Opinion
14780
December 2, 1938.
Before GREENE, J., Spartanburg, June, 1938. Order modified and as modified affirmed.
Action by W.R. Ellis against Montgomery Crawford, Inc., for injuries sustained by the plaintiff allegedly as a result of breach of warranty of fitness of a riveting hammer purchased by the plaintiff from the defendant. From an order sustaining the demurrer and dismissing the complaint, the plaintiff appeals.
Order of Judge Greene follows:
The plaintiff has sued for $5,000.00 damages for the destruction of his eye by a fragment flying from a riveting hammer purchased from the defendant. He is a mechanic, and the defendant is a retail hardware merchant. The theory of the complaint is that the plaintiff's loss of his eye was the natural and proximate result of the breach of the implied warranty of fitness and soundness arising from the sale of the hammer for a sound price. The defendant moved to strike certain allegations of the complaint, and demurred for insufficiency of facts apparent on the face of the complaint to constitute a cause of action. The motion to strike and the demurrer were heard at the January, 1938, term, and both sides submitted exhaustive written briefs which I have since carefully studied.
I will first dispose of the motion to strike.
The complaint, in Paragraphs 1, 2 and 3, alleges that defendant is a corporation operating a retail hardware store, selling, among other things, tools used by mechanics; that plaintiff is a mechanic, and was known to defendant as such; and that, on March 16, 1937, plaintiff bought from defendant for a sound price a hammer of a special type known as a riveting hammer. Paragraph 4 alleges an implied warranty of soundness and fitness, and Paragraph 5 says the warranty was breached in that, the day after its purchase, while being used as intended, a particle flew from it into plaintiff's eye, completely destroying it. Contending that the foregoing facts comprise all the primary facts permissible by way of allegation in the complaint, defendant aims its motion to strike at the quoted portions of Paragraph 3, and the whole of Paragraph 6 of the complaint. After alleging the purchase of the hammer, Paragraph 3 continues: "That hammers designed and sold in the hardware trade as riveting hammers are intended for use by mechanics in driving home rivets and in hammering on the head of a cold chisel and in working upon metals of various kinds; that such work requires that blows with the hammer be delivered at times with great force, and that work of that nature requires also direction by the eyes of the mechanic using the hammer so that the eyes of the mechanic must be in nearness to the hammer as it strikes the cold chisel or the other object being hammered upon, and so that the mechanic's eyes are likely to be injured by any particle or portion of the hammer that might become detached therefrom and have communicated to it the great force of the momentum given to the hammer while being so used: that a hammer from which particles or portions would fly would not be sound and fit and suitable for the purpose for which it is bought and for which the price was paid; that the facts above set out were well known to the parties at the times herein referred to; that it was in contemplation of the parties that the hammer purchased by plaintiff from defendant aforesaid was being purchased and was sold for the uses and purposes aforesaid, and would be used by plaintiff as aforesaid and that its fitness and suitability for the said uses and purposes depended, among other things, on its holding and remaining together and intact while being used, and that the flying off of particles or portions therefrom would reasonably be expected, as a natural and proximate consequence resulting therefrom, to cause injury as above alleged."
Paragraph 6 reads: "That the injury and damage to plaintiff aforesaid resulted naturally and proximately from the failure of the warranty of fitness, suitability and soundness aforesaid to plaintiff's damage as aforesaid."
I think it a well-established rule that a recovery of damages for personal injuries in an action upon a breach of warranty may be had only where such injuries are the natural and probable result of the breach, and such as may reasonably be considered to have been within the contemplation of the parties at the time the sale was made. And, in the allegations challenged by the motion to strike, it seems that the pleader undertakes to anticipate the functions of the Court and the jury by asserting in argumentative form and by way of legal conclusion, the applicability of the rule to the facts of his case. With these allegations out, plaintiff could introduce all the testimony that would be competent with them in. I think they go too far in the way of argument and conclusion, and that they should be stricken.
It is so ordered.
At the hearing before me, it was agreed by counsel in open Court that I should pass upon the question presented by the demurrer without regard to the construction of the complaint whereby it might properly be held to state a cause of action for damages measured by the price paid for the hammer, inasmuch as, according to the statement of plaintiff's counsel, if he were not allowed to recover for his personal injuries, it should be taken and deemed that defendant had tendered the purchase price.
Our decided cases, so far as I have found or counsel have cited, afford no answer to the main question whether, in cases of the sale of a standard article in common use, not inherently dangerous, simple in form and design, with no structural or other defect discoverable by careful inspection, and where seller and buyer had equal capacity and opportunity to inspect and recognize a possible defect, the buyer may recover of the seller damages for personal injuries resulting from some defect not known to or discoverable by either. As I said in passing on the motion to strike, I think the established rule to be that recovery may be had only when the personal injuries are the natural and probable result of the breach of the warranty of soundness, and such as might reasonably be considered actually within the contemplation of the parties at the time of the sale.
It is difficult for me to understand how any such "natural or probable result" could be in contemplation of the parties at the time of the sale where the article sold is in common use, simple in design, free from any appearance of danger in construction or contemplated use, and not inherently dangerous. It would, under such circumstances, be in the minds of both parties that injury could result only from some unthought-of unforeseen combination of circumstances.
The Court knows that hammers of various types are simple tools on sale in thousands of retail stores, in constant and common use, and not ordinarily thought of in connection with splintering or breaking down with results so unfortunate as those experienced by the plaintiff here. And, in view of the widespread and continuous use of hammers throughout the world and for so many years, the instant result of the use of one would necessarily seem to be ascribable only to an unforeseeable accident, wholly without the contemplation of the parties at the time of its purchase.
There are few articles of merchandise less apparently likely to cause injury from proper use than a hammer. Yet there are uncounted varieties of articles in common and constant use which could cause personal injuries with as much or more probability than a hammer would. It seems to me that to hold the defendant liable here would establish a general principle of law very far-reaching in its effects. It would make retailers of the most simple, common, ordinary, and most used household and other articles absolute insurers of the infallibility of manufacturers, middlemen, raw-material suppliers, and of every process and design, as well as of every agent and employee directly or remotely connected with furnishing materials, directing manufacturing processes, inspecting materials or work, packaging, transporting or in any way handling any article he resells. It would ascribe to a retail merchant a comprehensive consciousness of an infinity of circumstances and accidents which may properly be ascribed to omniscience alone. He would be held to have foreseen and contemplated occurrences and happenings whose possibility is limited only by the limits which bound the possible.
This would establish a rule so harsh in its application to retail merchants that its effects can only be seen in vague outline. The number and variety of articles for retail sale listed in the mail-order catalogs of the many important and nationally known merchants will indicate the reach of such a rule.
All of our general rules of law have developed out of a long experience illustrated by a wise public policy. While the "Master and Servant" doctrine has no controlling application, the justice, reason and humanity of that doctrine may be invoked as justifying the refusal to apply a harsher doctrine to retail merchants, whose relationship to their customers seemingly does not imply as great responsibility. Our "Master and Servant" cases do show conclusively that, while it is the master's non-delegable duty to furnish reasonably safe instrumentalities, where the servant knows as much of the safety and suitability of the simple tool furnished as the master does, he cannot hold the master responsible for defects not discoverable by the reasonable diligence of either. And I think it will not be disputed that, had plaintiff been the employee of a mechanic, and had his employer bought the hammer involved and furnished it to him, and the same deplorable injury had resulted, plaintiff would have had no cause of action against his employer.
I can see no reason compelling the adoption of a rule which would make all retailers absolute insurers against undisclosed and undiscoverable defects in the articles they sell, — which would make them involuntary insurers of all who had before sustained any relationship whatever to the article sold.
While it was not assigned as a formal ground in the written demurrer, defendant's counsel argued that, since the doctrine of res ipsa loquitur is not of force in this State, the complaint was further insufficient in failing to allege facts showing a failure of the hammer; and that the complaint would have stated no cause of action even against the manufacturer of the hammer, in that it stated no facts from which actionable negligence in manufacture could be inferred. While that doctrine may be limited to tort actions, nevertheless the argument is not without force even in a case like this. Certainly, if the one responsible for the defect could not be held, it would seem unjust to visit the consequences of the defect upon one who had nothing to do with creating it, could not find it out, and had no reason to suspect it. I think the case should be decided on the broader ground hereinbefore indicated, but it is pertinent to ask whether, in the absence of facts alleged to show the existence of a defect, a cause of action for breach of implied warranty has been stated.
The most persuasive case I have read or which has been cited is Birdsinger v. McCormick Harvesting Machine Co., 183 N.Y., 487, 76 N.E., 611, 5 Ann Cas., 586, reported, with a case note in 3 L.R.A. (N.S.), 1047. The case note is supplemented in 13 A.L.R., 1176, and 74 A.L. R., 343.
This was a case against the manufacturer of a corn husking machine, equipped with "snapping rollers" to shuck the corn, which in use became clogged ever so often, and, for that reason had a "safety lever" to shift the gears so that the rollers might be cleaned. It was sold on this warranty (page 612): "McCormick Harvesting Machine Co., warrants this machine to do good work, to be well made, of good materials, and to be durable if used with proper care."
Clearly it was a machine with a known dangerous feature, the danger being counterbalanced with a "safety lever". Injury might have been contemplated from a defect in the gears or lever. The plaintiff, operating the machine, shifted the gears and started to clean the rollers. One of the gears broke, and the rollers began rotating, catching plaintiff's hand and injuring it so that it had to be amputated. The trial Court, the Appellate Division and the Supreme Court (Court of Appeals) for New York unanimously held the manufacturer not liable.
The Court said (page 613):
"`The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract; that is, must be such as might naturally be expected to follow its violation.' * * * It may be difficult to define the line of remoteness of damage; but it approaches to definiteness to say that, where the warranty is general, such damages only are recoverable as the parties, standing chargeable with the knowledge of their legal rights and duties, may be deemed to have had in contemplation, when making their contract, as the result of the warranty being untrue. That which is an effect of the breach in a certain sense, but is removed one stage from it, is not the primary, but the secondary, consequence of it. This action is based upon the contract, and in such a case, where there has been no fraud, the recovery is to be measured by a compensation to the vendee for the natural and proximate consequences of the breach by the vendor of his warranty, in the failure of the article to meet the representation as to its quality, which would be the difference between the value of the article as warranted and its actual value."
After pointing out that the machine would be defective in breach of the warranty, if it failed to husk corn or if it injured the ear in the husking and that the measure would be the difference between the price paid and the junk value, the Court said: "It is neither a sensible nor a natural conclusion for the mind to reach that the party supposed, the buyers that they were getting, the seller that it was giving, an insurance against accidents to the person possibly consequent upon a breaking down of the machine."
So, here, would it be sensible or reasonable to assume that the seller had in mind that in a few days the plaintiff would lose his eye because a fragment flew from the hammer. The cited case is stronger in favor of recovery than the instant case.
The "food and drink" cases have no value as precedents here. They depend on special statutes. But even they require allegation and proof of negligent preparation. See Delk v. Liggett Myers Tobacco Co., 180 S.C. 436, 186 S.E., 383. Neither do the cases involving express warranties against specified eventualities have any bearing, — like where a horse is sold warranted to be gentle, or an acetylene tank warranted to be constructed not to explode; nor a flash light powder warranted non-explosive; nor a fertilizer guaranteed to contain no harmful ingredients. A different principle governs such cases.
Recovery was denied in Rode v. Arney, 115 Ill. App., 629, where the purchaser of a wagon which broke on account of a defect and injured his wife sought damages for the loss of her services; and in Schurmeier v. English, 46 Minn., 306, 48 N.W., 1112, where the purchaser of a wagon sought damages for the death of a horse resulting from a defect in the wagon; and in Hasbrouck v. Armour Co., 139 Wis. 357, 121 N.W., 157, 23 L.R.A. (N, S.), 876, where the retailer sold a cake of soap with a needle embedded in it which ordinary careful inspection would not have discovered; and in Miller v. Svensson, 189 Ill. App., 355, where the purchaser of a fur coat was cut by the furrier knife which had been sewed up in the lining; and in Clement v. Rommeck, 149 Mich., 595, 113 N.W., 286, 13 L.R.A. (N.S.), 382, 119 Am. St. Rep., 695, where a dealer who bought stove polish in an open market who supposing it to be safe, sold it to a purchaser who was injured by its explosion.
In Kress Co. v. Lindsey, 262 F., 331, 13 A.L.R., 1170, the United States Circuit Court of Appeals for the Fifth Circuit denied recovery for death of a purchaser of an anthrax contaminated shaving brush, saying: "The damages to be recovered for breach of warranty of a shaving brush are limited to a return of selling price and shipping charges, under a contract guaranteeing that the merchandise sold shall represent full value."
The editor on page 1184 of the note in 13 A.L.R., says: "Apart from an implied warranty, where negligence of the dealer is not shown, he is not liable for personal injuries received by the buyer of an article not inherently dangerous, but which, unknown to both the seller and the buyer, is dangerous for the purpose for which it is sold owing to some defect therein."
I think reason and authority sustained the annotator's analysis of the cases.
The demurrer is therefore sustained and the complaint dismissed.
Messrs. Carlisle, Brown Carlisle, for appellant, cite: As to irrelevant allegation: 174 S.C. 497; 178 S.E., 131; 180 S.C. 19; 185 S.E., 25. Damages: 166 S.C. 400; 164 S.E., 895. Knowledge: 91 S.C. 417; 74 S.E., 1067; 87 S.C. 95; 68 S.E., 1045; 177 S.C. 295; 181 S.E., 1; 182 S.C. 347; 189 S.E., 355. Breach of implied warranty: 166 S.C. 400; 164 S.E., 895; 161 S.C. 40; 159 S.E., 461; 128 S.C. 344; 122 S.E., 858; 117 S.C. 140; 108 S.E., 401; 63 S.W. 433; 98 A.S.R., 406; 54 L.R.A., 417; 27 A.L.R., 1504; 74 A.L.R., 345; 13 A.L.R., 1181.
Messrs. Lyles Daniel, for respondent, cite: Implied warranties: 55 C.J., 716; 24 R.C.L., 509; 3 L.R.A. (N.S.), 1047; 23 L.R.A. (N.S.), 876; 13 L.R.A. (N.S.), 382; 154 S.W. 1092; 66 S.E., 135; 71 So., 743; 13 A.L.R., 1170; 74 A.L.R., 343.
December 2, 1938. The opinion of the Court was delivered by
The facts upon which this litigation is founded are stated in the order of Judge Greene, from which this appeal comes to this Court, which order will be reported and, hince, need not be repeated here.
We are in accord with the order of Judge Greene, with the exception of a slight modification. The opinion of the learned Circuit Judge as thus expressed is too broad:
"The Court knows that hammers of various types are simple tools on sale in thousands of retail stores, in constant and common use, and not ordinarily thought of in connection with splintering or breaking down with results so unfortunate as those experienced by the plaintiff here. And, in view of the widespread and continuous use of hammers throughout the world and for so many years, the instant result of the use of one would necessarily seem to be ascribable only to an unforeseeable accident, wholly without the contemplation of the parties at the time of its purchase.
"The are few articles of merchandise less apparently likely to cause injury from proper use than a hammer. Yet there are uncounted varieties of articles in common and constant use which could cause personal injuries with as much or more probability than a hammer would. It seems to me that to hold the defendant liable here would establish a general principle of law very far-reaching in its effects. It would make retailers of the most simple, common ordinary, and most used household and other articles absolute insurers of the infallibility of manufacturers, middlemen, raw-material suppliers, and of every process and design, as well as of every agent and employee directly or remotely connected with furnishing materials, directing manufacturing processes, inspecting materials or work, packaging, transporting or in any way handling any article he re-sells. It would ascribe to a retail merchant a comprehensive consciousness of an infinity of circumstances and accidents which may properly be ascribed to omniscience alone. He would be held to have foreseen and contemplated occurrences and happenings whose possibility is limited only by the limits which bound the possible.
"This would establish a rule so harsh in its application to retail merchants that it effects can only be seen in vague outline. The number and variety of articles for retail sale listed in the mail-order catalogs of the many important and nationally known merchants will indicate the reach of such a rule."
We do not think that a trip hammer comes under the definition of a simple tool. It may not be complicated in its construction, but it is somewhat complicated in its use, as distinguished from a simple claw hammer. That it may produce injury in its use is recognized by respondent's attorneys, who say in their answer, that the injury was solely due to the improper use of the hammer, "and to his negligent and careless failure to properly protect his eyes with goggles, as is the usual custom of mechanics when striking steel on steel or iron on iron in close proximity, and which is recognized as a usual and reasonably necessary part of the equipment of such mechanics, and a reasonable and necessary precaution under such circumstances of use as are described in the complaint."
If, then, the dealer is selling to an inexperienced person not accustomed to the use of a trip or riveting hammer and does not know of the danger from striking steel on steel, or iron on iron, and the dealer does know of such danger, it might be that the dealer might be liable under an implied warranty if he did not warn the purchaser of the danger in the use of the instrument, which he impliedly warrants one to be suitable for the use for which it is intended.
This leads the Court to think that that language of the Circuit Judge above quoted is too broad in its scope and application.
However, what we have said has no application to the present case. The appellant alleges in his complaint that he is a mechanic, a fact known to defendant; that the dangers of the use of a riveting hammer are well known to defendant. There is no allegation of fraud, deceit or concealment of defects, or misrepresentation to mislead the buyer, who had equal opportunity with the seller to inspect the article.
"The ground of liability is the seller's superior knowledge of the dangerous characteristics of the article sold, and where it appears that the person injured was as fully cognizant of the peril as the defendant seller or manufacturer there can be no recovery. * * *" 24 R.C.L., 510, Sec. 803.
It is certain that the seller and buyer in this case were equally well informed of the use of the riveting hammer; that the appellant had equal opportunity for the examination of the article. There was no fraud or misrepresentation.
The exceptions are overruled and the order of the Circuit Court, with the modification herein made, is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.