Altorfer Bros. Co. v. Green

• Decision Date: 09 June 1938
• Docket Number: 6 Div. 197.
• Citation: 236 Ala. 427,183 So. 415
• Parties: ALTORFER BROS. CO. v. GREEN.
• Court: Alabama Supreme Court

183 So. 415

236 Ala. 427

ALTORFER BROS. CO. v. GREEN.

6 Div. 197.

Supreme Court of Alabama

June 9, 1938

Rehearing Denied Oct. 6, 1938.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Mannie Belle Green against Altorfer Brothers Company for injuries sustained when plaintiff's hand was caught in the wringer of a washing machine manufactured by defendant. From a judgment for plaintiff, defendant appeals.

Affirmed.

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellant.

Harsh Harsh & Hare, of Birmingham, for appellee.

FOSTER Justice.

Appellant was defendant against whom a judgment was rendered in the circuit court in a suit which was submitted to the jury on counts 5, 6, 8, 9, 10 and 11. Demurrer to those counts was overruled. Appellant contends that it should have been sustained.

Plaintiff was injured, as alleged in those counts, while she was using an electric clothes washer which also had a wringer as an attachment. Her hand was caught between the rollers and was hurt. Defendant was the manufacturer of the machine.

The complaint alleges that the machine was delivered to her at her residence for her use; that they were sold by defendant to merchants to be resold to the public for use in washing and wringing clothes; that the wringer was not reasonably safe for use by the public, but was imminently dangerous when used for such purpose, and that defendant knew of such danger, but it was not known to plaintiff nor made known to her. It then alleges that defendant negligently allowed plaintiff to use the wringer without the exercise of reasonable diligence to notify plaintiff of such danger, and that plaintiff's injuries were the proximate consequence of said negligence.

We have not undertaken to set out all the averments. The other counts named are not different in a material respect from a legal standpoint. The demurrer goes to the substantial merits of the cause of action thus set out.

It is noted at the outset that none of the counts are predicated on a breach of contract express or implied. It is not within the prohibition of our case of Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667.

But though plaintiff is not in privity of contract with defendant in respect to the machine, and though the general rule exempts one from liability to another not in privity, both in assumpsit and tort actions, there are well recognized exceptions applicable to this situation.

This Court in Jones v. Gulf States Steel Co., 205 Ala 291, 88 So. 21, recognized an exception so applicable, though in that case the facts did not meet the requirements. But the opinion discusses the principles of law and cites the cases so as to make the rule clear. Quoting from MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas. 1916C, 440, it was said (88 So. page 23): "It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. * * * If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent." The principle is also set out in 45 Corpus Juris 888. The Jones Case, supra, also cites Huset v. Case Threshing Machine Co., 8 Cir., 120 F. 865, 61 L.R.A. 303.

In our very recent case of Sterchi Bros. Stores, Inc., v. Castleberry, 182 So. 474, the principle was again fully considered by this Court.

The law as declared in Huset v. Case Threshing Machine Co., supra, was approved and much of it was quoted. What is there declared to be the third exception to the general rule is stated very much in the language of count 5 of this complaint, except that it is said in this connection that the injury should have been reasonably anticipated. And this was emphasized in the MacPherson Case, supra, as quoted in the Jones Case, supra. Without this element, there is no substantial basis for a claim of liability.

The question is whether this element is supplied by the allegations in this complaint. They all allege that the machine was imminently dangerous when used for the purpose for which it was manufactured.

Counts 6, 8, 9, 10 and 11 give more detail, showing in what respect it is dangerous. They all allege that defendant knew of such danger or should have known it in the exercise of reasonable diligence. They do not in express terms allege that the danger was such as that defendant should have contemplated the injury as a likely result, or that it did contemplate it. So the question arises whether such allegations should be so interpreted.

Some of the authorities declare the principle as meaning that it is applicable if the machine is "inherently or imminently...