Kuelling v. Roderick Lean Mfg. Co.

• Decision Date: 21 November 1905
• Citation: 183 N.Y. 78,75 N.E. 1098
• Parties: KUELLING v. RODERICK LEAN MFG. CO.
• Court: New York Court of Appeals Court of Appeals

183 N.Y. 78

75 N.E. 1098

KUELLING

v.RODERICK LEAN MFG. CO.

Court of Appeals of New York.

Nov. 21, 1905.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Rinehart Kuelling against the Roderick Lean Manufacturing Company. From a judgment of the Appellate Division (88 N. Y. Supp. 1105,94 App. Div. 613), overruling plaintiff's exceptions and denying a new trial, and directing judgment for defendant on a nonsuit, plaintiff appeals. Reversed.Charles Van Voorhis, for appellant.

Cogswell Bentley and S. D. Bentley, for respondent.

BARTLETT, J.

This action has been twice tried. The first trial resulted in a verdict for the plaintiff in the sum of $3,040. The judgment entered on this verdict was reversed and a new trial ordered. The second trial resulted in a nonsuit, the trial judge ordering the plaintiff's exceptions to be heard in the first instance by the Appellate Division. The latter court overruled the exceptions, denied motion for a new trial and ordered judgment for the defendant upon the nonsuit. The Appellate Division wrote no opinion, but rested its decision on the opinion of McLennan, P. J., handed down on the first appeal. 88 App. Div. 309,84 N. Y. Supp. 622.

The plaintiff is a farmer, residing in East Penfield, Monroe county, in this state. The defendant is a foreign corporation, organized under the laws of the state of Ohio and engaged in the manufacture and sale of farming implements; its manufactory being located at Mansfield, in that state. A few weeks prior to April, 1902, the defendant sold to the firm of Weaver, Palmer & Richmond, who were engaged in the business of selling agricultural implements in the city of Rochester, a certain road roller, with a tongue to which was attached a team of horses when in use. A few days after this sale the purchasers sold the roller to the firm of Fuller & Barnhart, dealers in agricultural implements at Fairport, Monroe county, in this state. In April, 1902, the plaintiff purchased the road roller of the firm of Fuller & Barnhart, used it a short time in the spring on his farm, stored it in a covered shed until about the 1st day of the following September, when he had occasion to use it again in the conduct of his ordinary farm work, and while so engaged, with two horses attached thereto, the tongue broke, precipitating him from a seat which was attached to the rear end of the tongue immediately over the roller, causing the horses to run away. Plaintiff clung to the reins for a short distance, was compelled to release his hold, and the roller, weighing some 700 pounds, passed over him, inflicting severe injuries.

This action was brought by the plaintiff against the defendant as the manufacturer of this roller, and is based upon the allegation that in constructing it the defendant ‘intentionally, willfully, maliciously, negligently, and fraudulently’ put into it a tongue made of cross-grained black or red oak, which was unfit for that purpose; that the tongue had a knot in it, and in addition a large knothole, just in front of the point at which the evener and whiffletrees were attached; that the defendant concealed this knothole with a plug of soft wood nailed in, and then the knot, the plug, the hole, the cross-grain of the wood, and the kind of wood used were covered up and concealed by the defendant with putty and paint so that the defects could not be seen by inspection; that the tongue was placed in the roller, so that the knot and plug were on the underside; that the roller, by reason of these defects, was dangerous to the life and limbs of any person who should use it; and that the defects aforesaid made the tongue so weak that it broke as before stated at the time of plaintiff's injury and was the cause thereof.

A rather unusual state of affairs is presented in the history of this litigation. This action is based upon the allegation that the defendant ‘intentionally, willfully, maliciously, negligently, and fraudulently’ placed in this roller a tongue containing certain defects and concealing the same, as stated. It appears, however, that at the first trial the case was tried upon the theory of negligence, and the jury passed upon no other question. The jury rendered a verdict for the plaintiff in the sum of $3,040. The Appellate Division, on reviewing the judgment entered upon this verdict, stated in its opinion written by McLennan, P. J., as follows: ‘The case was submitted to the jury purely and simply as an action for negligence. While in the complaint it was alleged that the defendant ‘willfully, maliciously, negligently, and fraudulently’ put the defective tongue into the roller in question, intending that such implement should be sold in the open market, and concealed such defect, knowing that, when used, it would break and probably occasion injury to the person using it, that question was not left to the jury for determination. The learned trial court charged the jury in substance that no contractual relation or privity existed between the plaintiff and the defendant, that ‘the basis of the action is negligence,’ and that in order to recover the plaintiff was only required to establish, by a fair preponderance of evidence, that the accident was caused through the negligence of the defendant and without negligence on the part of the plaintiff. The court also charged that in order to establish defendant's negligence and entitle the plaintiff to recover it was necessary for the jury to be satisfied upon the evidence that the land roller in question, with the defective tongue, was a machine or implement imminently dangerous to human life, but charged, as matter of law, that a land roller was not intrinsically thus dangerous, but was an implement in ordinary and everyday use and of simple construction. The jury determined each of the questions submitted in favor of the plaintiff.'

The learned judge in his able opinion dealt only with the issue of negligence submitted to the jury. On the present appeal the counsel for the appellant presents what we deem the controlling question, the willful and fraudulent act of the defendant as alleged in the complaint. We will assume for the purposes of this case that this roller was not a machine imminently dangerous and likely to injure any person using it. We express no opinion as to the liability of the manufacturer or seller of a machine or vehicle to third parties in case of negligence, in the absence of fraud or deceit, whether the machine or vehicle be in its original state imminently dangerous to human life or made so by the subsequent act of the manufacturer or seller. The case at bar, in the view we take of it, does not involve the law of negligence, but is controlled by considerations resting upon the law applicable to willful and fraudulent deceit and concealment.

In England the Court of King's Bench in 1789 in the case of Paisley v. Freeman, 3 Durnford & East, 51, held that a false affirmation made by the defendant with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action upon the case in the nature of deceit. In such an action it is not necessary that the defendant should be benefited by the deceit or that he should collude with the person who is. In Upton v. Vail, 6 Johns. 181, 5 Am. Dec. 210, Chief Justice Kent, in commenting upon the case cited, said: ‘I have carefully examined the reasoning of the judges in that case and in the subsequent cases which go to question or support the soundness of that decision, and I profess my approbation of the doctrine on which it was decided. The case went, not upon any new ground, but upon the application of a principle of natural justice, long recognized in the law, that fraud or deceit, accompanied with damage, is a good cause of action. This is as just and permanent a principle as any in our whole jurisprudence.’ We have here the recognition of the general principle upon which this and similar actions must rest, to wit, that fraud or deceit with damage is a good cause of action.

In many of the cases presented to the courts under this principle of law the litigation is confined to the original parties concerned in the transaction. In the case before us we have a third party seeking damages by reason of the willful and fraudulent act of the defendant. The right of recovery under conditions similar to those now presented is established in this and other jurisdictions. In this state the principle is fully recognized in Brackett v. Griswold, 112 N. Y. 454, 20 N. E. 376. This was an action brought by one who purchased notes issued by the Iron Mountains Company of Lake Champlain, a corporation, against its directors for alleged fraud and conspiracy to induce the public, by means of false representations as to its financial condition, to purchase its stock and paper. This court held that there was no evidence that the purchaser in making the purchase relied upon any representations made by defendant, but, on the contrary, it affirmatively appeared that he was at the time wholly ignorant of the alleged fraudulent scheme, or of any acts or representations of the defendant or other parties to the alleged conspiracy. Judge Andrews, writing the opinion for the court, said: ‘This cause of action was substantially one for fraud and deceit by means of false pretenses, and the right of recovery is governed by the principles applicable to actions of that character. That this is the nature of the action was decided in thecase of Arthur v. Griswold, 55 N. Y. 400, which was also an action against the present defendant and others, the complaint in which set forth a cause of action similar to that alleged in the third count of the complaint in this action. The allegation that there was a conspiracy to commit the fraud does not affect the substantial ground of action. The fect the substantial ground of action. The conspiracy. The means by which a fraud is accomplished are immaterial except...