Lemon v. Buchan Lumber Co.
| Decision Date | 14 January 1960 |
| Docket Number | No. 536,536 |
| Citation | 251 N.C. 675,111 S.E.2d 868 |
| Parties | Kathleen Davis LEMON, Executrix of the Estate of Duncan E. Lemon, Deceased, v. BUCHAN LUMBER COMPANY, Incorporated, and Lowe's Asheboro Hardware, Inc. |
| Court | North Carolina Supreme Court |
Harold I. Spainhour, High Point, and Ferree & Anderson, Asheboro, for plaintiff appellant.
McElwee & Ferree, North Wilkesboro, for Buchan Lumber Company, Inc., defendant appellee.
Miller & Beck, Asheboro, for Lowe's Asheboro Hardware, Inc., defendant appellee.
Plaintiff's cause of action is laid in tort and not in contract. The fact alleged and admitted by the demurrer that defendant, having a contract to deliver yellow pine, had in fact delivered a mixture of yellow and white pine gave plaintiff no right of action. The damages, if any, resulting from the breach of contract by delivery of a less valuable article could only be claimed by the purchaser.
Plaintiff, if she is to recover, must allege some breach of duty owing her intestate by defendants which proximately caused his death. Recognizing this requirement, she alleges the lumber was sold for use as joists and framing and because of knots, holes, and the kind (white pine instead of yellow) was not fit for the purpose intended and was inherently dangerous.
Liability may be imposed on a manufacturer who sells an article likely to cause injury in its ordinary use because of some latent defect or because inherently dangerous in the use to which he knows it will be put. Dalrymple v. Sinkoe, 230 N.C. 453, 53 S.E.2d 437; Rulane Gas Co. v. Montgomery Ward, 231 N.C. 270, 56 S.E.2d 689.
It is not sufficient to merely allege that an article is inherently dangerous. Unless the mere descriptive name indicates the dangerous character, the pleader must set out the facts which are relied upon to fix the dangerous character of the article. We quoted, with approval, in Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14, 18, this excerpt from Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802; '* * * since the duty owed by a manufacturer to remove users does not require him to guard against hazards apparent to the casual observer or to protect against injuries resulting from the user's own patently careless and improvident conduct, the complaint was properly dismissed.'
The approval there given was repeated in Tyson v. Long Mfg. Co., 249 N.C. 557, 107 S.E.2d 170, where additional authorities are cited.
There were no hidden defects in the lumber sold to National Food Stores. Plaintiff alleges the distinction between white and yellow pine and the presence of knots in the boards were apparent and discoverable on a casual inspection. The allegations are not sufficient to hold defendants on the theory that they sold an inherently dangerous article or an article dangerous because...
To continue reading
Request your trial
-
Raftery v. Wm. C. Vick Const. Co.
...v. Equipment Co., 253 N.C. 355, 117 S.E.2d 21 (1960); Gwynn v. Motors, Inc., 252 N.C. 123, 113 S.E.2d 302 (1960); Lemon v. Lumber Co., 251 N.C. 675, 111 S.E.2d 868 (1960); Tyson v. Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170 (1959). Thus, if the condition precedent to the maintenance of......
-
Swaney v. Peden Steel Co., 523
...and that it cannot be held liable for an injury which occurred from a use it could not reasonably have anticipated. Lemon v. Buchan Lumber Co., 251 N.C. 675, 111 S.E.2d 868; Anno: Products Liability--Building Supplies, 78 A.L.R.2d 696, 701; International Derrick & Equipment Co. v. Croix, Th......
-
McCollum v. Grove Mfg. Co.
...who sells a product that is inherently dangerous. Wyatt v. Equipment Co., 253 N.C. 355, 117 S.E.2d 21 (1960); Lemon v. Lumber Co., 251 N.C. 675, 111 S.E.2d 868 (1960); Davis v. Siloo Inc., 47 N.C.App. 237, 267 S.E.2d 354, disc. review denied, 301 N.C. 234, 283 S.E.2d 131 (1980). We conclude......
-
Nationwide Mut. Ins. Co. v. Don Allen Chevrolet Co., 245
...state. Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14; Tyson v. Long Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170; Lemon v. Buchan Lumber Co., 251 N.C. 675, 111 S.E.2d 868. Here, according to plaintiff's allegations, the alleged known defective condition was obvious, not latent; and such ......