Hollenbeck v. Ramset Fasteners, Inc.

148 S.E.2d 287 (1966) 267 N.C. 401

Orville S. HOLLENBECK
v.
RAMSET FASTENERS, INC., a Corporation, (Ramset Division—Olin Mathieson Chemical Corporation), and Acousti Engineering of Carolinas, Inc., also known as Acoustics, Inc.

No. 288.

Supreme Court of North Carolina.

May 25, 1966.

Carswell & Justice, by James F. Justice, Peter L. Reynolds, Charlotte, for plaintiff appellant.

Boyle, Alexander & Carmichael, by R. C. Carmichael, Jr., Charlotte, for defendant appellee.

PLESS, Justice.

Since the manufacturer of the powder actuated tool is not a party, the doctrine of implied warrant is not available to the plaintiff. He seeks to recover of the seller upon the alleged breach of an express warranty as summarized in the statement of facts. In Nationwide Mutual Insurance Co. v. Don Allen Chevrolet Co., 253 N.C. 243, 116 S.E.2d 780, Bobbitt, J., speaking for this Court said:

"``* * * any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon.'"

That case cites Underwood v. Coburn Motor Car Co., 166 N.C. 458, 82 S.E. 855 which says:

"An express warranty is defined (as) * * *: ``When the seller makes affirmation with respect to the article to be sold, pending the treaty of sale, upon which it is intended that the buyer shall rely in making the purchase. * * * A warranty consists in representations and statement of and concerning conditions and quality of personal property, the subject of sale made by the person making the sale to induce and bring it about.'"

Stating it another way: a seller is bound by an express warranty when, and only when, it is made to induce a sale and does induce such sale.

The plaintiff testified that the alleged warranty was made in 1957 but stated on cross examination that, "this particular tool I had used first in 1955 about three and one-half years before the accident." Nowhere does he say that the alleged warranty induced the sale or that he, or his employer, relied upon it.

A salesman is permitted to "puff his wares" and, in saying that a powder actuated tool is safe has merely expressed an opinion. There is no such thing as a safe shotgun or circular saw. Neither can a tool that, with the use of a powder charge, forces a steel bolt into concrete be termed "safe." They are necessarily and inherently dangerous and can be safe only when used with great care and caution.

Even if the plaintiff's evidence justified the finding of an express warranty, he has shown no breach of that warranty except the fact of his injury. His own evidence establishes that he had been using a similar tool for some seven years and had fired it more than four thousand times. The particular tool used on the date of his injury had been used by him "for the last year or so", and on the day of the accident he had successfully used it three times prior to being injured with the fourth pin.

The plaintiff also complains that Henderson did not warn him of the possibility of ricochet. While it is true that Henderson testified as to two cases of ricochet with a similar tool, plaintiff's evidence does not show that the salesman had this knowledge at the time of the sale. The evidence does affirm, and specifically so, that each of the several thousand times the plaintiff picked up the tool, he was confronted with the printed statement on the shield which warned of a possible ricochet. He could hardly expect more impressive notice than this and exceptions relating thereto are overruled.

Neither can the plaintiff recover upon the theory of res ipsa loquitur. In 38 Am.Jur. § 299, p. 995, it is said:

"The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it * * *. The inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person. If the circumstances do not suggest or indicate superior knowledge or opportunity for explanation on the part of the party charged, or if the plaintiff himself has equal or superior means of information, the doctrine will not apply."

In view of the use by the plaintiff of this tool or a similar one for some seven years and four thousand "shots", it would be unreasonable to assume that the defendant had knowledge superior to the plaintiff's in regard to the use or condition of the tool.

We have given full consideration to all the arguments and contentions advanced by the plaintiff, but can find no basis upon which to hold the defendant liable.

Plaintiff's assignments of error are, therefore, overruled, and the judgment below granting the defendant's motion for nonsuit at the close of the plaintiff's evidence is

Affirmed.

PARKER, C. J., concurs in result.

MOORE, J., not sitting.