Gen. Home Improvement Co. v. American Ladder Co. Inc.

Decision Date08 December 1947
PartiesGENERAL HOME IMPROVEMENT CO. v. AMERICAN LADDER CO., Inc., et al.
CourtNew Jersey Circuit Court

OPINION TEXT STARTS HERE

Action by the General Home Improvement Company, a corporation, and Joseph Evangelista, against the American Ladder Company, Incorporated, and another to recover damages for breach of implied and express warranties of a ladder purchased by corporate plaintiff from either or both of defendants and being used by individual plaintiff when injured as the result of a fall when one of its rungs broke. On defendant's motion to strike the first twenty-one counts of the complaint.

Motion denied in part and granted in part.

Braff & Litvak, of Newark, for plaintiffs.

Autenrieth & Wortendyke, of Newark, for defendants.

JOSEPH L. SMITH, Judge.

This is a motion to strike the first twenty-one counts of the complaint on the ground that they are insufficient in law. In general the complaint sets forth that the corporate plaintiff purchased a ladder from either or both of the defendants and that the individual plaintiff, an employee of the corporate plaintiff, was injured as the result of a fall while using the ladder when one of its rungs broke.

The corporate plaintiff seeks to recover damages for breach of implied and express warranties under the first six counts. The damages claimed are the sums of money which the corporate plaintiff was and is obliged to pay by virtue of an award made by the Workmen's Compensation Bureau in favor of the individual plaintiff as an employee.

R.S. 46:30-21 par. (1), N.J.S.A., provides: ‘Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.’

R.S. 46:30-21, par. (6), N.J.S.A., provides that an express warranty of condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith.

For the purposes of this motion we will therefore treat the first six counts as one. The question raised by the motion to strike these six counts calls for a determination as to whether or not the seller of an article not inherently dangerous is liable for the damages incurred by the purchaser as the result of the injury sustained by the purchaser's employee while using the article for the purpose for which it was intended. Counsel and the court have not found a case precisely in point within this State. The general rule of law is that the consequential damages sustained on account of the buyer's responsibility for the injury to its employee are not too remote for recovery in an action upon warranty against the manufacturer and seller where the manufacturer and seller knew the use to which the buyer intended to put the purchased article. London Guarantee & Accident Company v. Strait Scale Co., 322 Mo. 502, 15 S.W.2d 766, 64 A.L.R. 936; Mowbray v. Merryweather, 2 Q.B. (Eng.) 640-C.A; Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N.E. 657, 51 L.R.A. 781, 86 Am.St.Rep. 478.

The damages were within the contemplation of both the buyer and the manufacturer and must be considered the natural result of the breach of warranty.

Dayton Power & Light Co. v. Westinghouse Electric & Mfg. Co., 6 Cir., 287 F. 439, 37 A.L.R. 849. In Cassini v. Curtis Candy Co., 113 N.J.L. 91, at page 97, 172 A. 519, 521, Mr. Justice Perskie said: ‘there is a further basis of liability totally distinct from the theory of negligence. Liability for personal injuries may be predicated upon a breach of warranty, express or implied, of quality and fitness for a particular purpose. So in the case of Griffin v. James Butler Grocery Co., supra [108 N.J.L. 92, 156 A. 636], suit was brought by the injured plaintiff against the vendor and retailer direct, who sold her a can of peaches which caused physical injury. The court sustained a recovery upon an implied warranty, relying upon section 15 of the Sales of Goods Act. 4 Comp.St. 1910, p. 4650 § 15 [N.J.S.A. 46:30-21]:

‘In the last-mentioned type of case, however, the warranty inures only for those whose benefit the goods were bought.’

The question of whether or not the award of the Workmen's Compensation Bureau properly is a part of the recoverable damages of the corporate plaintiff remains. Damages must be such as the parties must have contemplated as the natural result of the breach of the contract under the special circumstances of the case. Berg v. Rapid Motor Vehicle Co., 78 N.J.L. 724, 75 A. 933. In Stave v. Giant Food Arcade, 125 N.J.L. 512, 16 A.2d 460 recovery was denied for the physical injury suffered by a child who became ill as a result of drinking the contents of a can of pineapple juice, on the theory of warranty, where the purchaser was not the child. However, Mr. Justice Bodine 125 N.J.L. at page 513, 16 A.2d page 460 said ‘the parents, however, properly sued for damages suffered by them by reason of expenses incurred by them in and about the care of their child by reason of the breach of the implied warranty of fitness. That presented a question for the jury under proper instruction.’

The analogy between allowing the parents to recover on the theory of breach of warranty for the expenses incurred in effecting a cure of the child and in allowing a master to recover on the same theory for the expenses imposed on him by law in compensating the injured employee appears to be very strong. However, in the case of Inter-State Telephone & Telegraph Company v. Public Service Electric Co., 86 N.J.L. 26, 90 A. 1062, the employer was not permitted to recover from a tort feasor for the compensation paid to an employee who had been injured by the negligence of the tort feasor on the ground that the compensation paid could not be distinguished from the ordinary compensation called wages. Recovery was also denied in Erie R. R. Co. v. Michelson, 111 N.J.Eq. 541, 162 A. 764 and New York, Susquehanna and Western Railroad Co. v. Huebschmann, 109 N.J.Eq. 40, 156 A. 330, on the ground that there was no implied contract or agreement either in law or in equity that reimbursement to the insurance company would be made out of the judgment recovered against the third party wrongdoer. In Newark Paving Co. v. Klotz, 85 N.J.L. 432, 91 A. 91, the employer was held to have no right by way of subrogation to the claim of the workman against the tort feasor. It was only by statutory amendment that the right of reimbursement has been secured by the employer and the insurance company against the third party tort feasor.

These cases can be distinguished from the cause of action set forth by Counts 1 through 6, in that they are all based on suits in tort for the negligence of third parties who caused personal injury to the employee. It is clear that at the...

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