Anderson v. Linton

• Decision Date: 30 December 1949
• Docket Number: No. 9851.,9851.
• Citation: 178 F.2d 304
• Parties: ANDERSON v. LINTON.
• Court: U.S. Court of Appeals — Seventh Circuit

178 F.2d 304 (1949)

ANDERSON v. LINTON.

No. 9851.

United States Court of Appeals. Seventh Circuit.

November 14, 1949.

Rehearing Denied December 30, 1949.

COPYRIGHT MATERIAL OMITTED

Marion J. Hannigan, Chicago, Ill., Julius S. Neale, Chicago, Ill., for appellant.

Arnold Alexander, Chicago, Ill., Samuel Schmetterer, Chicago, Ill., Irving Goodman, Chicago, Ill., for appellees.

Before DUFFY, FINNEGAN, and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

Plaintiff, as administratrix of the estate of her late husband, Donald Anderson, brings this action for damages resulting from his alleged wrongful death. Plaintiff also claims damages for her personal injuries. Defendant Harrison Sheet Steel Company answered the original complaint, denying negligence, and further alleging that the Illinois Trailer Convoy, Inc., which had been employed to deliver the trailer involved in the collision, was negligent in numerous respects. Thereafter plaintiff filed an amended complaint with leave for defendants to answer same within 30 days from September 7, 1948.

On September 23, 1948, defendant Harrison Sheet Steel Company filed a motion to strike the amended complaint and to dismiss the suit on the grounds that the amended complaint did not state any cause of action, either at common law or under any statute, and that the plaintiff had not stated any duty that was owed to the plaintiff by Harrison Sheet Steel Company.

The other defendants were granted an extension of time in which to answer, but before filing an answer, and on December 17, 1948, the individual defendants who were doing business as Travelite Trailer Company, and the corporate defendant, Overland Coach Company, Inc., filed a motion to strike the amended complaint and to dismiss the suit on the grounds the amended complaint (1) failed to show any legal duty by said defendants to the plaintiff, (2) failed to allege any statutory or common law right of action by the plaintiff, and (3) failed to allege the driver of the vehicle striking plaintiff's automobile was an agent or servant of said defendants. On January 7, 1949, the court entered an order granting said motions, striking the amended complaint, and dismissing the cause. The record does not show which, if any, of the reasons assigned in the motions was the basis for the court's order.

The amended complaint herein, after alleging plaintiff's appointment as administratrix, diversity of citizenship, and jurisdictional amount, alleged that the individual defendants as co-partners doing business as Travelite Trailer Company and the Overland Coach Company, Inc., were manufacturers and assemblers of house trailers and coaches; that defendant Harrison Sheet Steel Company assembled, placed, attached and welded certain frames, hitches, and component parts upon the house trailers and coaches manufactured by the individual defendants and by Overland; that on September 29, 1946, a house trailer, manufactured and assembled by the defendants, was attached to a truck or tractor owned and operated by Illinois Trailer Convoy, Inc., for the purpose of delivering the trailer to Des Moines, Iowa; that on September 29, 1946, while the truck and trailer were on Highway 6 in Jasper County, Iowa, the frame, hitch and other component parts sheared off, causing the trailer to veer across the center of the highway. The complaint then alleges that at the time and place mentioned plaintiff was riding as a passenger in an automobile owned and driven by her husband, and that they were proceeding on Highway 6 in the opposite direction to that in which the tractor and trailer were proceeding; that when the trailer veered across the highway, it collided with the automobile in which plaintiff and her husband were riding; that plaintiff and her husband received serious personal injuries, and that as a result of his injuries, her husband died on September 30, 1946. Plaintiff alleges negligence in that defendants, during the manufacture and assembly of the house trailer, negligently, carelessly and unskillfully constructed, assembled, welded, and attached the frame, hitch, and parts to the house trailer, and that defendants knew, or by the exercise of reasonable care and caution should have known, that the frame, hitch, and other parts attached or welded to the house trailer were of inferior quality and grade, and that same contained numerous structural weaknesses, and that the defendants knew, or should have known that the frame, hitch, or other parts, did not contain the necessary tensile strength and were not fit for the purpose and object intended. The complaint then alleged that as a direct and proximate result of the negligence and unskillful conduct of defendants, the frame and hitch attached to the trailer sheared and broke off, and that as a direct and proximate result of said negligence plaintiff and her husband were injured. The amended complaint did not contain any allegation of negligence on the part of the driver of the tractor which was hauling the trailer.

We shall assume that the court granted defendants' motions to strike the amended complaint and to dismiss the cause on the theory that the complaint did not state a claim upon which relief could be granted. The defendants argued in the district court, as they have on appeal, that a manufacturer of automobiles or trailers cannot be held liable for negligent construction to those who are not directly or indirectly in privity of contract with him.

It must be conceded that both in England and in this country the rule early became established that a manufacturer or a supplier could not be held liable for negligence to a remote vendee or other person with whom he had no contractual relationship. This rule stemmed from the English case of Winterbottom v. Wright, 10 Mees. & W. 109, decided in 1842. The wide acceptance of this rule is remarkable in as much as it was based on dictum by Lord Abinger in a case which involved a contractor rather than a manufacturer, and the matter was before the court on a demurrer.

In the United States the rule of non-liability of manufacturers to persons not in privity with them was followed in numerous cases. The dictum in the Winterbottom case became firmly implanted in American textbooks as a common law rule of negligence. As one writer put it, "The rule became crystalized by repetition."

However, the requirements of justice in many cases caused the courts to note exceptions to the rule. One of the first of such cases was Thomas v. Winchester, 1852, 6 N.Y. 397, 57 Am.Dec. 455. This case gave rise to the "dangerous instrumentality" doctrine of exceptions, and soon poisons, drugs, explosives, inflammable oils, and other like substances, and food and beverages for human consumption, were widely recognized as being within the exceptions to the rule.

The path away from the narrow and unsound rule of the Winterbottom case, supra, was blazed by Judge Cardozo in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann. Cas.1916C, 440, a case involving a manufacturer of an automobile who was held liable to a remote vendee for injury caused by failure to properly inspect a wheel, purchased from another, which had in it a hidden but discoverable defect which caused it to collapse.

As this nation progressed from the horse and buggy days to the era when automobiles, trailers and complicated household appliances became common place, courts felt impelled to constantly enlarge and extend the scope of the exceptions to the rule. Changing social and economic conditions demanded a reappraisal of the whole concept of what duty the manufacturer of a device or article, not inherently dangerous in itself but which might become dangerous when put to the use for which it was intended, owed to the ultimate user and to the public.

As examples of cases where the severity of the old rule was further whittled down and manufacturers were held liable to injured persons who were not the ultimate purchasers, see Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S.W. 1047, 37 L.R.A., N.S., 560, Ann.Cas.1913B, 689, where the manufacturer was held liable to a plaintiff who was a passenger and a guest of an ultimate purchaser; General Motors Corp. v. Johnson, 4 Cir., 137 F.2d 320, where the plaintiffs were the employees of the owner of a truck who was an ultimate purchaser; Barrett Co. v. Bobal, 6 Cir., 74 F.2d 406, where the plaintiff's decedent was an employee of a county which rented and used defendant's tanks, one of which exploded due to a defective condition; and Lill v. Murphy Door Bed Co., 290 Ill.App. 328, 8 N.E.2d 714, where the plaintiff was a tenant in a building wherein a defective in-a-door bed had been furnished in her apartment.

Defendants insist that we must apply the law of Illinois. They cite Shepard v. Kensington Steel Co., 262 Ill.App. 117; Trust Co. of Chicago, etc. v. Lewis Auto Sales, Inc., 306 Ill.App. 132, 28 N.E.2d 300; Alschuler, et al. v. Rockford Bolt and Steel Co., 318 Ill.App. 564, 48 N.E.2d 435, as establishing the Illinois rule. While the cases of Lill v. Murphy Door Bed Co., supra, and Kreger v. George W. Diener Mfg. Co., 1944, 321 Ill.App. 302, 53 N.E.2d 26, cast some doubt upon defendants' statement of what the Illinois rule is, we need not consider that question further as we are of the opinion that Iowa law is applicable and we must therefore seek to ascertain whether the courts of Iowa have passed on the question. If so, we must follow such declaration of the law.

True it is that the alleged negligent fabrication and construction of the trailer hitch described in the complaint occurred in Illinois and the case at bar was filed in that State, but the injuries to the plaintiff and her husband were sustained in Iowa. The locus delicti is the place where the accident occurred, and where the injuries were inflicted, as distinguished from the place of the incipient negligence, 25 C.J.S., Death, § 28, p. 1098; Hunter v....