Baker v. Sears Roebuck & Co.

• Citation: 16 F. Supp. 925
• Decision Date: 03 November 1936
• Docket Number: No. 7651-H.,7651-H.
• Court: U.S. District Court — Southern District of California
• Parties: BAKER et al. v. SEARS ROEBUCK & CO. et al.

16 F. Supp. 925

BAKER et al. v. SEARS ROEBUCK & CO. et al.

No. 7651-H.

District Court, S. D. California, Central Division.

November 3, 1936.

Omer Romanes Young, of Long Beach, Cal., for plaintiffs.

Loeb, Walker & Loeb, of Los Angeles, Cal., for defendants.

HOLLZER, District Judge.

This suit was originally filed in the state court against both the vendor and the manufacturer of a stove. The plaintiffs consist of an infant child and the latter's parents. The amended complaint contains three counts. In the first count damages are sought for injuries sustained by the minor, in the second cause of action the father of the minor seeks reimbursement for moneys alleged to have been expended in treating the child, while in the third cause of action the mother seeks to recover a sum estimated to be necessary for the future treatment and healing of said minor.

Upon petition of the defendant Sears Roebuck & Co., the vendor alleging that the controversy was separable as to it, the cause was removed as to the latter to this court. Said defendant has interposed a demurrer upon both general and special grounds.

The complaint alleges that the stove in question was purchased by the parents for the use and benefit of themselves and also their minor child; that, when the stove was delivered, the same was defective by reason of the negligent manner in which it had been made and assembled and because of a certain inadequate spring attachment designed to keep the stove cover upright when the stove was being used; that these defects were hidden and unknown to plaintiffs but were known to the vendor, who neglected to inform plaintiffs regarding the same; that, while said stove was being used by the plaintiffs, this cover, because of the aforementioned defects, fell and knocked a kettle of hot water off the stove and on to said minor child, resulting in the injuries complained of.

The principles of law covering the liability of persons supplying chattels for the use of others are set forth in the American Institute of Law's Restatement of the Law of Torts, § 388 et seq. Section 388 declares:

"One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

"(a)...