189 So.2d 113 (Miss. 1966), 44023, State Stove Mfg. Co. v. Hodges

Docket Nº:44023.
Citation:189 So.2d 113
Case Date:July 08, 1966
Court:Supreme Court of Mississippi

Page 113

189 So.2d 113 (Miss. 1966)



Herbert H. HODGES et ux.

No. 44023.

Supreme Court of Mississippi.

July 8, 1966

Page 114

Butler, Snow, O'Mara, Stevens & Cannada, Lawrence J. Franck, Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellants.

Threadgill & Hicks, W. H. Jolly, Columbus, for appellees.

ETHRIDGE, Chief Justice.

Yates and Gary, contractors, built a home for Herbert H. and Frances Hodges in Webster County, west of Eupora, for a

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contract price of $11,600. The contractors, who turned the house over to the Hodges in late November 1962, installed in it an electric hot water heater, manufactured by appellant, State Stove Manufacturing Company of Ashland City, Tennessee, which sold the heater to Orgill Brothers, a Memphis wholesaler, in a cardboard container. Orgill Brothers in turn sold it to Yates and Gary, who were both contractors and operators of a hardware store.

On July 26, 1963, about eight months after they had moved into the house, the Hodges and their three children left on a trip to visit relatives in Arkansas. Several hours later, in the afternoon, the electric water heater exploded and substantially destroyed the house and all personal property in it. The two thermostats had locked or frozen in the 'on' position. The water heater was found in a field 200 feet from the residence.

The Hodges brought this attachment action in the Chancery Court of Hinds County against State Stove Manufacturing Company (called State Stove), the manufacturer, and Yates and Gary, the contractors. The chancery court dismissed with prejudice the suit against Yates and Gary, finding there was no causal connection between the explosion and 'the way that the contractors installed the water heater.' The suit was filed on the theory of negligence, the chancellor said, solely by installation of the pressure relief valve in the cold water instead of the hot water line. He held that installation in the cold water line was proper.

As to the manufacturer, the court found: State Stove installed in the tank a plastic dip tube, running from the top to near its bottom, for insertion of cold water. The two thermostats, installed by State Stove, stopped working, and the only safeguard which State Stove took against excessive heat was the thermostats. The heat continued to mount until the plastic dip tube 'fused and disintegrated to a point where cold water could not get into the water tank,' and stopped up the valves and pipes, thus causing the explosion. The court concluded that the manufacturer was negligent in construction of the water heater. It also said the doctrine of res ipsa loquitur applied. The decree awarded damages to the Hodges against State Stove for destruction of their house in the amount of $10,400 (after deducting salvage value). He also gave $500 nominal damages for destruction of personal property, thus giving the Hodges a decree against State Stove for $10,900, from which this appeal was taken by State Stove. The Hodges appeal from the dismissal of their suit against Yates and Gary.


Appellant contends that there was no privity of contract between it and the Hodges, and that the manufacturer of an appliance such as a hot water heater is not liable to the ultimate purchaser in the absence of some contractual relationship between them. Hence the first issue is whether privity of contract is necessary. We conclude it is not.

The history of the now universally rejected doctrine of privity contract began in 1842 in the English case of Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (1842). Subsequently the courts began developing several exceptions which whittled away the general rule derived from the erroneously supposed holding of Winterbottom v. Wright. For example, if the seller knew the chattel was dangerous for its intended use and failed to disclose that fact to the buyer, he became liable to a third person injured by such use. Second, liability existed where the chattel was furnished for use on the defendant's premises, treating the user as an invitee. The third was the most important exception, holding the seller liable to a third person in the preparation or sale of an article imminently or inherently dangerous to human safety. In 1916 Judge Cardozo, in MacPherson v. Buick Motor Company, held, in a suit against the manufacturer of

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an automobile with a defective wheel, that the maker was liable for negligence. By placing the car on the market, it assumed a responsibility to the consumer, resting not on contract but upon the relation arising from the purchase, together with the foreseeability of harm if proper care was not used. 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696 (1916); Prosser, Torts 658-661 (3d ed. 1964).

Prosser summarizes the effect of MacPherson in subsequent cases in this way:

This decision found immediate acceptance, and at the end of some forty years is universal law in the United States, with the barely possible but highly unlikely exception of Mississippi. Massachusetts, which was one of the last jurisdictions to capitulate, has said that 'The MacPherson case caused the exception to swallow the asserted general rule of nonliability, leaving nothing upon which that rule could operate.' Some of the courts have continued to speak the language of 'inherent danger,' but it seems clear that this now means nothing more than that substantial harm is to be anticipated if the chattel should be defective. * * * It is certainly the prevailing view that it extends to any product whatever which, if in fact negligently made, may reasonably be expected to be capable of inflicting injury. * * *

The conclusion is clear that the duty extends to any one who may reasonably be expected to be in the vicinity of the chattel's probable use, and to be endangered if it is defective. * * *

Likewise the liability has been extended to damage to other property; and it is now generally agreed that the manufacturer is responsible for negligence in the sale of goods, such as animal food, which involve no recognizable risk of personal injury, and are foreseeably dangerous only to property. Prosser, Torts at 661-663.

Privity of contract between a consumer of a product and its manufacturer has not only been abandoned by every State in the Union, except Mississippi, but it has no rational basis for continuance in such an action in this jurisdiction. The manufacturer, by placing a chattel or product upon the market, assumes a responsibility to the consumer, resting not upon the contract but upon the relation arising from his purchase, together with the foreseeability of harm if proper case is not used. Hence it is appropriate and necessary, in accord with the universal rule elsewhere, that we hold this duty is one imposed by the law because of the defendant's affirmative conduct, which he should know to be likely to affect the interest of another. The rule which we adopt extends to any product which, if in fact negligently made, may reasonably be expected to be capable of inflicting injury. Privity of contract is not necessary in a suit by a consumer against a manufacturer. See Prosser, Torts, 658-672 (3d ed. 1964); Gillam, Products Liability in a Nutshell, 37 Ore.L.Rev. 119, 128-130 (1958); Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5 (1965).

Ford Motor Company v. Myers, 151 Miss. 73, 117 So. 362 (1928), involved a suit by the purchaser of a truck with a defectively made cuff which broke, causing the truck to become unmanageable and plunge into a ditch, killing the owner. It was said that Myers had no contractual relation with Ford Motor Company, but was a remote vendee; and an automobile was not a dangerous instrumentality. Privity of contract lacking, no action lay against the manufacturer.

However, in several cases beginning in 1954, this Court expressly pretermitted the question of whether privity was necessary in a suit against a manufacturer, but indicated that requirement might be rejected. E. I. DuPont de Nemours & Co. v. Ladner, 221 Miss. 378, 73 So.2d 249 (1954), was a suit by Ladner against DuPont for damages to his dairy herd as the result of feeding soybean meal processed with a chemical

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compound manufactured by DuPont. A judgment for plaintiff was reversed. The Court discussed the 'decisions of many courts' that a person who has had no direct contractual relation with the manufacturer may recover against him for negligence. It pretermitted the question of whether the 'rule of legal liability' applied in suits against manufacturers of foods and beverages intended for human consumption should be applied to a manufacturer of animal food. 221 Miss. at 399, 400, 73 So.2d at 254, 255. It was held that the proof failed to show that DuPont's negligence was the proximate cause of injury to plaintiff's cattle; that by letter and in person DuPont warned the processor of the cattle feed of the dangers incident to the use of this chemical compound before the cattle feed was manufactured and sold to a retailer; and the processor's negligence was the intervening, sole proximate cause of plaintiff's damages.

Cox v. Laws, 244 Miss. 696, 145 So.2d 703 (1962), was a suit for the wrongful death of a man, who died within a few minutes after using penicillin ointment on a wound, resulting in an anaphylactic reaction to the ointment. A demurrer to the declaration was sustained, but on appeal this was reversed and the cause remanded. The declaration stated a cause of action, charging a sale in violation of law without a prescription. The opinion reviewed the history of the privity of contract rule, observed that a majority of the courts have abandoned it, and numerous exceptions have been engrafted on it; but it was said that it was not necessary at that time to overrule...

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