Green v. Equitable Powder Mfg. Co.

• Citation: 94 F. Supp. 126
• Decision Date: 30 November 1950
• Docket Number: Civ. No. 928.
• Parties: GREEN v. EQUITABLE POWDER MFG. CO.
• Court: U.S. District Court — Western District of Arkansas

94 F. Supp. 126

GREEN v. EQUITABLE POWDER MFG. CO.

Civ. No. 928.

United States District Court W. D. Arkansas, Fort Smith Division.

November 30, 1950.

Gutensohn & Ragon and, John Harris, all of Fort Smith, Ark., for plaintiff.

Hardin, Barton & Shaw, Fort Smith, Ark., for defendant.

JOHN E. MILLER, District Judge.

Complaint was filed October 12, 1950, by the plaintiff seeking to recover damages against the defendant for personal injuries received as the result of a delayed explosion of dynamite. Plaintiff, an employee of Walco Construction Company, was engaged in blasting power line post holes and was using dynamite caps purchased by his employer from the defendant, which caps were designed to be detonated by electricity. Two theories are alleged as the basis for the prayed recovery, one sounding in contract and the other in tort. As to the former, it is alleged that defendant warranted that the detonation caps would explode and detonate the dynamite instantaneously whereas the caps actually detonated the dynamite in a delayed manner, and that plaintiff's injuries were the direct result of said cap being unfit and unmerchantable. In other words, plaintiff seeks to recover for the breach of the warranties of fitness of purpose and merchantability, which, in a proper case, are implied if not expressed. Plaintiff's second theory is based upon the alleged negligence of the defendant, its agents and employees, in delivering delayed action caps to plaintiff's employer instead of instantaneous caps with knowledge that such caps when used as an instantaneous cap might result in injuries to the person of an employee of said employer, plaintiff being such an employee.

Defendant has filed a motion to dismiss, and this motion is before the court for determination.

As grounds for its motion, defendant alleges that since it sold the dynamite caps to the Walco Construction Company, plaintiff's employer, there was no warranty attached to the transaction in favor of the plaintiff, a third party to the contract, and, therefore, plaintiff's cause of action based upon breach of warranty should be dismissed. As to the negligence cause of action, defendant asserts that inasmuch as there was no privity of contract between the defendant and the plaintiff, defendant owed no duty to the plaintiff, and is not responsible in negligence to the plaintiff as a third party to the transaction.

In opposition to the motion, plaintiff admits that in actions based upon alleged breach of warranty the general rule is that privity of contract is essential, but asserts that there is an exception to the rule in the sale of chattels of an inherently explosive or dangerous nature where the seller had knowledge of the nature of the dangers and of the uses to which the chattel would be put. And, as to negligence, plaintiff contends that liability is properly predicated upon foreseeability of the danger rather than privity of contract.

The court has read and considered the briefs submitted by the respective parties, and, in addition, has made an independent investigation of the legal questions presented. It appears from the pleadings and the briefs of the parties that the sale was made in Arkansas, the injuries were received in this State, and jurisdiction exists because of diversity of citizenship of the parties and the allegation of damages in excess of $3,000.00. Therefore, the law of Arkansas is controlling.

It is the duty of the court in this type case to apply the law of Arkansas as it finds it from the statutes of the State and the decisions of the Supreme Court of Arkansas. The court is not at liberty to reject principles and theories which are the prevailing law of this State which it might deem unsound or outmoded, regardless of the conclusions that it would reach were it empowered to adjudicate this case uninhibited by the law of Arkansas. Turning to the State decisions, it is found that the Supreme Court of Arkansas, in Drury v. Armour & Co., 140 Ark. 371, 374, 216 S.W. 40, 41, has limited breach of warranty actions to those cases wherein privity of contract exists. "It is contended, in the first place, that the court erred in requiring appellant to make an election as to the cause of action in the complaint he would stand upon. It is argued that, notwithstanding the fact set forth in the complaint that the sausage was not purchased by the consumer directly from appellee, but through an intermediate retail dealer, there was a warranty of the wholesomeness of the food product, and that plaintiff could maintain an action for the damages resulting from a breach of the warranty. This question is decided against appellant's contention in the case of Nelson v. Armour Packing Co., 76 Ark. 352, 90 S.W. 288, where Judge Battle, speaking for the court, said: `In the sale of provisions by one dealer to...