C. D. Herme, Inc. v. R. C. Tway Co.

• Decision Date: 22 June 1956
• Citation: 294 S.W.2d 534
• Parties: C. D. HERME, Inc., Appellant, v. R. C. TWAY COMPANY, Inc., d/b/a Kentucky Manufacturing Company, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 534

294 S.W.2d 534

C. D. HERME, Inc., Appellant, v. R. C. TWAY COMPANY, Inc., d/b/a Kentucky Manufacturing Company, Appellee.

Court of Appeals of Kentucky.

June 22, 1956.

Rehearing Denied Nov. 16, 1956.

Armer H. Mahan, Louisville, for appellant.

Charles I. Dawson, Louisville, for appellee.

CULLEN, Commissioner.

The question on this appeal concerns the tort liability of the manufacturer of an article, to an ultimate purchaser of the article through an independent dealer, for damages to property resulting from a defect in the article.

C. D. Herme, Inc., purchased from an independent dealer a semi-trailer manufactured by R. C. Tway Company, Inc. The first time the semi-trailer was put in use the king-pin constituting the main connection between the semi-trailer and the tractor broke, causing the semi-trailer to come loose and upset in a ditch, with resulting damage of a substantial nature to the semi-trailer and its cargo. The Herme Company sued the Tway Company for damages, alleging that the king-pin was made of defective steel and that the defect could have been discovered by tests made in the exercise of reasonable care.

Upon trial before a jury, the evidence for the plaintiff tended to show that the king-pin was of defective material, and that certain chemical or physical tests would have disclosed the defect. However, there was no showing that the defendant actually knew of the defect or that the defect was so obvious that knowledge would be presumed. At the close of the plaintiff's evidence the court directed a verdict for the defendant, and from the judgment upon that verdict the plaintiff has appealed.

The leading case in Kentucky, on the question of the tort liability of a manufacturer of an article, to a person with whom he has no contractual relation, for damages resulting from a defect in the article, is Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S.W. 1047, 37 L.R.A.,N.S., 560, decided in 1911. There the Court reconsidered and reaffirmed the rule announced in a number of earlier Kentucky cases, that as concerns articles not inherently or intrinsically dangerous, but which by reason of a defect are imminently dangerous, the manufacturer is not liable unless he has actual knowledge of the defect or it is so obvious that his knowledge will be presumed. There is no contention here that the semi-trailer falls in the inherently or intrinsically dangerous category.

In Payton's Adm'r v. Childers' Electric Co., 228 Ky. 44, 14 S.W.2d 208, there was some indication of an intent of the Court to broaden the basis of liability and to hold the manufacturer liable for ordinary negligence in the manufacture of an article. The attitude of the Court is indicated by the following two quotations from the Payton case, 14 S.W.2d 208, at pages 209 and 210:

'The early cases limited this exception to things in their nature destructive, such as poison, explosives, and deadly weapons, but the tendency recently of the great majority of the courts has been to extend this exception to include any article imminently dangerous, whether inherently so or not, and we think the exception as extended is sound in principle.' (Our emphasis.)

'The rule applicable to the instant case and sustained by the weight of authority is that the manufacturer or installer of an article which is not inherently dangerous, but which by reason of negligent construction, is manifestly dangerous when put to the use for which it is intended, is liable to any person who suffers an injury therefrom, which injury might have been reasonably anticipated. * * *' (Our emphasis.)

There seems to be no valid reason arising from considerations of public policy or otherwise, why a manufacturer's tort liability should not be based upon the ordinary principles of the law of negligence. This means simply that a manufacturer should be required to exercise reasonable care to avoid foreseeable injury. There is no reason to retain the old concepts of inherently, intrinsically or imminently dangerous articles, because the law of negligence contemplates that the care shall be commensurate with the risk involved. As stated in the Restatement of the Law of Torts, Volume II, Negligence, Sec. 395, Comment a., p. 1074 '* * * the precaution necessary to comply with the standard of reasonable care varies with the danger involved. Consequently the character of harm likely to result from the failure to exercise care in manufacture affects the question as to what is reasonable care. It is reasonable to require those who make or assemble automobiles to subject the raw material, or parts, procured even from reputable manufacturers, to inspections or tests which it would be obviously unreasonable to require of a product which, although defective, is unlikely to cause more than some comparatively slight, though still substantial, harm to those who use it. * * *'

The ancient so-called 'general rule' of the manufacturer's non-liability for negligence to persons with whom he has no contractual relation, followed by this Court in the Olds Motor case, has been abandoned by substantially all modern authorities. See Annotation, 164 A.L.R. 569. Upon reconsideration, we now determine also to abandon it and we hereby expressly overrule the Olds Motor case.

We think the proper rule is as stated in the Restatement of the Law of Torts, Sec. 395:

'A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in the manner and for a purpose for which it is manufactured.'

Although the duty is stated in terms of the foreseeability of bodily harm, we think that if the duty has been violated, the mere fact that the actual injury in the particular...