Defore v. Bourjois, Inc.

Decision Date09 October 1958
Docket Number6 Div. 225
Citation105 So.2d 846,268 Ala. 228
PartiesCharlsie Marie DEFORE v. BOURJOIS, INC., et al.
CourtAlabama Supreme Court

McDonald & Moon, Birmingham, for appellant.

Sadler & Sadler and W. J. Sullivan, Jr., Birmingham, for appellee Bourjois, Inc.

Bowers, Dixon, Dunn & McDowell, Birmingham, for appellee Lee Drug Co.

MERRILL, Justice.

This appeal is from a judgment for defendants after the trial court gave the affirmative charge with hypothesis in their favor, and from the order overruling plaintiff's motion for a new trial.

Appellant, who lived in Birmingham, received a bottle of Evening in Paris perfume as a gift at Christmas time. The perfume was purchased in Montgomery. Later, when she started to open the bottle, there was a slight explosion, the bottle broke and her hand was cut and bled profusely.

The original complaint was against appellant Bourjois, a foreign corporation, Montgomery Fair, a corporation, and others. It was later amended by substituting Lee Drug Co., Inc., a corporation, for Montgomery Fair, and striking all other defendants except Bourjois. The complaint was again amended on June 28, 1956, and demurrer thereto was sustained. It was amended again and demurrer was overruled. Defendants Lee Drug Co. and Bourjois filed pleas of the general issue in short by consent. Upon trial, after plaintiff introduced her witnesses and defendants' answers to interrogatories and rested, defendants requested and received the affirmative charge with hypothesis.

Appellant concedes in brief that Lee Drug Company was entitled to the general affirmative charge, but says that Bourjois was not, contending it was liable under the manufacturers liability doctrine.

One of the argued assignments of error is that the court erred in sustaining the demurrer to the amended complaint filed June 28, 1956. The amended complaint filed on that date contained the allegation: 'Plaintiff avers that the Defendants negligently failed to select or inspect the glass container of the 'Evening in Paris' perfume received by the Plaintiff as aforesaid, which negligence consisted in this: That the glass container of the 'Evening in Paris' perfume received by the Plaintiff as aforesaid, was defective in that it contained a flaw or imperfection of such nature as to cause the said glass container to fracture upon the use by the Plaintiff of the glass container for the purpose for which it was intended by the Defendants; * * *.' The complaint upon which the cause was tried contained this addition: 'which such defect, flaw or imperfection a reasonable inspection would have disclosed.' This was the only difference in the two counts. It will be noted that both counts charged that 'the defendants negligently failed to select or inspect the glass container' and the concluding paragraph of both counts reads:

'Plaintiff avers that all of her said injuries and damages were proximately caused by the negligence of the Defendants in failing to select or inspect said glass container before offering said glass container and contents to the public for sale and use.'

Appellant would have been required to prove a 'reasonable inspection' under the allegations of the complaint of June 28. It is harmless error, if error at all, for the trial court to sustain a demurrer to a count when an amended count is added which contains all the allegations of the original count, but which adds matter which does not change the cause of action originally declared on, and places no additional burden of proof on the plaintiff. Morris v. Clark, 202 Ala. 324, 80 So. 406; McClusky v. Duncan, 216 Ala. 388, 113 So. 250; Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16; W. T. Rawleigh Co. v. Cone, 232 Ala. 127, 167 So. 274.

Appellant also argues that her attorneys were not allowed to argue the 'if you believe the evidence' hypothesis of the affirmative charge which was given by the trial court.

The record nowhere shows any request or any refusal to allow or permit any argument to the jury. The functions of this court in its appellate character are strictly confined to the action of trial courts upon questions which are presented to and ruled upon by them. We cannot put a trial court in error for failure to rule on a matter which, according to the record, was not presented to, nor decided by him, Clancy Lumber Co. v. Howell, 260 Ala. 243, 70 So.2d 239; Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308; or as otherwise expressed, 'Courts of last resort are without authority to put the lower court in error, in the absence of some ruling of such court showing or containing error.' Warren v. State, 18 Ala.App. 245, 90 So. 277.

The final assignment of error argued in brief is that the court erred in giving the affirmative charge with hypothesis.

The complaint, as finally amended, was framed, and the cause was tried, on the manufacturers liability doctrine. This doctrine applies in those limited cases where there is no privity of contract between the ultimate user and the manufacturer and where the manufacturer has negligently placed on the market a product which is inherently or imminently dangerous to human life or health, or which, although not dangerous in itself, becomes so when applied to its intended use in the usual and customary manner. Where the user thus sustains an injury which is the natural and proximate result of this negligence in the manufacture or sale of the article and if the injury might have been reasonably anticipated, then the manufacturer is liable to the user under the manufacturers liability doctrine. 65 C.J.S. Negligence § 100 (b); Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245; Altorfer Bros. Co. v. Green, 236 Ala. 427, 183 So. 415; Sterchi Bros. Stores v. Castleberry, 236 Ala. 349, 182 So. 474; Crane Co. v. Davies, 242 Ala. 570, 8 So.2d 196; Jefferson Standard Life Ins. Co. v. Watson, 242 Ala. 181, 5 So.2d 639; Jones v. Gulf States Steel Co., 205 Ala. 291, 88 So. 21, citing and discussing MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas. 1916C, 440; Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667 and 672.

Was the perfume bottle in the instant case inherently dangerous or imminently dangerous? We quote from the annotation in 42 A.L.R. 1243, at 1244:

'The term 'imminently dangerous' apparently has sometimes been used as synonymous with the term 'inherently dangerous.' To get the full significance of the few cases which have considered the question here raised, it is well to bear in mind the distinction between the two terms. The courts are practically agreed that the manufacturer of an article inherently dangerous is liable to a third person for personal injuries resulting from the failure of the manufacturer to exercise due care to protect anyone having proper occasion to use the article in the manner intended, by using such precautionary means as the character of the article requires. An article may be said to be inherently dangerous where the danger lies in the nature or character of the article. Gas, gasoline, poison, gunpowder, dynamite, etc., are illustrations of articles which are inherently dangerous. The manufacturer's sale of any of these articles as and for some other article not inherently dangerous will render him liable to anyone injured thereby. * * *'

Articles or substances held not to be inherently dangerous within the meaning of the rule include a chain, Employers' Liability Assur. Corp. v. Columbus McKinnon Chain Co., D.C.N.Y., 13 F.2d 128; a bar of soap, Barrango v. Hinckley Rendering Co., 230 Mass. 93, 119 N.E. 746; a cast-iron pipe elbow, Lee v. Walworth Co., D.C.N.Y., 1 F.R.D. 569; cattle manure, McMurray v. Vaughn's Seed Store, 117 Ohio St. 236, 157 N.E. 567; carbonic acid in bottled drinks, Graham v. Cloar, 30 Tenn.App. 306, 205 S.W.2d 764; a cosmetic box decorated with a metal star, Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334; a crate in which an appliance was packed, O'Neil v. American Radiator Co., D.C.N.Y., 43 F.Supp. 543; an electric body-vibrating machine, Robbins v. Georgia Power Co., 47 Ga.App. 517, 171 S.E. 218; an electric stove, Roettig v. Westinghouse Electric & Manufacturing Co., D.C.Mo., 53 F.Supp. 588; an elevator, McDonald v. Haughton Elevator & Machine Co., 60 Ohio App. 185, 20 N.E.2d 253, Zieman v. Kieckhefer Elevator Mfg. Co., 90 Wis. 497, 63 N.W. 1021; an exercising device, Heggblom v. John Wanamaker New York, 178 Misc. 792, 36 N.Y.S.2d 777; a flatiron, Pitman v. Lynn Gas & Electric Co., 241 Mass. 322, 135 N.E. 223; a gas stove, McCabe v. Boston Consol. Gas Co., 314 Mass. 493, 50 N.E.2d 640; a gate stop, Schindley v. Allen-Sherman-Hoff Co., 6 Cir., 157 F.2d 102; hair dye, Karr v. Inecto, Inc., 247 N.Y. 360, 160 N.E. 398; a hay baler, Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34 N.W.2d 853; a hot water tank, Giberti v. James Barrett Mfg. Co., 266 Mass. 70, 165 N.E. 19; lubricating oil, Berger v. Standard Oil Co., 126 Ky. 155, 103 S.W. 245, 11 L.R.A.,N.S., 238; mincemeat, Salmon v. Libby, McNeil & Libby, 114 Ill.App. 258; a nailed shoe sole, Kerwin v. Chippewa Shoe Mfg. Co., 163 Wis. 428, 157 N.W. 1101, L.R.A.1916E, 1188; a 'pear-burner,' Talley v. Beever & Hindes, 33 Tex.Civ.App. 675, 78 S.W. 23; a porch swing, Osheroff v. Rhodes-Burford Co., 203 Ky. 408, 262 S.W. 583; a refrigerator, Borg-Warner Corporation (Norge Division) v. Heine, 6 Cir., 128 F.2d 657; a sidesaddle, Bragdon v. Perkins-Campbell Co., 3 Cir., 87 F. 109, 30 C.C.A. 567, 66 L.R.A. 924; a sofa, Simmons Co. v. Hardin, 75 Ga.App. 420, 43 S.E.2d 553; a steel oil drum, Moore v. Jefferson Distilling & Denaturing Co., 169 La. 1156, 126 So. 691; a spring clamp with lugs to keep lid on glass jar, Crandall v. Stop & Shop, Inc., 288 Ill.App. 543, 6 N.E.2d 685; a voting machine, Creedon v. Automatic Voting Mach. Corporation, 243 App.Div. 399, 276 N.Y.S. 609, affirmed 268 N.Y. 583, 198 N.E. 415, and an ordinary wooden bed, ...

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