Genesee Cnty. Patrons Fire Relief Ass'n v. L. Sonneborn Sons, Inc.

• Decision Date: 27 February 1934
• Citation: 189 N.E. 551,263 N.Y. 463
• Parties: GENESEE COUNTY PATRONS FIRE RELIEF ASS'N v. L. SONNEBORN SONS, Inc., et al. CO-OPERATIVE FIRE INS. CO. OF WYOMING AND GENESEE COUNTIES v. SAME.
• Court: New York Court of Appeals Court of Appeals

263 N.Y. 463

189 N.E. 551

GENESEE COUNTY PATRONS FIRE RELIEF ASS'N

v.L. SONNEBORN SONS, Inc., et al.

CO-OPERATIVE FIRE INS. CO. OF WYOMING AND GENESEE COUNTIES

v.SAME.

Court of Appeals of New York.

Feb. 27, 1934.

Separate actions by the Genesee County Patrons Fire Relief Association, and by the Co-operative Fire Insurance Company of Wyoming and Genesee Counties, against L. Sonneborn Sons, Inc., and another. The action was dismissed as against the defendant the Rib-Stone Concrete Corporation. From a judgment of the Appellate Division (240 App. Div. 752, 265 N. Y. S. 927) in each of the actions affirming a judgment of the Trial Term, entered upon the verdict of a jury, in favor of the plaintiff in each action, and from an order denying motion for a new trial in each action, the defendant L. Sonneborn Sons, Inc., appeals.

Judgment in each case affirmed.

Appeal from Supreme Court, Appellate Division, Fourth department.

A. S. Gilbert, of New York City, for appellant.

Everest A. Judd, of Batavia, for respondents.

HUBBS, Judge.

Charles J. Call owned a farm. He entered into a contract with the defendant Rib-Stone Concrete Corporation to build and install a waterproof water tank in one of his barns. After the construction of the tank, an employee of the said defendant was engaged in applying a waterproofing preparation manufactured by the defendant L. Sonneborn Sons, Inc., and known as HydrocideNo. 889, to the interior of the tank when an explosion occurred in the tank which resulted in the destruction of the barn and certain personal property by fire.

In doing the work, an ordinary farm lantern with a globe was taken into the tank to furnish light. The fumes from the preparation being used came into contact with the flame in the lantern and caused the explosion.The plaintiffs, insurance companies, carried fire insurance policies on the property destroyed. They paid the loss and became subrogated to the rights of the insured against the defendants.

This action is to recover the amount paid to the insured, on the theory that the loss was occasioned by the negligence of the defendants. At the trial, the complaint against the defendant Rib-Stone was dismissed. A verdict was returned by the jury against the defendant Sonneborn, and the judgment based thereon has been unanimously affirmed by the Appellate Division. The trial court submitted two questions to the jury: First, whether Hydrocide No. 889 is an inherently dangerous commodity. Second, if so, whether the defendant Sonneborn was negligent in failing to give notice to the users of the preparation that it was inflammable and should not be brought into contact with an open flame. The defendant Sonneborn is a manufacturer of paints, varnishes, and waterproofing materials. The defendant Rib-Stone is engaged in constructing silos, water tanks, etc. It wrote to Sonneborn ordering two gallons of Hydrocide colorless waterproofing. In the letter it stated: ‘We would like to experiment with your Hydrocide #889 in connection with silos which we erect and would appreciate if you would send us about one gallon of this material.’

The two gallons of ‘Hydrocide Colorless Waterproofing,’ which is used for outside work where a colorless material is required, was shipped in gallon cans, each bearing a label which read in part, ‘Do not use near flame.’ The shipment also contained a one gallon can of Hydrocide No. 889, with a label which read ‘Hydrocide #889.’ The label did not contain any warning or notice that the contents were inflammable and should not be used near an open flame.

Rib-Stone had never used the preparation and did not know anything about it. Sonneborn wrote Rib-Stone that Hydrocide No. 889 was suitable for waterproofing the interior of silos, and that it could be applied in the same manner as paint, either with a brush or a spraying machine. When applied with a brush by an employee of Rib-Stone, as stated, it exploded and burned the barn in which it was being used.

It is conceded that the commodity was a secret preparation which contained 52 per cent. benzine and 6.7 per cent kerosene, and was highly inflammable.

There is no evidence that the smell of benzine was noticeable by one using the preparation. The employee using it at the time of the accident testified that he did not distinguish the odor of benzine, but that it to him smelled like paint. An expert for the plaintiff made various tests of the preparation under varying conditions, and testified that it was highly volatile and inflammable, that benzine is a hydrocarbon, that fumes therefrom when they reach the inflammable stage are toxic, and that an overexposure will cause death.

The evidence justified the finding of the jury that the preparation was an inherently dangerous commodity, and that, under the circumstances, the defendant Sonneborn was negligent in selling it to Rib-Stone without notice of its dangerous quality.

If this were an action by the employee to recover damages for personal injuries received as a result of the explosion, we would have no doubt that a judgment in his favor would have been justified. The old rule that there must be privity of contract between the manufacturer and the person injured to justify recovery of damages for the manufacturer's negligence has long been departed from in this jurisdiction.

In general terms, the rule of liability in this state established by numerous decisions of this court is that, where a manufacturer supplies an article or preparation, for immediate use in its existing state, which is inherently dangerous, the danger not being known to the purchaser and the danger not being patent, and where notice is not given of the danger or it cannot be discovered by a reasonable inspection, the manufacturer is legally liable for personal injuries received by one who uses the same in an ordinary, expected manner. Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455;MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440;Smith v. Peerless Glass Co., 259 N. Y. 292, 181 N. E. 576. Cf. section 267, Restatement of the Law of Torts; Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N. E. 474.

Here the manufacturer knew, or should have known, that the preparation was to be used by employees of the corporation purchaser in an inclosed structure. True it is that the correspondence referred to silos, but the water tank in which it was used was constructed of the same materials as silos but was not as large. Plaintiff's expert testified, however, that the same effect would be produced by its use in a silo.

The manufacturer also knew, or should have known, that the preparation contained 52 per cent. of benzine and 6.7 per cent. of kerosene and was inherently dangerous if exposed to an open flame in an inclosed structure. At least, the jury could have found that, in the exercise of reasonable care, the manufacturer could have acquired such knowledge.

With that knowledge which it had or should have had, it shipped the preparation, knowing the purpose for which it was to be used, without disclosing by label or otherwise the danger of using it in an inclosed structure near an open flame, although the two cans of ‘Hydrocide Colorless Waterproofing’ shipped in the same package each bore a label stating, ‘Do not use near flame.’

Since the manufacturer knew, or should have known, that the preparation was highly inflammable, the jury was justified in finding that it should have reasonably anticipated that it might be used near an open flame which would cause an explosion and fire which would destroy property and injure the person using it. Plaintiff's expert testified that lighting a match in the tank would have produced the same effect.

It is earnestly contended by appellant that, even though liability might exist for personal injuries resulting from the explosion, there is no legal liability for the property damage resulting.

It is urged that the rule imposing liability upon a manufacturer for damage to a third person, resulting from its negligence, is an exception to the general rule; that such liability does not exist in the absence of privity of contract; and that the liability should not be extended so as to make a manufacturer liable for damage to property upon the principle which establishes liability for personal injuries.

The argument leads to an illogical conclusion. If it were reasonably presumable that the preparation would be used near a flame and result in an...