Citation Numbers: 6 A.2d 559, 335 Pa. 145
Judges: OPINION BY MR. JUSTICE SCHAFFER, May 16, 1939:
Filed Date: 3/29/1939
Status: Precedential
Modified Date: 1/13/2023
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, *Page 152 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,
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. *Page 153
The factual situations in the two cases cited by the majority to sustain their position are not at all analogous. InJacob v. Phila.,
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.,
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 *Page 155
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.,
The judgment of the court below should be reversed.
Mr. Justice STERN joins in this dissent.
Elkins, Bly & Co. v. McKean , 79 Pa. 493 ( 1875 )
Paulscak v. Hoebler , 330 Pa. 184 ( 1938 )
Welser v. United Gas Imp. Co. , 304 Pa. 227 ( 1931 )
Jacob v. Philadelphia , 333 Pa. 584 ( 1939 )
Kline v. Moyer and Albert , 325 Pa. 357 ( 1937 )
Davis v. Investment Land Co. , 296 Pa. 449 ( 1929 )
Waters-Pierce Oil Co. v. Deselms , 29 S. Ct. 270 ( 1909 )
Darrah v. Wilkinsburg Hotel Co. , 318 Pa. 511 ( 1935 )
Whinney v. Reading Co. , 95 Pa. Super. 135 ( 1928 )
Dannenhower v. Western Union Telegraph Co. , 218 Pa. 216 ( 1907 )
Wallace v. Keystone Automobile Co. , 239 Pa. 110 ( 1913 )
Electric Reduction Co. v. Colonial Steel Co. , 276 Pa. 181 ( 1923 )