Laudeman v. Russell & Co.

• Decision Date: 20 May 1910
• Docket Number: No. 6,758.,6,758.
• Court: Indiana Appellate Court
• Parties: LAUDEMAN v. RUSSELL & CO. et al.

46 Ind.App. 32

91 N.E. 822

LAUDEMAN

v.RUSSELL & CO. et al.

No. 6,758.

Appellate Court of Indiana.

May 20, 1910.

Appeal from Circuit Court, Elkhart County; James S. Dodge, Judge.

Action by Edward S. Laudeman, administrator of Jesse M. Leeper, deceased, against Russell & Co. and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Deahl & Deahl and Harley A. Logan, for appellant. Davis & Schaefer and Anderson, Parker & Crabill, for appellees.

WATSON, J.

The appellant, after the averment of the death of decedent, and his appointment as administrator of decedent's estate, avers that the defendants, the Russell & Co. and the Arbuckle-Ryan Company, are organized corporations under the laws of Ohio, engaged in the manufacture and sale of portable steam engines; that the Arbuckle-Ryan Company of Indiana is engaged in the sale, exchange, and setting up of boilers and engines manufactured by Russell & Co. and the Arbuckle-Ryan Company of Ohio; that the Arbuckle-Ryan Company of Ohio and the Arbuckle-Ryan Company of Indiana were and are general agents for Russell & Co.; that about the first of the year 1906 the Arbuckle-Ryan Company of Indiana, through orders from the home office at Toledo, Ohio, and in behalf of Russell & Co., reconstructed and set up ready for sale a secondhand traction threshing engine, and caused the same to be exhibited for sale; that, prior to the time of the sale of said engine, the defendants, Russell & Co. and the Arbuckle-Ryan Company of Ohio, caused the said engine to be inspected, and gave out and published that the same had been tested for boiler resistance, and could be used with safety to life and property; that thereafter they sold this engine to Wesley Delkamp, with knowledge that the same was to be used as a threshing engine; that, while repairs were being made to said engine, said defendants caused the boiler of same to be incased in asbestos; that at the time of the sale and at all times thereafter the said boiler was not sound and safe, for the reason that a seam had rusted and worn for a distance of 18 inches in the iron forming the boiler near the bottom thereof and just back of the fly wheel, and the boiler by reason of this rusted seam was not of sufficient strength to resist the steam pressure required to operate said engine, even with the aid of the asbestos covering, which condition was known by defendants, or should have been known by them by the exercise of reasonable diligence on their part; that Delkamp purchased said engine as good and sound, relying upon the representations of the agents of said company; that said engine was sold to him by the defendants about March 28, 1906, and was thereafter never injured except through natural wear, tear, and rust, which rust at the time of the repair sale of the engine destroyed the iron as complained of, and rendered the same unsafe and wholly unfit for use, which condition was known, or ought to have been known, by the defendants; that said Delkamp was an experienced and cautious thresher, and used said engine for threshing purposes during the season of 1906 until the 17th day of September, 1906, on which day, while using said engine to furnish power for threshing, and while operating said engine in the customary manner with a safe and proper head of steam and sufficient water in the boiler, the boiler instantaneously, and without giving any indication of weakness, exploded at the weak place hereinbefore described, and tore a hole in said boiler, discharging steam with terrific force, and breaking off from said engine and boiler pieces of wood and iron, throwing them with violent force, some of which struck decedent, injuring him so that he died within a few minutes; that said decedent, Jesse M. Leeper, was familiar with threshing engines, their use and proper control, and was a fit and proper person to have charge of such engines; that at the time of the explosion he was assisting in the threshing and working in the vicinity of said engine, in the employment of the farmer whose grain was being threshed.

The assignment of errors challenges the sufficiency of the several paragraphs of the complaint. The complaint is based upon the theory that the engine repaired and sold by the appellees to Wesley Delkamp was dangerous to life and property in the condition it was when sold.

In this case, are the appellees, or any of them, liable to the appellant, whose decedent did not stand in privity of the contract made for the sale of the engine, or to any stranger thereto?

It has been said that “cases which involve the liability of a defendant to those with whom he does not stand in privity of contract may be grouped in three classes: First, where the thing causing the injury is of a noxious or dangerous kind; second, where the defendant has been guilty of fraud or deceit in passing off the thing; third, where the defendant has been negligent only in some respect with reference to the sale or construction of a thing not imminently dangerous.”

The principle which underlies the first class of cases is one where the article is imminently dangerous, and the manufacturer and vendor owe a duty to the public, “to all to whom it may come and whose life may be endangered thereby, to exercise caution adequate to the peril involved.” To this principle the sale of poisonous drugs under a false label has been applied. Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455;Peters v. Jackson, 50 W. Va. 644, 41 S. E. 190, 57 L. R. A. 428, 88 Am. St Rep. 909;Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715;Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298; Dixon v. Bell, 5 M. & S. 198; Huset v. J. I. Case, etc., Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303. In the latter case, it is said: “The leading case upon this subject is Thomas v. Winchester, 6 N. Y. 397 . A dealer in drugs sold to a druggist a jar of belladonna, a deadly poison, and labeled it “Extract of Dandelion.” The druggist filled a prescription of extract of dandelion, prepared by a physician for his patient. The patient took the prescription thus filled, and recovered of the wholesale dealer for the injuries she sustained. In Norton v. Sewall, 106 Mass. 143 , a recovery was had by a third party for the sale of laudanum as rhubarb; in Bishop v. Weber, for the furnishing of poisonous food for wholesome food; in Peters v. Jackson, for the sale of saltpeter for epsom salts; and in Dixon v. Bell, for placing a loaded gun in the hands of a child.” In each and all of these cases, it is clear that the natural and probable result of the acts of negligence of the manufacturer and vendor would not be inflicted upon the vendee, but extend to and be inflicted upon those who purchased from the vendee and who consumed the poisonous articles, or in any manner sustained injuries resulting from the negligence of the manufacturer and vendor.

Nor does this paragraph come within the second class for the reason that there is no averment of fraud or deceit. It is averred that the boiler was incased in asbestos, and that it concealed the defect in the boiler; but it does not aver that it was done for the purpose of concealing a known defect, as the only knowledge imputed to the appellees with reference to the defect in the boiler so covered with asbestos is constructive knowledge. The averments of the complaint as to this are as follows: “The boiler at this place was not of sufficient strength and thickness to resist and retain the steam pressure required to operate and drive said...