Leigh v. Wadsworth

• Decision Date: 14 March 1961
• Docket Number: No. 38819,38819
• Parties: H. B. LEIGH, Plaintiff in Error, v. Claribel WADSWORTH, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 849

361 P.2d 849

1961 OK 62

H. B. LEIGH, Plaintiff in Error, v. Claribel WADSWORTH, Defendant in Error.

No. 38819.

Supreme Court of Oklahoma.

March 14, 1961.

Rehearing Denied May 16, 1961.

Syllabus by the Court

1. In this jurisdiction technical accuracy in a pleading is not required. A petition, which in ordinary language alleges facts sufficient to show that plaintiff has been wronged, how he has been wronged, the damage he has sustained thereby, and that defendant perpetrated the wrong complained of and is liable therefor and asks judgment for the damage, is sufficient to state a cause of action, and a demurrer thereto is properly overruled.

2. Generally, as a matter of public policy, a builder's liability to third persons for negligent construction is terminated upon acceptance of the property by his grantee, but where the builder has willfully created a condition which he knows to be immediately and certainly dangerous to persons other than his grantee, who will necessarily be exposed to such danger, considerations of public policy do not require the application of the general rule.

Appeal from the District Court of Kay County; C. L. Armstrong, Judge.

Action to recover damages for personal injuries. From verdict and judgment thereon for plaintiff, defendant appeals. Affirmed.

LeRoy Blackstock, Tulsa, and Felix Duvall, Ponca City, for plaintiff in error.

Fitzgerald & Houston, Stillwater, and Armstrong & Burns, Ponca City, for defendant in error.

BERRY, Justice.

Defendant in error, Claribel Wadsworth, hereafter referred to as plaintiff, instituted this action against plaintiff in error, H. B. Leigh, hereafter referred to as defendant, to recover damages resulting from personal injuries sustained when the roof of the back porch to a frame house fell upon her. At the time of the accident plaintiff and her family occupied the house as tenants of a person who had purchased same from defendant's grantee. The defendant, a building contractor, built the house for resale.

The case was tried to a jury. The jury's verdict and judgment thereon were in favor of plaintiff. From order of trial court denying defendant's motion for new trial, he perfected this appeal.

Defendant bases his contention of error on the trial court's part on the propositions that (1) plaintiff's failure to allege in her amended petition upon which the case was tried that the acts of negligence set forth therein were the 'proximate cause' of plaintiff's injuries, rendered said petition vulnerable to defendant's demurrer thereto and that her failure to allege in the amended petition that defendant was guilty of 'willful negligence' also rendered the petition subject to said demurrer; that (2) defendant owed no duty to plaintiff and she cannot charge him with negligence because of lack of privity of contract; that (in the alternative) (3) the evidence fails to show that the porch as constructed was 'immediately and certainly dangerous'; that (4) defendant's requested instructions numbered '1', '2', '3' and '4' relating to the liability of a contractor to a third person should have been given in lieu of the instruction that was given on said subject.

Defendant's contentions will be considered in the order in which same are above stated.

In support of the contention first above mentioned, defendant cites Wyman v. Chicago, R. I. & P. Ry. Co., 76 Okl. 172, 184 P. 758, and Armstrong v. City of Tulsa et al., 102 Okl. 49, 226 P. 560. The cited cases do not, in our opinion, announce a rule of law to the effect that before a plaintiff can be said to have stated a cause of action in a case such as the instant case, he must allege as a conclusion in his petition that the acts of negligence set forth therein were the 'proximate cause' of the complained-of injury. To the contrary, the cases represent authority to the effect that a plaintiff must allege facts in his petition which tend to show that the defendant was negligent and which facts tend to show that defendant's negligent acts were the proximate cause of the injury. See 65 C.J.S. Negligence § 188(2), p. 905.

Our construction of said cases is in keeping with the rule announced in the first paragraph of the sylllabus to Pugh-Bishop Chevrolet Co. v. Duncan, 176 Okl. 310, 55 P.2d 1003, 1004, to this effect:

'In this jurisdiction technical accuracy in a pleading is not required. A petition, which in ordinary language alleges facts sufficient to show that plaintiff has been wronged, how he has been wronged, the damage he has sustained thereby, and that defendant perpetrated the wrong complained of and is liable therefor and asks judgment for the damage, is sufficient to state a cause of action, and a demurrer thereto is properly overruled.'

The ultimate facts alleged in the amended petition sufficiently showed that the acts of negligence set forth therein were the proximate cause of the accident and plaintiff's resulting injuries.

We are of the further opinion that the matter of plaintiff stating a cause of action in her amended petition was not contingent upon pleading a conclusion to the effect that defendant was guilty of 'willful negligence.'

Defendant cites Armstrong v. City of Tulsa et al., supra, in support of his contention that he is not liable to plaintiff because there was no privity of contract between them. In the cited case it was stated in substance that as a general rule an independent contractor is not liable to third persons for an injury caused by work done by the contractor where the work had been turned over to and accepted by the contractee prior to the injury.

In urging application of said rule, defendant points to the admitted fact that he built the house in the early part of 1949; that his purpose in building the house was to sell it and the land upon which it was built; that in April, 1949, defendant sold the house; that his grantee resold the house in February, 1951; that plaintiff rented the house from the last referred-to purchaser in March, 1951, which fact unquestionably show that there was no privity of contract between plaintiff and defendant at the time of her injury on August 7, 1951. However, for reasons hereinafter given, said facts, under present-day authority, do not serve to relieve defendant of liability.

In Crane Co. et al. v. Sears, 168 Okl. 603, 35 P.2d 916, 917, we held that lack of privity of contract between a person injured as the direct result of the defective condition of a manufactured article did not preclude said person recovering from the manufacturer damages attributable to said condition. In the second paragraph of the syllabus to said case this was said:

'Where a manufacturer with information before him of the nature of the use to which an article manufactured by him is to be put and from the nature of such use must know that if the article when put to such use, if defective, will be imminently dangerous to persons who he knows must come in contact therewith, a duty rests upon such manufacturer to use ordinary care to ascertain the condition of the article to see that it is safe. If he fails to exercise ordinary care in this regard, and as a result sells the article in a defective condition, he is liable for personal injuries to that class of persons who must necessarily come in contact with such article, and liability is not limited to those with whom the manufacturer contracts.'

In the body of the opinion it was made clear that this Court chose to follow the rule announced in the leading case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, to the general effect that if the nature of a finished product placed upon the market by a manufacturer to be used without inspection by his customers is such that it is reasonably certain to place life and limb in peril if the product is negligently made, it is then a thing of danger. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under duty to make it carefully.

The Crane Co. case is cited and quoted from with approval in Gosnell v. Zink, Okl., 325 P.2d 965. In the Gosnell case we quoted with approval this portion of the statement made by the annotator of the annotated notes beginning at page 569 of 164 A.L.R.:

'Under the modern doctrine, there is little doubt that a person who has had no direct contractual relations with a manufacturer may nevertheless recover from such manufacturer for damages to property caused by the negligence of the manufacturer in the same manner that such a remote vendee or other third person can recover for personal injuries. The modern doctrine may be regarded as allowing recovery for injury or damage to property in all instances where a case in tort law of negligence can be made out against the manufacturer--that is, where the requisite elements of foreseeability and breach of duty are established, where the manufacturer can be found to have been negligent, and such negligence was the proximate cause of the property damage.' At page 593 of 164 A.L.R.

We had occasion in Greenwood v. Lyles & Buckner, Inc., Okl., 329 P.2d 1063, 1065, to consider the proposition of whether a contractor is liable to a third person for damages resulting from negligence on the part of the contractor in creating a dangerous condition in performing his contract. We there said that 'In some of the earlier cases non-liability is said to follow from the fact that there is no privity of contract between the contractor and the injured third person, and, therefore, no duty owing. This theory has met with increasing disfavor. It is now generally conceded as an academic proposition that a duty in tort does exist in cases of this nature.'

At page 891 of the annotated notes beginning at page 869 of 58 A.L.R.2d, this was said by the annotator:

'In a number of cases, all of them of...