Lenz v. Standard Oil Co. of N.Y.

• Decision Date: 26 June 1936
• Citation: 186 A. 329
• Parties: LENZ v. STANDARD OIL CO. OF NEW YORK. SAME v. BAILEY.
• Court: New Hampshire Supreme Court

186 A. 329

LENZ

v. STANDARD OIL CO. OF NEW YORK.

SAME

v. BAILEY.

Supreme Court of New Hampshire. Hillsborough.

June 26, 1936.

Exceptions from Superior Court, Hillsborough County; Young, Judge.

Actions on the case for negligence by Henry Lenz against the Standard Oil Company of New York and against Emery W. Bailey. To review orders of nonsuit plaintiff excepts.

Exceptions overruled.

Two actions on the case for negligence, to recover damages for personal injuries alleged to have been caused to the plaintiff by ethyl gasoline manufactured by the defendant corporation and sold to him by the defendant Bailey. Trial by jury. At the close of the plaintiff's evidence, nonsuits were ordered by Young, J, and the plaintiff excepted.

The plaintiff's evidence tended to prove the following facts: The plaintiff is the owner and operator of a motor truck. During the early part of February, 1932, in the hope of obtaining additional power, the plaintiff began using ethyl gasoline, so-called, in his truck. On the night preceding the events hereinafter stated, the tank of the plaintiff's truck was filled with ethyl gasoline at the defendant Bailey's filling station. This gasoline was manufactured by the defendant corporation and sold by it to the defendant Bailey for distribution to the general public.

Attached to the pump from which this gasoline was delivered there was a sign six inches wide and seven inches high, giving notice that the gasoline contained lead. The exact wording of the sign was in controversy by reason of the fact that signs of two types had been in use before the date of the trial. One type contained these words: "For use as a motor fuel only, contains lead (tetra ethyl)." The other type of sign read as follows: "Contains lead (tetra ethyl) and is to be used as a motor fuel only. Not for cleaning or other use. Avoid spilling." The plaintiff testified that prior to the date of this purchase he had never noticed any signs upon the gasoline pump at the defendant Bailey's station and that his attention had never been called to any such signs.

Upon the following day, after making a trip to Lawrence, the plaintiff had occasion to drain the tank of the truck in order to permit the repair of a leak therein. In order to do so, he had to get underneath the truck and unscrew a plug in the bottom of the tank. During the course of this operation, some of the gasoline ran down his arm from the wrist to the elbow and soaked the sleeves of two shirts which he was wearing at the time. It caused a burning sensation to his arm. He therefore rolled up his sleeves and rinsed the arm in cold water, subsequently replacing his sleeves, which continued to show dampness for a space of about three hours. When he got home at the end of that time, his arm appeared to be "burned" and "red." The next morning it was covered with "pimples" or "blisters" and "it burned and felt sore." At the end of three days he consulted a doctor because he had "a kind of carbuncle" on his wrist. Subsequent analysis demonstrated that he had contracted a severe streptococcus infection, as a result of which he was disabled for several weeks and incurred substantial expense for medical and surgical treatment and hospital care. There was medical testimony to the effect that tetra ethyl of lead is an irritant and an active poison and that its effect on the plaintiff's arm was probably to devitalize the skin and thus permit the entry of the germs which caused the infection.

Other facts are stated in the opinion.

Sullivan & Sullivan and Thomas E. Dolan, all of Manchester, for plaintiff.

Hamblett & Hamblett and Robert B. Hamblett, all of Nashua, for defendant corporation.

McLane, Davis & Carleton and William L. Phinney, all of Manchester, for defendant Bailey.

BRANCH, Justice.

The defendant corporation takes the position that "no common law exception should be made to the general principle that there must be privity between the plaintiff and the defendant and that a seller is under no liability to anyone other than a purchaser for the character of the goods he sells." This suggestion cannot be seriously entertained. Although courts continue to reiterate the conventional formula which states, "The general rule is that a contractor, manufacturer, or vendor is not liable to third parlies who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles" [Huset v. J. I. Case Threshing Machine Co. (CCA.) 120 F. 865, 867, 61 L.R. A. 303], it has often been observed that "the exceptions to this rule are quite as well established as the rule itself" [Victory Sparkler, etc., Co. v. Latimer (CCA.) 53 F.(2d) 3, 5]. These exceptions are so numerous and so important that it may be doubted whether accuracy today permits the description of the above principle as "the general rule." It is well understood that the rule does not apply in the case of articles which are "recognized as inherently dangerous to life, limb or property" (Guinan v. Famous Players, etc, Corp, 267 Mass. 501, 167 N. E. 235, 240) or to articles which, by reason of their nature or the manner of their use, are peculiarly likely to become dangerous if defective (MacPhcrson v. Buick Motor Co, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440). The exceptions to the so-called "general rule" include chemicals, drugs, and medicines, foods, and beverages, tobacco, explosive substances, weapons, automobiles, and many other miscellaneous articles. For cases sustaining and illustrating these exceptions, see the exhaustive notes in 17 A.L.R. 672; 63 A.L.R. 340; 86 A.L.R. 947; 88 A.L.R. 527. As the law stands today, it is more accurate to say that, as a general rule, "An obligation rests upon the one who delivers an article, which he knows, or ought to know, to be peculiarly dangerous, to give notice of its character or bear the natural consequences of his failure to do so." Leavitt v. Fiberloid Co, 196 Mass. 440, 444, 82 N.E. 682, 684, 15 L.R.A (N.S.) 855.

For an enumeration of the elements which enter into the problem of a vendor's liability to the purchaser of potentially dangerous articles, the plaintiff refers us to the American Law Institute's Restatment of the Law of Torts, § 388, which reads in part as follows: "One who supplies directly or through a third person a chattel for another to use, is subject to liability * * * for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so." This quotation embodies a conservative statement of the prevailing law in this country as it exists today.

Judged in the light of the foregoing principles, we think that nonsuits were properly ordered in both of the present cases. We rest our decision upon the fundamental ground that there was no evidence to charge the defendant with knowledge that the ethyl gasoline from which the plaintiff's injury is claimed to have resulted...