Bird v. Ford Motor Co.

• Citation: 15 F. Supp. 590
• Decision Date: 07 July 1936
• Docket Number: No. 1841A.,1841A.
• Parties: BIRD v. FORD MOTOR CO.
• Court: U.S. District Court — Western District of New York

15 F. Supp. 590

BIRD v. FORD MOTOR CO.

No. 1841A.

District Court, W. D. New York.

July 7, 1936.

Carnes & Hetzelt, of Buffalo, N. Y., for plaintiff.

Harold J. Adams, of Buffalo, N. Y., for defendant.

KNIGHT, District Judge.

The plaintiff sues to recover damages sustained from the breaking of a windshield in an automobile manufactured by the defendant caused by a collision between two automobiles. Defendant moves to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action and, in the event such motion is denied, that certain specific allegations of the complaint be stricken. Allegedly plaintiff was a passenger in an automobile operated by the owner.

The first question is whether, as a matter of law, the defendant owed any duty to the plaintiff out of which any cause of action arises. The motion presumes the allegations in the complaint to be true. The defendant sells a windshield which it represents to be "shatter-proof." It presumably knew the purpose to which it was to be put. It knew it was to be used in the automobile, and presumably knew it was intended to be employed as a protection to the users. Until comparative lately so-called "shatter-proof" glass was unknown as equipment in automobiles. The glass theretofore used was easily broken from a blow or shock. With the increased attendant danger, so-called shatterproof glass came to be substituted and is now in general use.

Among other things the complaint alleges that the automobile was defective; that proper tests would have disclosed that the "shatter-proof" glass was defective, and "negligently and improperly manufactured"; and that such glass was "inherently and imminently dangerous when used and installed in automobiles"; and that the defective condition was known to the defendant. These and other allegations to the same effect, coupled with the usual allegations in a negligence suit, sufficiently state a cause of action in negligence in favor of this plaintiff. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L. R.A.1916F, 696, Ann.Cas.1916C, 440; Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S.W. 1047, 37 L.R.A.(N.S.) 560, Ann.Cas. 1913B, 689; Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.(2d) 409, 410, 15 P. (2d) 1118, 88 A.L.R. 521.

It is claimed that recovery by a third party cannot be had, since there is no privity of contract. While in MacPherson v. Buick Motor Co., supra, injuries resulted from the ordinary use of the car, the allegations of this complaint meet the definition of legal liability as therein declared. In New York state the earlier construction which limited the right of recovery to the immediate purchaser has been extended. In MacPherson v. Buick Motor Co., supra, numerous authorities supporting this view are cited and the reason therefor stated. It has frequently been stated that the manufacturer is not liable to third parties for negligence in the manufacturing of an article. Huset v. J. I. Case Threshing Mach. Co. (C.C.A.) 120 F. 865, 867, 61 L.R.A. 303; United States Radiator Corporation v. Henderson (C.C.A.) 68 F.(2d) 87. This is based upon the rule that the manufacturer owing no duty to third persons, no actionable negligence for breach of duty lies. Liability, however, based upon a tort, rather than a private contract, arises under certain circumstances such as shown here.

The opinion of Judge Sanborn in Huset v. J. I. Case Threshing Mach. Co., supra, has been discussed in many cases. There it was said that: "The general rule is that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles." Many authorities are there cited, and it is said: "The views expressed by the judges in this case have prevailed in England and in the United States, with the exception of two decisions which are in conflict with the leading case and with all the decisions to which reference has been made." Id. "Devlin v. Smith, 89 N.Y. 470, 42 Am.Rep. 311; * * * Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N.W. 1103, 15 L.R.A. 818, 32 Am.St.Rep. 559." To the general rule the court, however, makes three exceptions, one of which is: "That one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not." The Circuit Court of Appeals held that this case came within the third exception. There a threshing machine manufactured by the defendant was sold by defendant to a party and it was then operated by plaintiff as employee of the purchaser. The trial court sustained a demurrer; the Circuit Court of Appeals reversed. The reasoning of the court in taking this case out of the ordinary rule was that the article was known by the defendant to be imminently dangerous to life and limb and the injury was such as might reasonably have been anticipated from a defective article. It was further said in that case: "It is a rational and fair deduction from the rules to which brief reference has been made that one who makes or sells a machine, a building, a tool or an article of merchandise designed and fitted for a specific use is liable to the person who, in the natural course of events, uses it for the purpose for which it was made or sold, for an injury which is the natural and probable consequence of the negligence of the manufacturer or vendor in its construction or sale." If we say in the instant case the automobile is an inherently dangerous thing and that the results which happen came from the ordinary uses to which the machine was intended to be put, this case comes within the rule laid down in Huset v. Case Threshing Mach. Co., supra. Here again we refer in the instant suit to the complaint, which alleges the owner or manufacturer had knowledge of the defect and that the requisite inspection was not made. But whether we say that the reasoning in Huset v. Case Threshing Mach. Co. Case sustains the contention that this suit may be maintained, it will be seen upon examination of many authorities that the rule laid down in the Huset v. Case Threshing Mach. Co. Case has been greatly broadened in recent years.

In United States Radiator Corporation v. Henderson (C.C.A.) 68 F.(2d) 87, 92, it is said: "I recognize that the rules laid down in the Huset Case have been expanded and enlarged by the later decisions, and that the principles announced in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, 1053, L.R.A.1916F, 696, Ann.Cas.1916C, 440, have received such widespread judicial approval that they may be regarded as stating the now accepted law on this subject."

The cases which are cited by the defendant are easily distinguishable. In Amason v. Ford Motor Co. (C.C.A.) 80 F.(2d) 265, 266, plaintiff's intestate was injured by falling from an automobile when he opened a door while the automobile was moving. It is clear that the negligence of the deceased caused the injuries. No defect in the door was shown, and the act resulting from the use of the door as used could not reasonably have been contemplated by the manufacturer. The opinion does state that: "It is a general rule that the manufacturer of an article not dangerous per se is not liable to a third person having no contractual relation with him for negligence in the manufacture of the article." After citing several cases, among which are MacPherson v. Buick Motor Co., as illustrating exceptions to the rule, it said these cases held that the manufacturer owed a duty to the public to use ordinary care in inspecting the parts of a motor vehicle before putting it on the market, so that if an accident was caused by the breaking of a defective part, in the ordinary use of the vehicle, the manufacturer would be liable for negligence if he had failed to properly inspect the car before selling it. The court concedes this to be the modern rule, but states that they are not in point as applied to that case. This clearly was the fact. In Schfranek v. Benjamin Moore & Co. (D.C.) 54 F.(2d) 76, 77, plaintiff purchased from a retail dealer a package of a commodity used in connection with wall and ceiling decoration, and plaintiff alleged that while pouring out some powder from the package his hand was cut by some glass. The rule there laid down has no application here. This use of the article was not within the contemplation of the manufacturer. The thing was not dangerous per se, and such use could not reasonably have been foreseen. Said the court: "The manufacturer is properly held to a duty to foresee the probable results of such normal use, but he does not have to foresee the possible casual results of a user which departs from the normal." The court there also said: "The zone of the possible in casualties is practically limitless. Almost anything in the way of an accident is possible. * * * The zone of the probable, however, is very much narrower, and that is the zone with which tort liability is concerned. * * * Consequently, if a thing has danger implicit in it, as a poison which is to be used for medicine, or has danger almost necessarily involved as a badly constructed motorcar or piece of machinery, the manufacturer is held to liability for failure to lable or mix the medicines correctly, * * * or failure adequately to inspect the motorcar or the machinery."

In Reed & Barton Corporation v. Maas (C.C.A.) 73 F.(2d) 359, 361, plaintiff was injured when a coffee urn tipped over. It was held that under the Wisconsin law the manufacturer of an article not inherently dangerous is liable for any injury due to negligence of manufacturer which makes it probable that injuries will result from proper use of the article. It was there said that the rule applied in the...