Heizer v. Kingsland & Douglass Manuf'G Co.

• Court: Missouri Supreme Court
• Writing for the Court: Black
• Citation: Heizer v. Kingsland & Douglass Manuf'G Co., 19 S.W. 630, 110 Mo. 605, 33 Am.St.Rep. 482 (Mo. 1892)
• Decision Date: 23 May 1892
• Parties: HEIZER v. KINGSLAND & DOUGLASS MANUF'G CO.

19 S.W. 630

110 Mo. 605

HEIZER v. KINGSLAND & DOUGLASS MANUF'G CO.

Supreme Court of Missouri, Division No. 1.

May 23, 1892.

NEGLIGENCE — SALE OF DEFECTIVE MACHINERY.

A manufacturer is not liable for the explosion of the cylinder of a steam threshing machine sold by him, whereby an employe of the purchaser is killed, where it is not shown that the manufacturer knew that the cylinder was in a dangerous condition.

Appeal from circuit court, Audrain county; E. M. HUGHES, Judge.

Action by Lucy V. Heizer against the Kingsland & Douglass Manufacturing Company to recover damages for the death of her husband. Plaintiff obtained judgment. Defendant appeals. Reversed.

Hitchcock, Madill & Finkelnburg, for appellant. H. S. Priest and Geo. Robertson, for respondent.

BLACK, J.

The plaintiff brought this suit against the defendant, a corporation engaged in manufacturing and selling steam threshing machines, to recover damages for the death of her husband, who received injuries from which he died while assisting Ira Ellis in operating a machine sold by defendant to Ellis. Mr. Ellis applied to a Mr. McSwain, who was an agent for the Birdsell thresher, for a machine of that pattern. They went to St. Louis, but, being unable to get a machine of that make, they called at the defendant's shops. Ellis then gave the defendant a written order for a machine, by the terms of which defendant warranted it to be of good material and workmanship, and agreed to supply any parts which might fail during a specified time, free of charge. Though McSwain was not an agent for the defendant, still defendant agreed to pay him $25 for furnishing a purchaser, and he agreed with Ellis to start the machine. It was shipped to Ellis in due time, and he and his men used it for threshing oats on Saturday and Monday, McSwain assisting them on Saturday. On Tuesday morning the cylinder flew into pieces, one of which struck Heizer above the eye, inflicting the injuries from which he died. Heizer was assisting Ellis in operating the machine. So far there is no dispute as to the facts. The petition states, among other things, that defendant knew, when it constructed the machine, it would be used and operated by a number of persons in the employ of the persons to whom it should be sold; that defendant in selling the machine to Ellis warranted the same to be free from defects and of first-class material; that the cylinder was made of poor material, was defective in construction, and was too weak to stand the ordinary strain, all of which defects were known to the defendant's agents at the time of the sale; and that the machine gave way and flew into pieces by reason of such defects, etc. The evidence on the issue as to whether defendant made or should be deemed the maker of the machine is, in substance, this: The Kingsland & Ferguson Manufacturing Company, a corporation, made this machine in 1886, and went into liquidation in 1887, at which time the defendant was organized. The defendant then purchased this machine and the material of the old company then on hand, and continued to manufacture the same machines, and in August, 1888, sold this one to Ellis. Though this machine was made by the old company, still the contract of sale does not state by which company it was made, and there is evidence that the following words were printed on it: "Kingsland and Ferguson Thresher, made by Kingsland & Douglass Manufacturing Company." From the further evidence it appears that the cylinder, located in the front part of the thresher, was composed of a shaft which passed through "two outside and two inside heads." The outside heads were of solid cast iron. There were eight wrought iron cross-bars extending from one to the other outside head, with four wrought iron bands around the bars. The teeth were set in the cylinder so as to pass between rows of teeth set in a concave, which rested in grooves, and could be removed when desired. The concave had been removed just before the accident, and after it had been replaced, and some grain threshed, Heizer took his place at the footboard, and had commenced or was about to commence feeding, when the cylinder gave way while revolving at full speed. The evidence of several witnesses who were working at the machine is to the effect that nothing but grain and straw got into it, while one witness for the defendant gives it as his opinion that some foreign substance must have passed into the cylinder. Other evidence is to the effect that wrenches, bolts, and the like sometimes get into the straw and thence into the machine, but that the ordinary effect is simply to tear out some of the teeth. These witnesses say the bands and heads of the cylinder were broken into many pieces, and that the broken pieces of the heads indicated old cracks. The plaintiff produced two expert witnesses whose evidence is to the following effect: That the bands were irregular in thickness, varying from three eighths to three sixteenths of an inch; that they had been cut too short, and had to be drawn out; that the iron in them was of a poor quality for such use; that in one instance, at least, the weld united on one side only. These witnesses say the cast iron in the heads was of a low grade and contained earthy matter; that the broken pieces disclosed old cracks or places where the iron did not unite when moulded; that the heads were thus weakened from 40 to 60 per cent.; that an inspection of the heads before they broke would have disclosed the poor quality of the iron, but not the cracks or places where the iron did not unite; and that, in their opinion, the heads first gave way, and the other breakage followed as a consequence. The evidence for the defendant shows that this was one of 100 or 125 machines made in 1886; that they were all made out of like material; that with this exception they had all stood the test of practical use; that this machine was run daily during fair week at St. Louis in 1886, and again in 1887; that it had been twice tested,— once when made, and again just before it was shipped to Ellis; that the tests consisted in putting all the parts of the thresher in motion for three quarters of an hour, with the cylinder revolving at the rate of 1,240 revolutions per minute. Mechanics who made the cylinder testified that the bands were purchased in large quantities, rolled and ready for use; that they were of a good quality of iron, and that none of them broke at the welds. Their evidence is to the further effect that cylinder heads for a number of machines were made at the same time; that they were cleaned when moulded, and those that showed any defects were cast aside; that they were again examined when bored. These and other witnesses say the iron in the cylinder heads in question was of a good quality. On this state of the case the trial court refused to nonsuit the plaintiff, and of this ruling error is assigned.

In considering this question we must treat the defendant as both manufacturer and vendor of the machine, since there is evidence tending to show that it sold the same as one of its own manufacture. The first question is whether the defendant is liable to the plaintiff for simple negligence. If there is any such liability it is because of a breach of duty owing by the defendant to the plaintiff's husband. If the defendant owed the deceased any duty whatever, that duty was created either (1) by the contract by which defendant sold the machine to Ellis, or (2) was a duty imposed by law upon defendant in addition to or independent of any mere contract duty. There is no doubt but a cause of action in tort often arises from the breach of a duty created by contract; but in such cases there must be some privity of contract between the defendant and the person injured. There being no privity of contract, the suit cannot be maintained. Roddy v. Railroad Co., 104 Mo. 234, 15 S. W. Rep. 1112; Winterbottom v. Wright, 10 Mees. & W. 109; Loop v. Litchfield, 42 N. Y. 351; Losee v. Clute, 51 N. Y. 494; Necker v. Harvey, 49 Mich. 517, 14 N. W. Rep. 503; Bank v. Ward, 100 U. S. 195; Safe Co. v Ward, 46 N. J. Law, 19; Curtain v. Somerset, (Pa.) 21 Atl. Rep. 244; Gordon v. Livingston, 12 Mo. App. 267; Kahl v. Love, 37 N. J. Law, 8; Whart. Neg. (2d Ed.) § 438. If this rule of law applies to the case in hand, then it is clear the plaintiff cannot recover for negligence in making and selling the machine; for Heizer was in no way a party to the contract by which defendant sold the machine to Ellis. There is no privity of contract between defendant and the deceased. But in many cases the law imposes duties additional to those specified in the contract, and sometimes independent of it. Thus the relation of common carrier and passenger being created, the law casts upon the carrier the duty of using care, and in some instances the highest care known to the law. And still more to the point are those cases where the law casts a duty to use due care, to third persons, upon the manufacturer or vendor of dangerous goods; as in case of sale of poisonous drugs or explosive oils. Thomas v. Winchester, 6 N. Y. 397; Norton v. Sewall, 106 Mass. 143; Wellington v. Oil Co., 104 Mass. 64; Hourigan v. Newell, 110 Mass. 470; Callahan v. Warne, 40 Mo. 131. Smith says: "The true question always is, has the defendant committed...