Isbell v. Biederman Furniture Co.

• Decision Date: 05 April 1938
• Docket Number: No. 24204.,24204.
• Citation: 115 S.W.2d 46
• Parties: ISBELL v. BIEDERMAN FURNITURE CO.
• Court: Missouri Court of Appeals

115 S.W.2d 46

ISBELL v. BIEDERMAN FURNITURE CO.

No. 24204.

St. Louis Court of Appeals. Missouri.

April 5, 1938.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Reports."

Action by Blanche E. Isbell against the Biederman Furniture Company, a corporation, for injuries sustained when a bed purchased by plaintiff's husband from defendant collapsed owing to an alleged defect. From a judgment for defendant, plaintiff appeals.

Judgment sustaining demurrer affirmed and judgment taxing costs and authorizing the execution reversed.

Earl M. Pirkey, of St. Louis, for appellant.

Karol A. Korngold, of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This suit was begun in the circuit court of the city of St. Louis by the fiing of a petition on March 15, 1935, which, caption and signatures omitted, reads as follows:

"Plaintiff states:

"That defendant was at the times herein mentioned and still is a corporation engaged in conducting a retail furniture store in The City of St. Louis, Missouri:

"That on or about September 23, 1932 in said City plaintiff's husband purchased from defendant at said store in The City of St. Louis, Missouri, for plaintiff and himself a bed and its attachments and defendant sold and delivered said furniture to plaintiff's home in said City for use by plaintiff and said husband, and defendant knew before said sale that said bed was being purchased for use by plaintiff and said husband:

"That at the time said bed and its attachments were purchased as aforesaid and at all times thereafter until and at the time plaintiff was injured on or about February 12, 1933, said bed was not reasonably safe for plaintiff to use by reason of the fact that a piece on which boards or slats of said bed rested was weak and contained a knot and was insufficiently attached and was of insufficient strength for use by plaintiff and of insufficient strength for the use to which it was intended:

"That defendant knew or by the exercise of ordinary care would have known of the above described condition of said bed and attachments and of the matters and things concerning said bed and attachments above set out before defendant delivered said bed and attachments as aforesaid, and after defendant knew or by the exercise of ordinary care would have known that said bed was not reasonably safe for use by plaintiff and that a piece on which the boards or slats of said bed rested was weak and contained a knot and was insufficiently attached and was of insufficient strength for use by plaintiff and was of insufficient strength for use in said bed defendant thereafter negligently sold and furnished said bed and the parts above mentioned to said husband for use by him and plaintiff all without protection or notice of any kind to her or said husband:

"That plaintiff's injuries herein mentioned were directly caused by the negligence of defendant herein mentioned:

"That on or about February 12, 1933 by reason of the negligence of defendant herein mentioned, while plaintiff was on said bed, said piece of said bed on which said slats rested by reason of said condition concerning it above set out broke, whereby plaintiff was caused to fall and to strike and be struck by objects and to be strained and sprained and twisted and compressed whereby she was caused to suffer a miscarriage and great pain of body and mind and to receive a severe nervous shock and to become sick:

"That by her injuries so sustained plaintiff has suffered and will suffer great pain of body and mind and her digestion and all her internal organs have become permanently deranged and weakened and affected with pain and soreness and her health and strength are permanently weakened and she has received permanent nervous injuries all to her damage in the sum of $7,500 for which she asks judgment."

The defendant filed a demurrer to this petition based on the allegation that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer and thereupon plaintiff announced that she would not plead further, but would stand on her petition. Thereupon the court entered final judgment in favor of defendant, which reads as follows:

"It appearing to the Court that the defendant's demurrer to the plaintiff's petition having been sustained on the 16th day of January, 1936, and the plaintiff this day announcing that she will not plead further but will stand on her petition, it is ordered by the Court, upon motion, that judgment be entered herein in favor of the defendant and against the plaintiff.

"Wherefore, it is considered and adjudged by the Court, that the plaintiff take nothing by her cause of action and that the defendant be discharged and go hence without day, and that said defendant have and recover of the plaintiff the costs of this suit, and have therefor execution."

Thereupon the plaintiff duly perfected her appeal to this court, where she makes two assignments of error, viz.:

"1. The Court erred in sustaining the demurrer of defendant to plaintiff's petition.

"2. The Court erred in rendering a judgment in favor of defendant for costs against plaintiff and awarded execution."

It is shown by the record that prior to the filing of the demurrer the court had granted plaintiff permission to prosecute her suit as a poor person, hence the second assignment of error is leveled against that part of the judgment taxing costs against her and awarding execution.

We will discuss the first assignment of error.

After a careful examination of the authorities, we have reached the conclusion that the trial court correctly ruled on the demurrer to the petition. A bed, such as that described in the petition, is obviously not an article that in and of itself is imminently or inherently dangerous to the users thereof. Ordinary humans spend practically one-third of their span of life in bed. Therefore, we may properly assume that ordinary humans possess knowledge of the mechanism of an ordinary wooden bed.

The first question that confronts us is whether the plaintiff, the wife of the vendee, can maintain this action as against the vendor of a bed which is an article not in and of itself imminently and inherently dangerous.

There is a wide distinction between the sale of an article which is inherently dangerous and an article which is not inherently dangerous, and there is a distinction between the liability on the part of the manufacturer of articles inherently dangerous in and of themselves as well as articles not inherently dangerous, and the liability which might attach to a retail dealer of the two classes of articles.

45 Corpus Juris 893, has this text:

"A distinction between a dealer and a manufacturer is sometimes noted, and it is held that a dealer is under no duty or obligation to examine the articles which he sells to ascertain whether there are defects therein, and that he is not liable for an injury arising from such defects where he had no actual knowledge thereof."

While we realize that in passing on the petition as to whether it states a cause of action we must give every favorable inference to the allegations contained therein and to the legal effect of such allegations, but in respect to the charge in the petition that the defendant retail dealer knew, or by the exercise of ordinary care would have known, of the defective condition of the bed, yet we also cannot ignore the fact that the ordinary procedure is that the customer of a retailer usually examines the article he desires to purchase and that he might acquire some information thereby of its alleged defective construction and see the knot in the slat as well as the dealer himself.

We cite the following authorities in support of the proposition that plaintiff, the wife, not being a party to the contract of purchase, cannot maintain this action: Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, loc. cit. 611 et seq., 19 S.W. 630, 15 L.R.A. 821, 33 Am.St.Rep. 482; Tipton v. Barnard & Leas Mfg. Co., 302 Mo. 162, 257 S.W. 791; Huset v. Case Threshing Machine Co., 8 Cir., 120 F. 865, 61 L.R.A. 303; Field v. Empire Case Goods Co., 179 App. Div. 253, 166 N.Y.S. 509; Osheroff v. Rhodes-Burford Co., 203 Ky. 408, 262 S.W. 583; Bragdon v. Perkins-Campbell Co., 3 Cir., 87 F. 109, 66 L.R.A. 924.

In Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 19 S.W. 630, 632, 15 L.R.A. 821, 33 Am.St.Rep. 482, the court uses this language:

"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."

In the Heizer Case it is further held that if the article sold is inherently dangerous, the law casts upon the seller a duty towards third persons,...