Corprew v. Geigy Chemical Corp., 34

• Decision Date: 11 October 1967
• Docket Number: No. 34,34
• Citation: 157 S.E.2d 98,271 N.C. 485
• Parties: John H. CORPREW v. GEIGY CHEMICAL CORPORATION and Geigy Agricultural Chemicals.
• Court: North Carolina Supreme Court

Page 98

157 S.E.2d 98

271 N.C. 485

John H. CORPREW v. GEIGY CHEMICAL CORPORATION and Geigy Agricultural Chemicals.

No. 34.

Supreme Court of North Carolina.

Oct. 11, 1967.

Hall & Hall by John H. Hall, Elizabeth City, for plaintiff appellant.

Leroy, Wells, Shaw & Hornthal, by Dewey W. Wells, Elizabeth City, for defendant appellees.

PARKER, Chief Justice.

Do the averments in the complaint disclose a cause of action? In determining the effects of its allegations, G.S. § 1--151 requires 'for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.' Defendants' demurrer admits, for the purpose of testing the sufficiency of the pleadings, the truth of factual averments well stated and all relevant inferences of fact reasonably deducible therefrom. It admits facts stated on information and belief as well as facts alleged on personal knowledge. Reynolds v. Murph, 241 N.C. 60, 84 S.E.2d 273. A demurrer does not admit inferences or conclusions of law. 3 Strong, N.C. Index, Pleadings § 12. A complaint must be fatally and wholly defective before it will be rejected as insufficient. Guerry v. American Trust Co., 234 N.C. 644, 68 S.E.2d 272; 3 Strong, ibid.

The responsibility of a contracting party to a third person with whom he has made no contract has a long history and has presented many perplexing problems. The first obstacle which arose is the fact that there has been no direct transaction between the plaintiff and the defendant which usually is expressed by saying that they are not in 'privity' of contract. We are writing a court opinion and not an article in a law magazine or in a textbook. Anyone who desires to read in minute detail the recent developments in this field can see Professor William L. Prosser's article, 'The Assault Upon the Citadel (Strict Liability to the Consumer),' 69 Yale L.J. 1099 (1960); Prosser, 'The Fall of the Citadel (Strict Liability to the Consumer,)' 50 Minn.L.Rev. 791 (1966); Dillard and Harris, 'Product Liability: Directions and the Duty to Warn,' 41 Va.L.Rev. 145 (1955); Prosser, Law of Torts, 658--96 (3rd Ed. 1964), which is Ch. 19, 'Liability of Contracting Parties to Third Persons.'

The case of Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (Ex.1842), laid down 'horse and buggy' law for a 'horse and buggy' age--the law that one furnishing chattels to another owes no duty of care to a third person with whom he is not in privity of contract. Such a rule does not conform to modern conditions. Under modern marketing conditions a manufacturer places its goods upon the market in sealed containers, and the container without substantial change is sold to the ultimate purchaser in the condition in which it is placed by the manufacturer on the market for sale. By placing its goods upon the market, the manufacturer represents to the public that they are suitable and safe for use, and by packaging, advertising, and otherwise, frequently upon a national scale, it does everything it can to induce that belief. The middleman is no more than a conduit, a mere mechanical device through which the thing is to reach the ultimate consumer. The manufacturer has invited and solicited the use of its product, and when it leads to disaster it should not be permitted to avoid the responsibility by saying that it made no contract with the consumer. The manufacturer should be held liable because it is in a position to insure against liability and add the cost to the product.

Construing the complaint liberally with a view to substantial justice between the parties, it is manifest that it alleges facts sufficient to constitute a cause of action for liability based on negligence. In Prosser, Law of Torts 665 (3rd Ed. 1964), it is said:

'Since the liability is to be based on negligence the defendant is required to exercise the care of a reasonable man under the circumstances. His negligence may be found over an area quite as broad as his whole activity in preparing and selling the product. He may be negligent first of all in designing it, so that it becomes unsafe for the intended use. He may be negligent in failing to inspect or test his materials, or the work itself, to discover possible defects, or dangerous propensities. He may fail to use proper care to give adequate warning to the user, not only as to dangers arising from unsafe design, or other negligence, but also as to dangers inseparable from a properly made product. The warning must be sufficient to protect third persons who may reasonably be expected to come in contact with the product and be harmed by it; and the duty continues even after the sale, when the seller first discovers that the product is dangerous. He is also required to give adequate directions for use, when reasonable care calls for them.'

See also to the same effect: 2 Harper and James, The Law of Torts, §§ 28.3 through 28.14, 'Liability of Maker for Negligence'; Annot. 81 A.L.R.2d 138, 'Liability of manufacturer or seller for injury caused by animal feed or medicines, crop sprays, fertilizers, insecticides, rodenticides, and similar products.'

This is said in 65 C.J.S. Negligence § 100(3), at 1094:

'As a general rule a manufacturer is under a duty to make an article carefully where its nature is such that it is reasonably certain to place life and limb in peril when negligently made, and he is liable to a third person for an injury resulting from a failure to perform this duty.'

In 65 C.J.S., ibid, at 1097--1099, it is said:

'The manufacturer is liable for an injury to a third person resulting from a failure to perform this duty, provided that such injuries could reasonably be anticipated; and this is the rule even though there is no contract or privity between the parties.'

A manufacturer of products, such as the one with which we are concerned in this case, has the duty of reasonable or due care. The status of the manufacturer of such products is not that of an insurer. Annot. 81 A.L.R.2d 146--47.

This is said in 2 Harper and James, The Law of Torts, § 28.1, at 1535: 'This older restrictive doctrine (non-liability in case of no privity) was well adapted to protect the manufacturer from burdens on his activity, but it did so at the expense of the victims of his mistakes. The citadel of privity has crumbled, and today the ordinary tests of duty, negligence and liability are applied widely to the man who supplies a chattel for the use of another. This trend was responsive to ever-growing pressure for protection of the consumer, coupled with a realization that liability would not unduly inhibit the enterprise of manufacturers and that they were well placed both to profit from its lessons and to distribute its burdens.'

This is also said in 65 C.J.S., ibid, at 1101--1102:

'(A)lthough a manufacturer is under a duty to foresee the probable results of normal use of the product manufactured, he does not have to foresee, and is not responsible for, the results of a use which departs from the normal, or could not reasonably have been foreseen or anticipated, or is in violation of an ordinance.'

In 65 C.J.S., ibid, at 1107, it is said:

'The doctrine of manufacturer's liability for damage resulting from defects in manufactured articles has been applied to damages to property as well as to personal injuries, irrespective of any privity or contractual relation between the parties.'

In 65 C.J.S., ibid, § 104, at 1135, it is said:

'Although a person may be negligent in the performance or omission of some duty owed to the person injured, no liability attaches unless it appears that there was a causal connection between such negligence and the injury, and the negligence charged was the proximate or legal cause of the injury, rather than a remote cause, or one merely causing a condition providing an opportunity for other causal agencies to act.'

We held in Gwyn v. Lucky City Motors, Inc., 252 N.C. 123, 113 S.E.2d 302, that the manufacturer of a truck is under a duty to the ultimate purchaser, irrespective of contract, to use reasonable care in the manufacture of the truck and to make reasonable inspection so as not to subject the purchaser to injury from a hidden or latent defect. The Court said: "The over-whelming weight of authority is to the effect that the manufacturer of a truck, like the one here in question, owes a duty to the public, irrespective of contract, to use reasonable care in its manufacture and to make reasonable inspection of the construction in the plant where the truck was manufactured.' (Citing numerous authorities).' In that case we reversed a judgment of involuntary nonsuit entered in a court below as to the Ford Motor Company.

In Tyson v. Long Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170, 78 A.L.R.2d 588 (1959), this Court held a manufacturer owes to the ultimate consumer the duty not to construct the article with hidden defects which might result in injury, and to give notice of any concealed dangers, but ordinarily the manufacturer is not liable for injuries from patent dangers.

In E. I. Du Pont De Nemours & Co. v. Baridon, 8 Cir., 73 F.2d 26, Baridon brought suit, alleging representations made by the Du Pont Company as to the suitability and safety of its product for disinfecting gladiolus bulbs and bulblets, its giving of directions for the use of Semesan, his reliance upon the representations and directions given, the harmful character of the Semesan when used as directed, which the Du Pont Company knew or should have known, and the loss of his bulbs and bulblets and his consequent damage. The Court in holding the Du Pont Company liable used this language:

'The defendant, however, contends that, because its product was intended to affect only plant life, and property alone was subject to injury, it owed no duty to the plaintiff, since it had no contract with him. With that contention we do not agree. Through its advertising and literature the defendant...