Bragdon v. Perkins-Campbell Co.

• Decision Date: 13 April 1898
• Docket Number: 14.
• Citation: 87 F. 109
• Parties: BRAGDON v. PERKINS-CAMPBELL CO.
• Court: U.S. Court of Appeals — Third Circuit

87 F. 109

BRAGDON v. PERKINS-CAMPBELL CO.

No. 14.

United States Court of Appeals, Third Circuit.

April 13, 1898

C. C Dickey and W. K. Shiras, for plaintiff in error.

A. P Burgwin and Thornton M. Hinkle, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and BRADFORD, District judge.

DALLAS Circuit Judge.

The defendant sold and delivered to Albert R. Bragdon, the husband of the plaintiff, a sidesaddle; and in the statement of claim it is alleged:

'The said defendant then and there promised and agreed with the said Albert R. Bragdon, acting in behalf of the said plaintiff, that the said sidesaddle should be made by defendant especially for the use of the said plaintiff and, that, by reason of said intended use by the said plaintiff, he would take care to make and deliver a saddle of especial strength and safety, and constructed of the best material, and by means of the best workmanship.'

Here there is alleged, simply and solely, an agreement to 'take care,' but as the action is not ex contractu, but ex delicto, this allegation can be regarded only as matter of inducement. The substantial averment, the gravamen of the declaration, is:

'It became and was the duty of the defendant to make and deliver to the said Albert R. Bragdon, for the use of the said plaintiff, as aforesaid, a safe, sound, strong, and skillfully made saddle,-- made of the best material, and with the best workmanship. But the said defendant, disregarding its duty in the premises, negligently and unskillfully made and delivered to the said plaintiff, by the said husband, an unsafe, unsound, and weak saddle,' by reason whereof the plaintiff sustained an injury, and was damaged.

It thus appears, not only that the action sounds in tort, but also that the specific wrong declared upon is not deceit, but negligence; and, we may add, the record discloses nothing upon which the plaintiff could have recovered, if she had attempted to do so, either for breach of warranty or for deceit. We have, then, a case in which the essential element consists of a breach of duty; and the burden is on the plaintiff to prove facts sufficient to show what the duty is, and that the defendant owed it to her. 1 Shear.& R.Neg. § 8; Beach, Contrib. Neg. 6; Thomp. Neg. (preface). Dr. Wharton (Whart. Neg. Sec. 24) defines a legal duty thus:

'That which the law requires to be done or forborne to a determinate person, or to the public at large, and is a correlative to the right vested in said determinate person, or in the public.'

This definition may be properly applied to this case, and, so applying it, it appears that the supposed right of the plaintiff must be rested upon the affirmance of the proposition that to her, as a determinate person, the defendant owed a duty to carefully construct the saddle in question. But this proposition cannot be sustained. In the leading case of Langridge v. Levy, 2 Mees. & W. 519, the father of the plaintiff had bought from the defendant a gun, which was represented by the defendant, who knew it was intended for use by the plaintiff, to have been made by a certain manufacturer, and to be a safe gun. It had not been made by the manufacturer named, and, while the plaintiff was using it, it burst, and wounded him. The court said:

'It is clear that this action cannot be supported upon the warranty as a contract, for there is no privity in that respect between the plaintiff and the defendant'; and 'we are not prepared to rest the case upon one of the grounds on which the learned counsel for the plaintiff sought to support his right of action, namely, that wherever a duty is imposed on a person, by contract or otherwise, and that duty is violated, any one who is injured by the violation of it may have a remedy against the wrongdoer.'

The plaintiff's right of recovery was accordingly not sustained for breach or warranty or for negligence, but solely upon the ground that there had been fraudulent misrepresentation, and that the injurious consequence to the plaintiff was 'the result of that fraud.' This judgment was affirmed. 4 Mees.& W. 337. And the appellate court distinctly based its decision upon the same foundation as that which had been relied on by the court below. Thus, it plainly appears that both courts dealt with Langridge v. Levy as a case of deceit, and carefully avoided affording any excuse for implication that they would have sustained it for negligence. The reason for thus distinguishing between these wrongs is not stated in either of the opinions, but it is, we think, quite obvious. Ordinarily, where a vendee accepts the purchased article, the vendor becomes, by reason of such acceptance, relieved from liability to third parties with respect to it. The vendee assumes, and the vendor stands discharged of, responsibility to them. But, where the vendor is chargeable with deceit,-- where he has induced the vendee's acceptance by false and fraudulent misrepresentations,-- the latter cannot be said to have consciously taken upon himself any duty of care; and that duty, therefore, if existent, is not shifted from the vendor, and he consequently remains liable. In Heaven v. Pender (1883) 11 Q.B.Div. 503, Brett, M.R., sought to lay down the rule:

'That whenever one supplies goods or machinery, or the like, for the purpose of either being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied, or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing. And if there be a neglect of such ordinary care, or skill, whereby injury happens, a legal liability arises, to be enforced by an action for negligence.'

It must be conceded that this proposition, if sound, would lend support to the contention of the plaintiff in error. But it is not sound. It affirms a view of the law which, in Langridge v. Levy, the court declined to adopt, and which was repudiated by a majority of the judges (Cotton, L. J., and Bowen, L. J.) in the case in which it was propounded. One of the judges last mentioned delivered, on behalf of both of them, an opinion, in which it is said:

'I am unwilling to concur with the master of the rolls in laying down unnecessarily the larger principle which he entertains, inasmuch as there are many cases in which the principle was impliedly negatived. Take, for instance, the case of Langridge v. Levy, to which the principle, if it existed, would have applied, but the judges who decided that case based their

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