Hasbrouck v. Armour & Co.

• Decision Date: 11 May 1909
• Citation: 139 Wis. 357,121 N.W. 157
• Court: Wisconsin Supreme Court
• Parties: HASBROUCK v. ARMOUR & CO. ET AL.

139 Wis. 357

121 N.W. 157

HASBROUCK

v.ARMOUR & CO. ET AL.

Supreme Court of Wisconsin.

May 11, 1909.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by F. M. Hasbrouck against Armour & Co. and another. From an order sustaining separate demurrers to the complaint, plaintiff appeals. Affirmed.

Dodge and Barnes, JJ., dissenting.

Among other references upon the part of the appellant were the following: 21 A. & E. Ency. Law (2d Ed.) pp. 461, 462; Huset v. Threshing M. Co., 120 Fed. 865, 59 C. C. A. 237, 61 L. R. A. 303;Schubert v. Clark Co., 49 Minn. 331, 51 N. W. 1103, 15 L. R. A. 818, 32 Am. St. Rep. 559;Watson v. Augusta Brg. Co., 124 Ga. 121, 52 S. E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. Rep. 157;Bright v. B. & R. Co., 88 Wis. 299, 60 N. W. 418, 26 L. R. A. 524;Cameron v. Mount, 86 Wis. 477, 56 N. W. 1094, 22 L. R. A. 512;Anderson v. Smith, 104 Minn. 40, 115 N. W. 743;Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455;Norton v. Sewell, 106 Mass. 143, 8 Am. Rep. 298;Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715;Elkins v. McKean, 79 Pa. 493.

Among references upon the part of the respondent Heymann were the following: Akers v. Overbeck, 18 Misc. Rep. 198, 41 N. Y. Supp. 382;Sheffer v. Willoughby, 163 Ill. 518, 45 N. E. 253, 34 L. R. A. 464, 54 Am. St. Rep. 483;Green v. Ashland Water Co., 101 Wis. 258, 77 N. W. 722, 43 L. R. A. 117, 70 Am. St. Rep. 911;McQuaid v. Ross, 85 Wis. 492, 55 N. W. 705, 22 L. R. A. 187, 39 Am. St. Rep. 864.

Among references upon the part of the respondent Armour & Co. were the following: Winterbottom v. Wright, 10 M. & W. 109; Huset v. Threshing M. Co., 120 Fed. 866, 57 C. C. A. 237, 61 L. R. A. 303;Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 31 L. R. A. 220, 52 Am. St. Rep. 146;Wellington v. Oil Co., 104 Mass. 64;Skinn v. Reutter, 135 Mich. 57, 97 N. W. 152, 63 L. R. A. 743, 106 Am. St. Rep. 384;Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621; Peters v. J. & J., 50 W. Va. 644, 41 S. E. 190, 57 L. R. A. 428, 88 Am. St. Rep. 909;Ives v. Welden, 114 Iowa, 476, 87 N. W. 408, 54 L. R. A. 854, 89 Am. St. Rep. 379; Heaven v. Pender, L. R. 11 Q. B. Div. 503; Zieman v. Elevator Co., 90 Wis. 497, 63 N. W. 1021;Heizer v. Mfg. Co., 110 Mo. 605, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 482;O'Neill v. James, 138 Mich. 567, 101 N. W. 828, 68 L. R. A. 342, 110 Am. St. Rep. 321;Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638;Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 513;Nelson v. Packing, 76 Ark. 353, 90 S. W. 288; Marvin C. Co. v. Ward, 46 N. J. Law, 19; McCaffrey v. Mfg. Co., 23 R. I. 381, 50 Atl. 651, 55 L. R. A. 822, 91 Am. St. Rep. 637;Salmon v. Libby et al., 114 Ill. App. 258;Slattery v. Colgate, 25 R. I. 220, 55 Atl. 639;Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253, 27 L. R. A. 583;Standard Oil Co. v. Murray, 119 Fed. 572, 57 C. C. A. 1; Lukens v. Freiund, 27 Kan. 664, 51 Am. Rep. 429.Eaton & Eaton (H. B. Jackson, of counsel), for appellant.

Thompsons, Pinkerton & Jackson and Williams & Williams, for respondents.

TIMLIN, J.

The complaint averred that the respondent Armour & Co. is a corporation of Illinois, licensed to do business in this state, and the respondent S. Heymann Company is a Wisconsin corporation. The former is engaged in the manufacture and sale throughout this state of toilet soap, and the latter is doing a mercantile business in the city of Oshkosh. Armour & Co. make and sell “Armour & Co.'s Toilet Soap No. 175” as a harmless article for the purpose of use in cleaning the face, hands, and body, and hold out to the public that this soap would supply every need for all toilet purposes, and guarantee the purity and harmlessness thereof, and that the soap is free and clear from all harmful ingredients or foreign substances which might injure persons using the same in the ordinary manner. On and prior to September 20, 1906, Armour & Co., its agents, servants, and employés, carelessly and negligently permitted and allowed a cake of the soap so manufactured by it to contain a needle or small round sharp piece of steel embedded therein. This made the use of said soap dangerous and was liable to cause injury to persons using the soap in the ordinary and usual manner. Some time prior to September 20, 1906, Armour & Co. sold and delivered to S. Heymann Company a quantity of this soap, in which was contained the defective piece or cake above described, in which the needle was so concealed as not to be visible to the naked eye. This was purchased by the latter from the former to be sold by the latter to the general public, and with the understanding that the soap was harmless and free from all dangerous particles or ingredients which might or which would injure the body of the person using the same for toilet purposes. Both defendants then jointly caused to be placed upon the market and sold to the general public this soap so negligently made containing this needle, and the plaintiff purchased from S. Heymann Company a quantity of this kind of soap and received the defective cake or piece above described. While properly using the soap so purchased for toilet purposes, the plaintiff was injured by this needle in the soap entering the palm of his right hand and producing the most serious consequences, including paralysis and disability.

The pleader says this injury was sustained by reason of “want of ordinary care and prudence of the defendants, their agents, servants, and employés, in manufacturing said soap and putting the same on the market for sale for general use and allowing a sharp piece of needle or steel to become embedded therein which was liable to injure persons using the same in the ordinary and usual manner.” Each of the defendants demurred: “(1) For that it appears * * * that several causes of action have been improperly united. (2) For that it appears * * * that the complaint does not state facts sufficient to constitute a cause of action against this defendant.” The pleader, appellant in this court, begins his brief with this statement: “This is an action in tort founded upon negligence alleged in the complaint set forth at length in the printed case.” In the face of this authoritative declaration of the purpose of the pleader, we shall spend no time searching for any other or different intent on his part. The averments of the pleading are appropriate to such declaration.

Before we can determine whether or not two causes of action are improperly united, we must find the two causes of action and then ascertain whether they are such as may be joined. The complaint avers that both defendants “jointly caused to be placed on the market and to be sold to the general public Armour & Co.'s toilet soap so carelessly and negligently made containing said sharp round piece of steel or needle.” But in the face of express averments in the same pleading that Armour & Co. manufactured the soap and negligently permitted a cake of soap so manufactured by it to contain this needle, that Armour & Co. sold and delivered to its codefendant quantities of its soap, including a box of soap containing this defective piece or cake of soap, and that the plaintiff purchased from S. Heymann Company, the last-quoted words must be considered a conclusion or inference of the pleader from the specific facts otherwise appearing in the complaint. So with the averment “that the purity and harmlessness (of the soap) was guaranteed by the said defendants, and the same to be free and clear from all foreign substances which might injure the person using the same in the ordinary and usual manner.” There being no purchase by the plaintiff from Armour & Co., but the latter having sold to S. Heymann Company, and S. Heymann Company thereafter to the plaintiff, and no joint act of sale or contract by the defendants, and the plaintiff's claiming in tort, this averment must also be deemed a legal inference of the pleader from the facts stated, and it must be considered that the soap was offered to the public successively in the usual manner by each defendant as a harmless and useful toilet article, or that in each successive sale the vendor so represented the soap to his immediate purchaser.

The first inquiry therefore is whether the foregoing pleading states a cause of action for negligence. Negligence in law consists in the omission or inadvertently wrongful exercise of a duty, which omission or exercise is the legal cause of damage to another. This duty may by operation of law arise between persons who by contract bring themselves into certain relations as bailor and bailee, carrier and passenger, master and servant, and others. Or the duty may be imposed independently of contract relations by statute, ordinance, or rule of the common law, and due only to particular persons or classes of persons as users of a highway or other way, abutting owners, fellow travelerson the highway, and others. Or the duty may be due to all persons, as the duty to refrain from acts apparently dangerous to life or limb, as when in play “the fool casteth firebrands and arrows”; or where one exercises a conceded right in a manner apparently and unnecessarily dangerous. The duty is, not to never fail, but not to fail under such circumstances that a reasonably prudent person might infer injury, as a natural and ordinary consequence of such failure, to one to whom the duty is due. In each of these relations legal duty may vary in kind or in the degree of care required, or the act or omission may vary in the obviousness of its consequences, and therefore legal investigation in order to judge of the quality of the act omitted or improperly performed...