J. C. Penney Co. v. Morris

• Decision Date: 23 September 1935
• Docket Number: 31768
• Citation: 163 So. 124,173 Miss. 710
• Court: Mississippi Supreme Court
• Parties: J. C. PENNEY CO. et al. v. MORRIS

163 So. 124

173 Miss. 710

J. C. PENNEY CO. et al. v. MORRIS

No. 31768

Supreme Court of Mississippi

September 23, 1935

Division A

1 TRIAL.

In buyer's action against retailer for injury sustained from fall allegedly caused by heel of slipper coming off instruction that retailer who does not manufacture article sold is not liable for injury resulting to customer because of defect that was either not known to retailer or was defect that customer had equal opportunity with dealer to know held reversible error in failing to include element brought up by purchaser's contention, that dealer's salesman knowing that heel was loose, assured purchaser that it would not come off, and that purchase was made in reliance upon such statement.

2. NEGLIGENCE.

Vendor of chattel made by third person which is bought as safe for use in reliance upon vendor's profession of competence and care is subject to liability for bodily harm caused by vendor's failure to exercise reasonable competence and care to supply chattel in safe condition for use.

HON. J. L. TAYLOR, Special Judge.

APPEAL from circuit court of Harrison county HON. J. L. TAYLOR, Special Judge.

Action by Mrs. Annie Morris against the J. C. Penney Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

Carl Marshall, of Gulfport, for appellants.

It is familiar law in Mississippi that when the trial court errs in granting the losing party a new trial of a cause, and the losing party prevails with the jury in a second trial, the Supreme Court on appeal will reverse the judgment rendered in the second trial, reinstating the verdict in the first.

Ness Creameries v. Barthes et al., 170 Miss. 865, 155 So. 222.

If the learned trial court in the case at bar erred in vacating the verdict returned by the jury in favor of the appellants in the first trial because of supposed disqualification of the juror in question, it naturally follows that the judgment appealed from should be reversed, and the cause here dismissed.

Easterling Lbr. Co. v. Pierce, 106 Miss. 672, 64 So. 461.

A verdict may not be disturbed for slight, attenuated, or purely speculative reasons.

Brookhaven Lbr. & Mfg. Co. v. I. C. R. Co., 68 Miss. 432, 10 So. 66; 46 C. J., New Trial, sec. 48.

A party cannot take the chance of winning, and if unsuccessful complain of the choice of a juror that could have been objected to on his acceptance.

Richardson v. Foster, 73 Miss. 12, 18 So. 573, 55 Am. St. Rep. 481.

The action of the appellee against the appellants sounds exclusively in tort, being based upon alleged negligence of the appellants in selling her the pair of shoes. The action is not one sounding in contract.

Ozen v. Sperier et al., 150 Miss. 458, 117 So. 117; Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; Powell v. Plant, 23 So. 399.

A pair of shoes being merely an article of wearing apparel, never conceived to be inherently dangerous, the appellants did not manufacture those sold, but purchased them from a reputable and standard producer of such articles.

The proof showed without conflict that the heel of the shoe in question was attached by the same methods used in the manufacture of other shoes; and that any looseness of the heel testified to by the appellee was observed by her equally with the appellant Hersinger, they together concluding that the heel was safely attached.

A vendor of an article who is not its manufacturer, cannot be held liable for an injury resulting from defectiveness of manufacture, in the absence of proof that the vendor was chargeable with active negligence in concealing a known defect.

W. T. Pate Auto Co. v. W. J. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; J. F. Kerwin v. Chippewa Shoe Mfg. Co. et al., 163 Wis. 428, 157 N.W. 1101, L.R.A. 1916E, 1188; Birdsinger v. McCormick Harvesting Mach. Co., 3 L.R.A. (N.S.) 1047, 183 N.Y. 487, 76 N.E. 611.

It would be a strange rule that would prohibit retail dealers from boasting of the merits of their wares, manufactured by others, on pain of being held liable in damages for remote and improbable injuries arising from their use, unanticipated at the time of the sale.

55 C. J., Sales, 138.

H. H. Evans and Bidwell Adam, both of Gulfport, and Chalmers Potter, of Jackson, for appellee.

The court below committed no error in granting plaintiff's motion for a new trial.

4 C. J. 663; Thomas v. Carter, 117 So. 634; Veitch v. Southern R. R. Co., 126 So. 845; Conner v. Central of Ga. Railroad, 128 So. 289; Mills Lbr. Co. v. Hull, 131 So. 902; Scott v. National City Bank of Tampa, 146 So. 573.

One of the grounds for the new trial urged in the motion shows that the court erred in granting the instruction as follows: "The court instructs the jury that a retail dealer in merchandise who does not manufacture the article sold is not liable for an injury resulting to a customer because of a defect that was either not known to the retail dealer, or was a defect that the customer had an equal opportunity with the dealer to know; and if the jury believe from the evidence in this case that the said shoe heel did come off from a defect of manufacture, if such were the case, and that the plaintiff received injury therefrom, if such were the case, it is the sworn duty of the jury to return a verdict for the defendants, unless the jury has been satisfied by greater weight, or preponderance of the evidence, that said defect, if any, was known to the defendant, was unknown to the customer, and the customer did not have an equal opportunity with the retail dealer to discover the defect, if any, before the occurrence of the said injury."

Whenever a statement of fact is made by one who apparently knows of the fact of which he is talking, the injured party may rely upon such a statement without inquiry, although the means of correct information are within his reach.

Nash Mississippi Valley Motor Co. v. Childress, 125 So. 708.

The instruction is erroneous and, therefore, the granting of the new trial was proper, because where a person is chargeable with liability for a defective appliance, he is guilty of concealing this defect if he represents to the purchaser that the appliance is safe.

Olds Motor Co. v. Shaffer, 145 Ky. 616, 140 S.W. 1047, 37 L.R.A. (N.S.) 560; Pearcy v. Michigan Mutual Life Ins. Co., 111 Ind. 59, 60 Am. Rep. 673.

The defendant was not entitled to a directed verdict.

A seller of an article which is not inherently dangerous but is rendered dangerous by a defect is liable to an injury to the third party from the defect, where he has knowledge of the defect and failed to give warning or notice thereof to the purchaser, or conceals the defect or represents the article to be safe and sound.

45 C. J. 492.

OPINION

Smith, C. J.

This is an appeal from a judgment awarding...