Jones v. Gulf States Steel Co.

• Decision Date: 03 February 1921
• Docket Number: 6 Div. 181
• Citation: 88 So. 21,205 Ala. 291
• Parties: JONES v. GULF STATES STEEL CO.
• Court: Alabama Supreme Court

88 So. 21

205 Ala. 291

JONES v. GULF STATES STEEL CO.

6 Div. 181

Supreme Court of Alabama

February 3, 1921

Appeal from Circuit Court, Blount County; O.A. Steele, Judge.

Action by Lula Jones against the Gulf States Steel Company for damages for personal injuries. From the rulings on the pleadings, plaintiff took a nonsuit and appealed. Affirmed.

Russell & Johnson, of Oneonta, for appellant.

O.R Hood, of Gadsden, for appellee.

GARDNER J.

Appellant plaintiff in the court below, seeks to recover of the appellee damages sustained by an explosion occurring when a lump of coal was placed upon the fire. In numerous counts of the complaint she seeks recovery in a tort action resting the averments of negligence in that the employés of defendant in the operation of the mine negligently placed, or allowed to remain, some form of explosive in the coal.

The plaintiff did not stand in privity of contract with the defendant, and it is conceded by counsel for appellant that the general rule of law is that a contractor, manufacturer or vendor is not liable to third parties who have no contractual relation with him, for the construction, manufacture, or sale of the articles delivered. 24 R.C.L. 408 et seq., and authorities cited.

To this rule, however, there are well-recognized exceptions, as, for instance, where defendant has been guilty of fraud or deceit in the sale of the article, or where the thing causing the injury is of an obnoxious or dangerous character. In this latter exception has been included the manufacture and sale of dangerous drugs; the leading case in this country being Thomas v. Winchester, 6 N.Y. 397, 57 Am.Dec. 455. This authority has been subsequently cited in a umber of cases, and the exception is well-nigh universally recognized. This exception has, in modern times, been extended to the manufacture and sale of unwholesome foods placed in the channels of trade and intended for consumption by the public, and third parties without any privity of contract have been permitted to recover on the theory of negligence and want of due care on the part of the original manufacturer. Tomlinson v. Armour & Co., 75 N.J.Law, 748, 70 A. 314, 19 L.R.A. (N.S.) 923; Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633, 48 L.R.A. (N.S.) 213, Ann.Cas.1915C, 140; Bigelow v. Maine Cent. R.R. Co., 110 Me. 105, 85 A. 396, 43 L.R.A. (N.S.) 627.

The Supreme Court of Tennessee, in Liggett & Myers Tobacco Co. v. Cannon, 132 Tenn. 419, 178 S.W. 1009, L.R.A.1916A, 940, Ann.Cas.1917A, 179, declined to extend the rule so as to authorize such a suit against a manufacturer of tobacco; but the Mississippi court held to the contrary in Pillars v. R.J. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 365. The exception has likewise been extended to the manufacturer of soft drinks. Watson v. Augusta Brew. Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A. (N.S.) 1178, 110 Am.St.Rep. 157; Jackson Coco-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791; Crigger v. Coco-Cola Bottling Co., 132 Tenn. 545, 179 S.W. 155, L.R.A. 1916B, 877, Ann.Cas.1917B, 572.

In Bellingrath v. Anderson, 203 Ala. 62, 82 So. 22, a judgment by the ultimate consumer in an action of tort declaring upon the negligence of the manufacturer of beverages was sustained without discussion of the principles here involved, as they were not controverted or in any manner attacked by counsel.

By some courts the exception has also been extended to cover the negligent manufacturer of automobiles. Olds Motor Wks. v. Shaffer, 145 Ky. 616, 140 S.W. 1047, 37 L.R.A. (N.S.) 560, Ann.Cas.1913B, 689; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440. The exception was denied application in Cadillac Motor Car Co. v. Johnson, 221 F. 801, 137 C.C.A. 279, L.R.A.1915E, 287, Ann.Cas.1917E, 581.

Many authorities are also reviewed in Huset v. Case Threshing Co., 120 F. 865, 57 C.C.A. 237, 61 L.R.A. 303. See, also, Morton v. Sewall, 106 Mass. 143, 8 Am.Rep. 298; Bishop v. Weber, 139 Mass. 411, 1 N.E. 154, 52 Am.Rep. 715; Standard Oil Co. v. Parrish, 145 F. 829, 76 C.C.A. 405; Hasbrouck v. Armour & Co., 139 Wis. 357, 121 N.W. 157, 23 L.R.A. (N.S.) 876. In the foregoing authorities, with the notes cited thereto, will be found a discussion of the exceptions to the general rule above stated, and the particular exception insisted upon by counsel as applicable to the instant case.

It is argued with much force that if the ultimate consumer, who is without privity of contract, may recover against a manufacturer and dealer in drugs, canned foods, and bottled drinks, for damages resulting from the negligent manufacture of such articles, that the same rule should apply to the operator of a coal mine who disposed of coal for domestic purposes wherein, through the negligence of some of its employés, was concealed some explosive causing damage. We are persuaded, however, that the underlying principle of these cases, and the foundation for this exception to the general rule, is not broad enough to cover the case made by the negligence counts in this complaint. It is to be noted that the complaint does not allege that defendant was engaged in the sale of coal to the general public or to retailers for distribution to the public, but for aught that appears defendant was mining coal for its own use, and the procurement of coal by the plaintiff's husband was but a more or less isolated transaction. As said in 24 R.C.L. 514:

"It has been observed that the real ground of liability of the seller to an ultimate consumer is, more properly speaking, a duty one owes to the public not to put out articles to be sold upon the markets for use injurious in their nature, of which the general public have not means of inspection to protect themselves."

In the same authority and supported by numerous cases is the following "The foundation of liability here, as elsewhere, is a superior knowledge of the manufacturer or...