanked" the blanket from the bed, pulled out the electric connection, "grabbed" the blanket in his arms, carried it out of the bedroom, closed the door and, after attempting to stamp out the burning places on a brick hearth in the living room, threw the blanket into the driveway.
Fifteen minutes later he returned to his bedroom where he found the mattress on the bed on fire. He attempted to extinguish the fire but, being unable to do so, called the fire department which extinguished the flames after considerable damage had been done to the residence and its contents. The insurance companies reimbursed Wood for the loss, to the extent above indicated.
A jury trial was had. At the close of plaintiffs' case, General Electric's motion for a directed verdict was overruled. This motion was renewed at the close of the entire case and was again overruled. The case was submitted to the jury after eight special instructions requested jointly by Wood and the insurance companies and a general charge. The jury returned a general verdict, nine members concurring, in favor of General Electric. A motion for new trial filed by Wood and the insurance companies was overruled.
From the overruling of the motion for new trial and the judgment entered on the verdict, an appeal was taken to the Court of Appeals for Franklin county, which reversed the judgment of the Common Pleas Court, on the ground that it erred in its general charge after argument, and remanded the cause to the Common Pleas Court for further proceedings.
The motion of General Electric to certify the record was allowed by this court and the cause is now here for review.
Mr. Richard V. Willcox and Messrs. Isaac Postlewaite, for plaintiff appellees.
Messrs. Ballard, Dresbach, Crabbe Newlon, for appellant.
The record discloses that the Court of Appeals reversed the judgment of the Common Pleas Court, on the ground "that the Court of Common Pleas erred in its general charge to the jury after argument." From the opinion of the Court of Appeals it appears that it concluded that in charging on contributory negligence the trial court did not limit the charge to the second cause of action based on negligence but applied it as well to the first cause of action based upon implied warranty and thereby may have erroneously precluded the plaintiffs' recovery on that cause of action.
The court, in its general charge, first read the pleadings to the jury and then charged the law as to the first cause of action. The court immediately charged the law as to the second cause of action and in that connection said:
"Now, members of the jury, further before plaintiffs could recover in this action in addition to those things which I have pointed out to you they must prove by that measure of proof which I have heretofore indicated, by a preponderance of the evidence, or greater weight of the evidence, plaintiffs' evidence must not show that they were guilty of contributory negligence, that is that they themselves did something that contributed to their own injuries complained of. If the evidence adduced by the plaintiffs gives rise to an inference of contributory negligence on their part then it is their duty to offer additional evidence to rebut or equalize the inference that has been created.
"The defendant, the General Electric Company, in their second defense set forth an alleged claim of contributory negligence. Members of the jury, with reference to this particular defense the burden of proof is upon the defendant, The General Electric Company, to show by a preponderance of the evidence negligence on the part of the plaintiffs which negligence directly and proximately contributed to cause the damage that they sustained or complained of." (Italics supplied.)
In this connection, it will be noted that the plaintiffs themselves requested the court to charge, before argument, on the subject of contributory negligence alleged in the defendant's answer to plaintiffs' second cause of action, and the court did so charge, as follows:
"Request No. VIII. You are instructed that the degree of care required by law of the plaintiffs, Kenneth T. Wood and Mildred Wood, is such care as ordinarily prudent persons would exercise under all of the circumstances which you find confronted the plaintiffs, and errors in judgment on the part of the plaintiffs in trying to meet the dangers do not constitute contributory negligence if the acts done were such as ordinarily prudent persons might have been expected to do under like circumstances even though the damages would not have occurred or might have been minimized, if the plaintiffs had acted differently."
The court did not in its general charge indicate that contributory negligence was a defense to the cause of action based upon implied warranty; neither did the plaintiffs' request to charge No. VIII indicate to which cause of action it related. The petition clearly shows that negligence was set out in the second cause of action, whereas the answer of the defendant likewise clearly shows that contributory negligence was set up as a defense to plaintiffs' second cause of action. These pleadings, together with the written requests to charge given before argument, were sent with the jury to the jury room and there is nothing in the record to indicate that the jury did not understand the issues or was confused by the charges relating thereto. In these respects, the charge of the court must be considered as a whole. Youngstown Municipal Ry. Co. v. Mikula, a Minor, 131 Ohio St. 17, 1 N.E.2d 135; Ochsner, Admr., v. Cincinnati Traction Co., 107 Ohio St. 33, 140 N.E. 644.
There is another reason why the charge of the court on contributory negligence was not prejudicial to the plaintiffs as it related to the subject of implied warranty. The blanket in question was purchased in the original package from an independent dealer. To support an implied warranty there must be contractual privity between the seller and buyer.
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 subpurchaser or his property from a latent defect therein, no action may be maintained against such manufacturer by such subpurchaser for such harm, based upon implied warranty of fitness of the article so purchased. 46 American Jurisprudence, 934, 937, Sections 810, 812; 2 Restatement of the Law of Torts, Sections 395 and 497; Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R., 667; Pelletier v. Dupont, 124 Me. 269, 128 A. 186, 39 A.L.R., 972; Kentucky Independent Oil Co. v. Schnitzler, Admr., 208 Ky. 507, 271 S.W. 570, 39 A.L.R., 979; Chysky v. Drake Bros. Co., Inc., 235 N.Y. 468, 139 N.E. 576, 27 A.L.R., 1533; Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N.W. 855, 60 A.L.R., 357; annotations, 63 A.L.R., 349, 88 A.L.R., 534, 142 A.L.R., 1494, and 164 A.L.R., 569. Here, there was no such privity and hence no implied warranty upon the part of General Electric and no valid issue on that subject.
Furthermore, the matter here complained of — the court's failure to specify that the charge on contributory negligence should be applied to the second cause of action — was a matter of omission, not of commission. In such a case, it is the duty of counsel for the party adversely affected to call the court's attention to any such omission. Otherwise it is waived. State v. McCoy, 88 Ohio St. 447, 450, 103 N.E. 136; Karr, Admr., v. Sixt, 146 Ohio St. 527, 67 N.E.2d 331.
The court, in the instant case, at the close of the charge said to counsel: "Now, may I ask counsel if they have any suggestions to offer with reference to the court's charge — counsel for the plaintiffs and also counsel for the defendant? If you wish to, come to the bench." Counsel for both parties, in response, conferred with the court on another phase of the charge but made no request concerning the matter complained of. Under the circumstances, the Court of Appeals erred in reversing the judgment of the trial court on this ground.
We also learn from the opinion of the Court of Appeals that, in its judgment, the language of the general charge was too broad in that "it does not include the proposition that the negligence of plaintiffs, to be contributory negligence, must be a proximate cause of the injuries complained of." In this respect, the court seems to have been factually mistaken. As will be noted from the portion of the general charge above quoted, the trial court, in stating that the burden of proof of contributory negligence was upon the defendant, qualified such negligence with the phrase, "which negligence directly and proximately contributed to cause the damage that they sustained or complained of." That was a sufficient statement on the subject.
The plaintiffs claim further that there were other errors in the trial of the case of which they complained before the Court of Appeals, which would have justified the reversal of the judgment of the Common Pleas Court but which the Court of Appeals disregarded, and that this court should sustain the reversal of the judgment on those grounds. There is no cross-appeal to this court by the plaintiffs but they take the position that these questions were covered in their assignment of errors in the Court of Appeals, and that such questions are still before this court in case this court should find that the reversal of the judgment by the Court of Appeals was in error as to the grounds upon which such reversal was predicated.
The plaintiffs claim the trial court committed reversible error in admitting the testimony of an expert witness who testified as to experiments conducted by use of a similar blanket under dissimilar circumstances from those in question in this suit. The Court of Appeals held that this was a matter calling for the exercise of a sound discretion on the part of the trial court, and that the admission of the testimony did not constitute reversible error. This court is in accord with that view.
The plaintiffs claim also that the issue of contributory negligence was not in this case, and that the trial court erred in charging on that subject. A sufficient answer to this complaint is that, before the trial court delivered its general charge, the plaintiffs requested the court in writing to give their requested charge No. VIII, as above quoted, on the subject of contributory negligence and the same was given as requested. In view of this request, the plaintiffs may not now complain in this regard.
It is the view of this court that the Court of Appeals erred in reversing the judgment of the Common Pleas Court. The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.
WEYGANDT, C.J., MIDDLETON, TAFT, MATTHIAS, ZIMMERMAN and STEWART, JJ., concur.