Carter v. Yardley & Co.

Decision Date17 January 1946
Citation64 N.E.2d 693,319 Mass. 92
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesCARTER v. YARDLEY & CO., Limited.

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; F. Forte, Judge.

Action of tort for negligence by Esther S. Carter against Yardley & Company, Limited, to recover for a second-degree burn sustained when plaintiff applied to her skin a perfume manufactured by defendant. After a verdict for plaintiff, the judge, under leave reserved, entered a verdict for defendant and plaintiff brings exceptions, and, from a ruling on the evidence, defendant brings exceptions.

Plaintiff's exceptions sustained, defendant's exceptions overruled and judgment entered for plaintiff on verdict of jury.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and WILKINS, JJ.

L. H. Peters, of Boston, for plaintiff.

A. P. Hardy, of Boston, for defendant.

LUMMUS, Justice.

The plaintiff bought at a retail shop in Boston a bottle of perfume manufactured by the defendant and sold by it to the retailer. There was evidence that the plaintiff suffered a second degree burn when she applied the perfume to her skin. In answer to interrogatories, the defendant declared that it did not know all the ingredients of the perfume, nor the proportions of the several ingredients. In this action of tort for negligence, after a verdict for the plaintiff the judge, under leave reserved and over the exception of the plaintiff, entered a verdict for the defendant. That exception raises the only question in the case, apart from one question of evidence.

Over the exception of the defendant, the plaintiff was permitted to introduce the testimony of two lay witnesses and one admittedly qualified expert physician, to the effect that each of them had applied to his or her own skin perfume from the same bottle and that it had irritated, inflamed and injured the skin. The burden of proof was on the plaintiff to show negligence. The defendant could not be found negligent unless injury to the skin of a consumer from the contents of the bottle was to be anticipated. The plaintiff was not required to prove that a majority of consumers would be injuriously affected. ‘It is enough if a sufficient number are susceptible so that a jury could reasonably say that the defendant ought to have known and recognized the danger of injury and ought to have guarded against it.’ Taylor v. Newcomb Baking Co., 317 Mass. 609, 611, 59 N.E.2d 293, 294. See also Grant v. Australian Knitting Mills, Ltd., [1936] A.C. 85, 92, 93.

The evidence in question was properly admitted to show the probability that the injury to the plaintiff was caused by some harmful ingredient in the perfume rather than by her own peculiar and unforseeable susceptibility. 1 The jury could infer that the skin of the plaintiff and of each of the witnesses was normal. Payne v. R. H. White Co., 314 Mass. 63, 49 N.E.2d 425.

Assuming a duty of care, a finding of negligence in the manufacture and bottling of the perfume was proper if the jury found a greater likelihood, within the interpretation of that expression in Sargent v. Massachusetts Accident Co., 307 Mass. 246, 250, 29 N.E.2d 825, and Smith v. Rapid Transit, Inc., 317 Mass. 469, 470, 58 N.E.2d 754, that the harmful ingredient found its way into the bottle through want of care of the defendant or its servants than through excusable accident or the act of a stranger or some other cause for which the defendant would not be responsible. Flynn v. Growers Outlet, Inc., 307 Mass. 373, 377, 30 N.E.2d 250;Ruffin v. Coca Cola Bottling Co., 311 Mass. 514, 42 N.E.2d 259;Roberts v. Frank's, Inc., 314 Mass. 42, 46, 49 N.E.2d 427;Lubell v. Turner, 314 Mass. 245, 248, 49 N.E.2d 885;McCabe v. Boston Consolidated Gas Co., 314 Mass. 493, 496, 50 N.E.2d 640;Duggan's Case, 315 Mass. 355, 358, 359, 53 N.E.2d 90.

In this case the defendant had full control of the manufacture of the perfume and the filling of the bottle. No examination of the contents of the bottle by any middleman or retailer was practicable. There was evidence that when bought by the plaintiff the perfume ‘was still in the same condition as when bottled by the defendant,’ that the contents of the bottle were harmful, and that the defendant did not know all the ingredients used. Assuming a duty of care, we think that a finding was warranted that in some way the defendant was negligent. If the plaintiff had bought the perfume directly from the defendant, a verdict in her favor on the ground of negligence would have been supported by the evidence. Doyle v. Continental Baking Co., 262 Mass. 516, 160 N.E. 325;Navien v. Cohen, 268 Mass. 427, 167 N.E. 666;Roscigno v. Colonial Beacon Oil Co., 294 Mass. 234, 200 N.E. 883;Vozzella v. Boston & Maine Railroad, 296 Mass. 491, 6 N.E.2d 770;Garrett v. M. McDonough Co., 297 Mass. 58, 7 N.E.2d 417;Liberatore v. Framingham, 315 Mass. 538, 542, 543, 53 N.E.2d 561;Lech v. Escobar, 318 Mass. 711, 63 N.E.2d 891;Gangi v. Adley Express Co., Inc., 318 Mass. 762, 63 N.E.2d 897; Grant v. Australian Knitting Mills, Ltd., [1936] A.C. 85, 101; Clark v. Army & Navy Co-operative Society, Ltd., [1903] 1 K.B. 155. Compare Kusick v. Thorndike & Hix, Inc., 224 Mass. 413, 112 N.E. 1025;Ruffin v. Coca Cola Bottling Co., 311 Mass. 514, 42 N.E.2d 259;McCabe v. Boston Consolidated Gas Co., 314 Mass. 493, 50 N.E.2d 640, on which no negligence was shown.

The main question in this case is whether the plaintiff is to be denied relief in this action of tort for negligence merely because she had no contractual relation to or privity of contract with the defendant.2 We need not discuss the declaration (see Mitchell v. Lonergan, 285 Mass. 266, 271, 189 N.E. 39;Gahn v. Leary, 318 Mass. 425, 61 N.E.2d 844), for unless the plaintiff is to be denied relief on the ground of want of privity of contract we see nothing defectivein the declaration. Therefore we address ourselves to the main question whether a manufacturer of perfume can be liable for negligence to a remote vendee.

Plainly the defendant, when it manufactured and bottled its perfume, including the bottle in question, and put it into the channels of trade, expected that those channels would carry each bottle into the hands of some ultimate consumer who would be likely to apply the contents to her skin. If any bottle should contain a harmful ingredient, injury to some unknown consumer rather than to a middleman or retailer must have been anticipated.

In principle, a manufacturer or other person owning or controlling a thing that is dangerous in its nature or is in a dangerous condition, either to his knowledge or as a result of his want of reasonable care in manufacture or inspection, who deals with or disposes of that thing in a way that he foresees or in the exercise of reasonable care ought to foresee will probably carry that thing into contact with some person, known or unknown, who will probably be ignorant of the danger, owes a legal duty to every such person to use reasonable care to prevent injury to him.3 This statement of the principle conforms to the rule that a failure to take special precaution against a danger that is only remotely possible is not negligence. Marengo v. Roy, 318 Mass. 719, 63 N.E.2d 893. In the application of the principle it is immaterial whether or not the conduct of a defendant amounted to a breach of the contract between him and the immediate buyer from him. The duty is not created by contract, but is an instance of the general human duty not to injure another through disregard of his safety.4

The principle stated in the preceding paragraph has been applied in many decisions. In Sarna v. American Bosch Magneto Corp., 290 Mass. 340, 195 N.E. 328, the defendant deposited an abandoned metal tank upon a dump on land of a stranger. The defendant should have realized that the tank still contained a poisonous gas and that someone would be likely to try to salvage parts of the metal. Two persons did so, and were killed by inhaling the gas. In permitting recovery for their death, we said (290 Mass. at page 343, 195 N.E. at page 330), ‘In principle it makes no difference whether the dangerous article is started on its way toward contact with the injured person by sale or by depositing it in some frequented spot.’ In Michell v. Lonergan, 285 Mass. 266, 189 N.E. 39, the plaintiff was hurt through a defect in an automobile in which he was riding as a guest of one to whom the defendant had let it without proper inspection. Recovery in tort was allowed, although there was no contractual relation between the parties. In Sojka v. Dlugosz, 293 Mass. 419, 200 N.E. 554, the plaintiff recovered for being accidentally shot by a boy to whom the defendant had entrusted a gun without proper instruction. In Barabe v. Duhrkop Oven Co., 231 Mass. 466, 121 N.E. 415, the supplier of a defective oven to a tenant was held liable to the landlord for a fire caused thereby. In Barrett v. Builders' Patent Scaffolding Co., Inc., 311 Mass. 41, 40 N.E.2d 6, a painter recovered against one who had furnished a defective scaffolding to his employer. The principle is further illustrated by Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 167 N.E. 235, and Farley v. Edward E. Tower Co., 271 Mass. 230, 171 N.E. 639, 86 A.L.R. 941. See also Stevens v. Reyn, 220 Mass. 332, 107 N.E. 945;Galliher v. Stewart. 310 Mass. 77, 80, 37 N.E.2d 125.

In the celebrated case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440, the Court of Appeals, speaking by Cardozo, J., held the manufacturer of an automobile liable to a remote vendee for injury caused by failure properly to inspect a wheel, bought from another maker, which had in it a hidden but discoverable defect that caused it to collapse. And in Smith v. Peerless Glass Co., Inc., 259 N.Y. 292, 181 N.E. 576, the same court held the manufacturer of the bottle in which carbonated water was put up by another, liable to a waitress at a soda stand who was...

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