Larrabee v. Des Moines Tent & Awning Co.

• Decision Date: 06 July 1920
• Docket Number: 33275
• Citation: 178 N.W. 373,189 Iowa 319
• Parties: H. C. LARRABEE, Appellant, v. DES MOINES TENT & AWNING COMPANY et al., Appellees
• Court: Iowa Supreme Court

178 N.W. 373

189 Iowa 319

H. C. LARRABEE, Appellant, v. DES MOINES TENT & AWNING COMPANY et al., Appellees

No. 33275

Supreme Court of Iowa, Des Moines

July 6, 1920

Appeal from Polk District Court.--THOMAS J. GUTHRIE, Judge.

ACTION for damages for personal injuries resulting from negligence. At the close of the evidence, there was a directed verdict for each defendant. The plaintiff appeals.--Affirmed in part reversed in part.

Affirmed in part; reversed in part.

Frank T. Jensen and R. S. Milner, for appellant.

Miller Kelly, Shuttleworth & Seeburger and Nourse & Nourse, for appellees.

EVANS J. WEAVER, C. J., PRESTON and SALINGER, JJ., concur.

OPINION

EVANS, J.

I.

At the time of the injury complained of (March 15, 1917), the plaintiff was attending at Des Moines the state convention of a telephone association. The defendant Bittle was a photographer, who proposed to the association to take a group photograph of its members, and for that purpose caused seats to be erected for the convenient sitting of the group. These seats, upon Bittle's invitation, were occupied by a group of 30 or more; and, while occupied, the whole structure suddenly collapsed, whereby the plaintiff suffered a severe injury to his foot. These seats had been rented by Bittle from the Des Moines Tent & Awning Company, defendant, whose employees had put the structure together. This structure is referred to in the record as "circus seats." It was in the line of the business of the Des Moines Tent & Awning Company to furnish such seats for rental for temporary purposes. These particular seats had been bought from a reputable manufacturing company, engaged in the manufacture of such seats. This structure was composed of 22 pieces of timber, which were put together according to a formula, for the purpose of use. These pieces included uprights, or jacks, which were the support of the structure; upon the jacks rested stringers, or risers; upon the risers rested boards, which furnished the seating. There were three stringers, and three jacks, or uprights, under each stringer. The employees of the Des Moines Tent & Awning Company had finished the structure; and had left it in the possession and control of Bittle, who was to have the use of same for one hour. The collapse occurred within about 15 minutes from such time. The structure was constructed on the west side of the Chamberlain Hotel, facing west, and extending over the sidewalk into the street. The seats were arranged in tiers, the higher ones being about 9 feet high. Some of the jacks, or uprights, rested upon the sidewalk. Pedestrians passing along the sidewalk passed under the structure. The record does not disclose the real cause of the collapse. The plaintiff introduced evidence to show the accident and the injury suffered by him, and rested. His reliance is upon the doctrine of res ipsa, and he contends that the fact of the accident was sufficient to warrant the inference by the jury that it was the result of the negligence of the defendants. The defendants did not present a common defense. Each appeared by his own counsel, and filed a separate answer. Their liability respectively is not governed by the same rules. We shall, therefore, deal separately with the question of the liability of each, and deal first with that of the defendant Des Moines Tent & Awning Company.

There was no privity of contract or invitation between this defendant and the plaintiff. This defendant dealt with Bittle alone, and its contractual liability was one to Bittle alone. It delivered to Bittle the identical thing for which Bittle contracted, and caused it to be set up in the manner and at the place directed by Bittle.

It is broadly true that, where the charge of negligence is based upon a breach of duty arising out of contractual relations, no cause of action arises in favor of one not in privity to such contract. To this general rule there are exceptions. Such exceptions arise when one has, by sale or otherwise, put into circulation, so to speak, some noxious or imminently dangerous thing, which is likely to cause serious injury to any person into whose hands it may come. These include poisons not labeled, explosives, vicious animals, etc. This exception applies, not only to sales of personalty, but may also apply to the construction of structures imminently dangerous to human life, while such structure is within the possession and control of the wrongdoer. If the thing sold or constructed be not imminently dangerous to human life, but may become such by reason of some concealed defect, then a liability may arise against such vendor or constructor, if he knew of the defect and fraudulently concealed it. The liability in such case is predicted upon deceit. Subject to these exceptions, the general rule is stated by Wharton as follows:

"Thus a contractor is employed by a city to build a bridge in a workmanlike manner; and, after he has finished his work, and it has been accepted by the city, a traveler is hurt, when passing over it, by a defect caused by the contractor's negligence. Now, the contractor may be liable on his contract to the city for his negligence, but he is not liable to the traveler, in an action on the case for damages. The reason sometimes given to sustain such a conclusion is that otherwise there would be no end to suits. But a better ground is that there is no causal connection, as we have seen, between the traveler's hurt and the contractor's negligence. The traveler reposed no confidence on the contractor, nor did the contractor accept any confidence from the traveler. The traveler, no doubt, reposed confidence on the city that it would have its bridges and highways in good order; but between the contractor and the traveler intervened the city, an independent responsible agent, breaking the causal...