Hercules Powder Company v. Calcote

• Citation: 138 So. 583,161 Miss. 860
• Decision Date: 04 January 1932
• Docket Number: 29610
• Court: United States State Supreme Court of Mississippi
• Parties: HERCULES POWDER COMPANY v. CALCOTE

138 So. 583

161 Miss. 860

HERCULES POWDER COMPANY v. CALCOTE

No. 29610

Supreme Court of Mississippi

January 4, 1932

Division B

1 EVIDENCE.

Conjecture will not support verdict.

2 EXPLOSIVES.

Manufacturer of dynamite and caps was not liable for injuries resulting from defect in another manufacturer's fuse sold with dynamite and caps, absent negligence.

3 EXPLOSIVES.

Seller of explosives is not liable in any event for any defect therein.

4. EXPLOSIVES.

Dynamite and cap manufacturer was not responsible as manu-facturer as to another manufacturer's fuse sold, because dynamite caps, and fuse formed essential combination.

5. SALES. Certificate on box containing dynamite caps and fuse sold that contents had been inspected and were in good condition when packed held not warranty of absolute safety.

6. EXPLOSIVES.

Manufacturer of dynamite and caps selling another manufacturer's fuse with dynamite and caps held not liable for injuries resulting from defective fuse where only method of detecting defect was to burn it and plaintiff did that before beginning work.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county HON. W. A. ALCORN, JR., Judge.

Action by W. S. Calcote against the Hercules Powder Company. From the judgment, defendant appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

Hannah & Simrall, of Hattiesburg, for appellant.

A manufacturer does not owe any duty to the public or any subvendee of its vendee.

Ford Motor Company v. Myers, 151 Miss. 73, 117 So. 362; Kilcrease v. Galtney Motor Co. et al., 115 So. 193; Pate v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L. R. A. (N. S.) 469.

An examination of the various causes which have held that the manufacturer or vendor of an article is liable to third parties with whom he has no contractual relations shows that liabilty is made to depend upon some fraud, deceit or concealment or upon some negligence or omission of duty, such as reasonable inspection to discover defects in material or workmanship.

Pate v. Westbrook Elevator Company, 142 Miss. 419, 107 So. 552.

There seems to be no division among the authorities that a warranty by the seller of the quality of personal property sold is addressed alone to the first purchaser; that such warranty does not run with the title to the property, and subpurchasers cannot avail themselves of such warranty as against original seller. Some of the reasons for the rule are that there is no contractual relation existing between the original seller, the warrantor, and a subpurchaser. They are unknown to each other in the transaction. The seller who warrants does so alone for the benefit of his purchaser. He receives the purchase price as the consideration for the property and the warranty going with it.

Royal Feed & Milling Co. v. Thorn, 142 Miss. 92, 107 So. 282; Pease & Dwyer v. Somers Planting Co., 93 So. 673, 130 Miss. 147.

The fuse, which appellee testified caused his injury was not manufactured by the Hercules Powder Company.

In order that the master may be held to have been negligent in furnishing the servant with an unsafe appliance it must appear that the master knew, or by reasonable inspection thereof could have known, of the defect therein, and the burden of proving such actual or constructive knowledge on the part of the master is on the servant when attempting to recover damage for an injury sustained by him by reason of a defect in an appliance furnished by the master.

Lampton v. Atkins, 129 Miss. 660, 92 So. 638; Mobile & Ohio R. R. Co. v. Clay, 156 Miss. 288, 125 So. 825.

An express warranty will exclude an implied warranty on the same or a closely related subject. Thus an express warranty of quality will exclude an implied warranty of fitness for the purpose intended.

30 Cyc., p. 392.

The maxim res ipsa loquitur has no application to a breach of warranty but it relates solely and only to cases of negligence.

Oregon Auto Despatch v. Portland Cortage Co., 51 Ore. 583, 95 P. 498.

In view of the fact that the appellee was an experienced blaster and was wholly unable to offer any reason or excuse for this instant or premature burning of the fuse shows that the case made out by appellee is too conjectural to warrant a verdict.

Wheeler v. Laurel Bottling Works, 111 Miss. 442, 71 So. 743.

Flowers, Brown & Hester, of Jackson, and Brewer & Brewer, of Clarksdale, for appellee.

The Powder Company, under the circumstances shown, assumed the same liability that a manufacturer assumes. It was in a kindred business. It held itself out as a professional dealer in articles of this kind. Fuse and caps and dynamite all contain explosives. They are not used until they are put together. The Powder Company provides all three to be used in conjunction. The safety of one depends upon the soundness of the others.

The manufacturer who puts or causes the component parts to be put together, or accepts them as his own after they are assembled, must be presumed to know the nature and quality of the resultant compound which he solicits the public to purchase.

Thornhill v. Carpenter-Morton Co., 108 N.E. 474.

More care is required in the handling of articles of a dangerous character than is exacted of dealers in articles that are not in themselves dangerous.

Whether we find any difference between the liability of a mere regular distributor of such articles manufactured by the shipper and the liability of the manufacturer of the defective articles themselves, it certainly cannot be said that the distributor packing and shipping the articles may shut his eyes and exercise no more care for the protection of the users of the articles than if he were shipping apples or nails or salt.

Our court has intimated at least that in the case of the dealing in articles inherently dangerous it might be said that the manufacturer owes the public a duty irrespective of any contractual relation to use reasonable care in the manufacture of such articles.

Ford Motor Co. v. Myers, 151 Miss. 73, 117 So. 362.

The three articles to be combined for the blasting of stumps were carefully used by a man who knew how to use them. There was an unexpected result, one that does not come from the proper use of articles of this nature when the articles are in sound condition. The inference of defective condition is inevitable.

Waddle v. Southerland, 156 Miss. 540, 126 So. 201.

If there is nothing to explain or rebut the inference that arises from the way in which the thing happened it may fairly be found to have been occasioned by negligence. Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence; not that they compel such an inference but that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking.

Vargas v. Blue Seal Bottling Works, 126 So. 707; Lawson v. Nossek, 130 So. 669; Waddle v. Southerland, 156 Miss. 540, 126 So. 203.

Argued orally by James Simrall, for appellant, and by Ed Brewer, for appellee.

OPINION

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