Scurfield v. Fed. Labs., Inc. , 335 Pa. 145 ( 1939 )

It seems to me the statement of claim clearly alleges actionable negligence. It is there averred that defendant manufactured a dangerous weapon in the guise of an ordinary fountain pen, with no safety device and with nothing to give warning of its dangerous quality; that defendant sold the pen to Vollmer with an express representation that it was harmless and would cause no permanent injury, when in fact defendant knew or should have known that permanent injury to innocent persons might result; that relying on this representation, the pen was placed by Vollmer within easy reach, where it might properly have been placed had it been as represented; and that plaintiff, a business invitee, was attracted by its appearance and inspected it with the consequent discharge of the cartridge into his face and eyes, and resulting permanent injury.

There is nothing in the statement of claim to support the conclusion of the majority that "when the gun was sold to Vollmer, he was fully informed of its nature and purpose." On the contrary, it is specifically alleged that defendant represented to Vollmer that the article was harmless when it knew or should have known permanent injury would probably result from its actual use by persons not acquainted with its dangers. It seems quite clear that defendant's negligence was the substantial factor in causing the harm. The defendant cannot escape liability because of intervening human actions which were easily foreseeable as the normal responses to defendant's negligent act: Shaffer v. Mowery, 265 Pa. 300;Quigley v. Del. H. Canal Co., 142 Pa. 388; Dannenhower v.Western Union Telegraph Co., 218 Pa. 216; Whinney v. ReadingCo., 95 Pa. Super. 135.

It is difficult to conceive of an article more potentially dangerous than a weapon, capable of inflicting serious injury, which is deliberately disguised in the form of an innocuous everyday article. It is certainly foreseeable that if the manufacturer does not warn the purchaser of the damage it is capable of doing, the purchaser will not take necessary precautions to prevent others from handling it. Obviously, the principal value of a tear gas gun disguised as a fountain pen lies in the fact that it may be placed where one would ordinarily place a fountain pen, within easy reach, so that its use may be resorted to without attracting suspicion. Under the circumstances it was not at all unusual that plaintiff, a normally inquisitive person, should pick up the pen to examine it and be seriously injured.

The factual situations in the two cases cited by the majority to sustain their position are not at all analogous. InJacob v. Phila., 333 Pa. 584, we affirmed the refusal of the court below to take off a nonsuit, where the negligence alleged was that the cellar doors in front of the defendant's premises were permitted to remain open and were not properly held together. The doors were well beyond the plaintiff's line of travel, but he seized hold of them to save himself as he slipped on the ice. We quite properly held that the defendant was not bound to anticipate the sequence of events leading up to that injury. In Paulscak v. Hoebler, 330 Pa. 184, the defendant placed heavy electric sign boards and machinery on top of an old building and the vibrations from the operation shook the building and weakened the wall, causing it to collapse and injure the plaintiff, a tenant therein. In affirming a verdict for the plaintiff in the Paulscak case, supra, this court said (p. 192): "The question whether a person charged with negligence or negligent acts or omissions should have foreseen the injuries resulting from these acts or omissions is for the jury, if there is any credible evidence from which a reasonable conclusion can be drawn in support of the claim of neglect of duty." Yet, the majority cite this case to support a decision, which deprives plaintiff of the opportunity to produce credible evidence in support of his allegations of defendant's negligence, and of having the jury pass upon the question of foreseeability.

Here the actions of Vollmer and plaintiff were reasonably to have been anticipated, and in the retrospect their intervening acts do not appear to be unusual or extraordinary. There is not the slightest doubt in my mind that the negligence of defendant was the proximate cause of the accident. It comes well within the definition of proximate cause laid down by Mr. Justice MESTREZAT in Wallace v. Keystone Automobile Co., 239 Pa. 110,117: "The proximate cause of an accident imposing liability is the dominant and efficient cause which acts directly or necessarily sets in motion other causes, not created by an independent agency, and which naturally and reasonably results in injury which as a consequence of the primary act, under the circumstances, might and ought to have been anticipated in the nature of things by a man of ordinary intelligence and prudence, although, in advance, it might have seemed improbable and the precise form in which the injury actually resulted could not have been foreseen. The succession of connected events springing out of the primary causal act, and not time or distance intervening between it and its injurious consequences, is, except as bearing upon the question of improbability, the test in the application of the rule." Defendant's negligence was not excused by the intervening acts because they should have been foreseen: Welser v. United GasImprovement Co., 304 Pa. 227; Darrah v. Wilkinsburg Hotel Co.,318 Pa. 511; Kline v. Moyer and Albert, 325 Pa. 357; Lane v.Atlantic Works, 111 Mass. 136. The principle has been consistently applied in situations such as the instant case, where suppliers of dangerous chattels are alleged to be negligent: Elkins v. McKean, 79 Pa. 493; Shaffer v. Mowery, supra; Waters-Pierce Oil Co. v. Deselms, 212 U.S. 159;Rosebrock v. General Electric Co., 236 N.Y. 227; Anglo-CelticShipping Co. v. Elliott Jeffery, 42 T. L. R. 297; Farrant v.Barnes, 11 C. B. (N.S.) 553.

I think the particularity of pleading here demanded is not required under our modern practice. In my judgment, averments as to the exact circumstances under which plaintiff handled the pen, and the different effect, if any, which the tear gas would produce when discharged at a very close range as distinguished from what the majority term a discharge "in the normal way" are properly evidential facts for the jury and are not required to be set forth with meticulous detail in the statement of claim. By section 5 of our Practice Act of May 14, 1915, P. L. 483, it is provided: "Every pleading shall contain, and contain only, a statement in a concise andsummary form of the material facts on which the party pleading relies for his claim, . . . but not the evidence by which theyare to be proved, or inferences, or conclusions of law . . .." (Italics added.) The Act requires that only the ultimate material operative facts constituting the plaintiff's cause of action be alleged. Evidential facts should not be pleaded:Davis v. Investment Land Co., 296 Pa. 449; Clark, Code Pleading, 150. In Electric Reduction Co. v. Colonial Steel Co.,276 Pa. 181, 186, Mr. Justice SCHAFFER, in speaking for this court, said: "The Practice Act of May 14, 1915, P. L. 483, does not require the details of matters intended to be proved, or the evidence relied on, to be set forth in the pleadings."

The judgment of the court below should be reversed.

Mr. Justice STERN joins in this dissent.