W. T. Pate Auto Co. v. W. J. Westbrook Elevator Co. , 142 Miss. 419 ( 1926 )

^* Corpus Juris-Cyc. References: Negligence, 29 Cyc., p. 479, n. 88, 88 New; On liability of a manufacturer or vendor to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of articles he handles, see notes in 2 L.R.A. (N.S.) 303; 5 L.R.A. (N.S.) 1103; 17 A.L.R. 708; 24 R.C.L., pp. 512-519; 3 R.C.L. Supp. 1373; 4 R.C.L. Supp., 1543; 5 R.C.L. Supp., p. 1290. This is an appeal from a decree of the chancery court of the First district of Hinds county, sustaining a demurrer to the amended bill of complaint filed by the W.T. Tate Auto Company against the W.J. Westbrook Elevator Company. The amended bill of complaint alleges:

That "the complainant did lease of and from W.T. Pate that certain building on the southeast corner of Pearl and Farish streets; that in the building so thus leased was an elevator purchased by the said W.T. Pate from said non-resident defendant; that an elevator is a thing that is obvious to the seller thereof; that a defect therein will likely result in injury to those using it; that said elevator so furnished by said Westbrook Elevator Company to said W.T. Pate was made of defective and inferior materials and workmanship, and that on or about the — day of December, 19__, when same was being operated by complainant in this case in a prudent manner, by reason of said defects, certain cogs and gearing broke and stripped, causing said elevator to fall a distance of some thirty feet; and that at the time of such fall there was on the said elevator a certain employee of the said W.T. Pate Auto Company who was seriously injured."

It is further alleged that by reason of the falling of the elevator, resulting in injury to its employee, the complainant was rendered liable to the employee for the failure to furnish him a safe place to work, and that it compromised and settled this liability for the sum of two thousand dollars. It is also alleged that at the time the elevator fell there was a Lincoln automobile thereon which was damaged to the extent of four hundred dollars, and that, under the contract between the complainant and W.T. Pate, the complainant was required to repair the elevator at a cost of seven hundred dollars, and the bill prays for a decree against the defendant for the total of these several items.

To this amended bill of complaint the defendant filed a demurrer, averring that there was no equity on the face of the bill; that there was no privity of relation between Pate Auto Company and the elevator company; that the elevator company owed no duty to the auto company, and that the auto company had no cause of action against it for the alleged breach of duty to W.T. Pate; that the complainant was not subrogated to any right of action which W.T. Pate might have against the elevator company for the alleged negligence in the construction of said elevator; and that the elevator was not in its nature imminently dangerous. The demurrer was sustained, and, the complainant declining to amend, the bill was dismissed, and from this decree this appeal was prosecuted.

There is a conflict in the authorities upon the question of whether or not a contractor, manufacturer, or vendor of an article is liable to third parties who have no contractual relations with him, for negligence in the construction, manufacture, or sale of such articles. The line of cases which hold that one who manufactures an article or machine, which is rendered imminently dangerous by reason of negligent construction, is liable to third parties for injuries or damage resulting from such negligence, is illustrated in the cases ofMcPherson v. Buick Motor Co., 111 N.E. 1050, 217 N.Y. 382, L.R.A. 1916F, 696, Ann. Cas. 1916C, 440, and Johnson v.Cadillac Motor Co. (C.C.A.), 261 F. 878, 8 A.L.R. 1023, and authorities therein cited.

The opposite view is held by the United States circuit court of appeals in the eighth circuit in the case of Huset v. J.I.Case Threshing Machine Co., 120 F. 865, 57 C.C.A. 237, 61 L.R.A. 303, in an opinion by Judge SANBORN, which reviews all the leading English and American decisions on the subject up to that date, and announces the general rule to be that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles. To this general rule the opinion in the Huset case, supra, announces that there are three well defined and settled exceptions — the first being that an act of negligence of a manufacturer or vendor, which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, such as drugs or food, is actionable by third parties who suffer from the negligence; the second exception recognized is that "an owner's act of negligence which causes injury to one who is invited by him to use his defective appliance upon the owner's premises may form the basis of an action against the owner;" while the third is "that one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another, without notice of its qualities, is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not."

Upon the averments of the bill of complaint in the case at bar, however, we do not deem it necessary to decide what are the limits of the liability of manufacturers and vendors for negligence in the manufacture and sale of an article. An examination of the various cases 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 liability 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, while in the bill of complaint in the present case there is no averment of fraud or concealment, or that the defendant was negligent in any respect in the manufacture or construction of the elevator, or that the defendant knew of any defect in workmanship or material, or could have discovered the same by reasonable inspection. The only charge in the bill of complaint is the general one that the elevator was made of defective and inferior material and workmanship, and that by reason of said defects it was caused to fall. There is no averment of facts from which the inference of negligence necessarily arises, and we think the demurrer to the bill of complaint was properly sustained.

Affirmed.