McPherson v. Gullett Gin Co.

• Decision Date: 12 May 1924
• Docket Number: 23878
• Court: Mississippi Supreme Court
• Parties: MCPHERSON v. GULLETT GIN CO. et al. [*]

100 So. 16

134 Miss. 771

MCPHERSON v. GULLETT GIN CO. et al. ^[*]

No. 23878

Supreme Court of Mississippi

May 12, 1924

Division B

APPEAL from chancery court of Quitman county, HON. C. L. LOMAX Chancellor.

Suit by J. J. McPherson against the Gullett Gin Company and others. Decree of dismissal, and complainant appeals. Affirmed.

Decree affirmed.

Lowrey & Lamb, for appellant.

The question presented is whether or not the matter alleged in the bill entitles the complainant to recover without reference to the warranty. See 21 A. & E. Ency. of Law 468. Many of the authorities upon which we depend, and to which we shall refer, are with reference to the liability of the seller or manufacturer to persons other than the one with whom the contract or sale is made. All of these authorities proceed upon the fundamental principle that where a person is injured in person or property by negligence of another in making, or selling to him, machinery, etc., and where the injury is the proximate result of the negligence, that is where the negligence is the proximate cause of the injury the seller or manufacturer is liable. He is never liable to a third person injured where he would not be liable to the person with whom he dealt, but in many instances he is liable to the person with whom he deals, where he would not be liable to third persons.

One of the well-reasoned cases which has come under our observation is MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, Ann. Cas. 1916C 440. Another automobile case much in point and similar in its reasoning is Olds Motor Works v. Shaffer, 154 Ky. 616, 140 S.W. 1047, Ann. Cas. 1913 B, 689. See too Delvin v. Smith, 89 N.Y. 470, 42 Am. Rep. 311. Barabe v. Duhrkop Oven Company (Mass.), 121 N.E. 415, seems very much in point. Schubert v. Clark Company, 49 Minn. 331, 32 Am. St. Rep. 559.

Loop v. Litchfield, 42 N.Y. 351, reported in 1st Am. Rep. 543, involves the question of liability for an injury caused from a defective wheel used in connection with a woodsaw. The court decided that the defendant was not liable to the plaintiff because the plaintiff was not the purchaser from the defendant, he having used the saw by permission of the purchaser. The non-liability is solely put upon the ground that the plaintiff was not the purchaser from the defendant and that therefore the injury was not the natural and necessary (proximate) result of the negligence.

The case of Losee v. Clute, 51 N.Y. 494, 10 Am. Rep. 638, involves the question of liability of the manufacturer of a boiler which had exploded and caused damage to property of another person. The court holds that the manufacturer was not liable. 1 Thompson on Negligence (1 Ed.), page 523, lays down the rule.

Heizer v. Kingsland, 110 Mo. 605, reported 33 Am. St. Rep. 482, arose out of an injury of the plaintiff caused by a defect in a threshing machine sold by the defendant to one Ellis.

We have in this state some cases bearing upon the question here involved. Pillars v. Reynolds Tobacco Company, 78 So. 365; Wheeler v. Laurel Bottling Works, 71 So. 743; Kress & Company v. Lindsey, a Mississippi case, decided by the United States circuit court of appeals, fifth circuit, is reported 262 F. 331.

The damages, here claimed in this suit, which is in tort, for negligence, do not arise or grow out of the contract or the warranty. The contract is only effective to bring the parties into privity and thus to make the negligence the proximate and not the remote cause of the damages. Passinger v. Thouburn, 34 N.Y. 634, reported also 90 Am. Dec. 753; 6 R. C. L. 727.

Mack & Manship, for appellees.

The first contention of the appellees is, that regardless of the special contract entered into in this case, that the bill of complaint does not state any cause of action against the defendant and that the law imposes no liability upon the vendor of this type of an article for damages arising to the property of another on account of any defect in the construction of the article. That it being an article not imminently dangerous the vendor owed no such duty as set out in the bill of complaint. That leaving out any question of warranty the vendor was only under a duty to deliver to the purchaser the article that he purchased. It will be noted that counsel for appellant in his brief states that the damages claimed are in tort for negligence and do not arise or grow out of the contract or the warranty.

"The liability of a vendor or manufacturer for negligence, except as regulated by contract, must arise from breach of a duty which he owes to the public." 29 Cyc. 487; Heizer v. Kingsland Manufacturing Company, 110 Mo. 605, 19 S.W. 630, 33 Am. St. Rep. 482; Goodlander Mill Co. v. Standard Oil Company, 63 F. 400, 27 L. R. A. 583.

"To such liability knowledge of the defect is requisite." 29 Cyc. 482; Field v. French, 80 Ill.App. 78; Oneal v. James, 138 Mich. 567, 110 Am. St. Rep. 321; Coughley v. Globe Woolen Co., 56 N.Y. 124, 15 Am. Rep. 387; Slattery v. Colgate, 21 R. I. 220, 55 A. 639; Zieman v. Elevator Mfg. Co., 90. Wis. 497, 63 N.W. 1021; Heizer v. Kingsland & Douglas Mfg. Co., 110 Mo. 605, 33 Am. St. Rep. 482.

The leading case on this subject is the case of Winterbottom v. Wright, 10 Mees & W. 109. See, also, Necker v. Harvey, 49 Mich. 517; Losee v. Clute, 51 N.Y. 494, 10 Am. Rep. 638; Curtain v. Somerset, 140 Pa. St. 70, 23 Am. St. Rep. 220.

See, also, Cadillac Motor Car Company v. Johnson, 221 F. 801, L. R. A. 1915E 287. In this case the court says: "We are not persuaded to the contrary by the decision of McPherson v. Buick Motor Company, 145 N.Y.S. 462." We maintain that if there is no liability on the part of the Gullett Gin Company on account of its contract with the complainant, McPherson, then the Gullett Gin Company owed him no duty other than it owed to the general public and as shown by the cases heretofore cited there would be no liability attached to the manufacturer of a gin on account of negligence in the construction of its part toward one with whom it had no contract. The appellant denies that he seeks to hold the appellee liable on account of the contract and yet he claims to be favored above one having no contract. We do not understand that the complainant bases his suit in tort for the breach of contract, express or implied, but take it that he hopes to maintain the suit on the ground of negligence. There can be no recovery for negligence unless the defendant owed a duty to be careful. He certainly owed the complainant no duty unless this duty arose by virtue of the contract on the part of the defendant in the sale of the gin.

It will be seen from this contract that it was clearly contemplated by the parties that the purchaser should have ten days' trial of the gin and if it did not perform well, the seller was to remedy the defect and if the defect could not be remedied and the fault was in the machine itself, the amount of the purchase price of the same was to be credited on the notes pro rata or money paid thereon refunded pro rata and the purchaser to have or make no claim for any damages of any nature or claim whatsoever, except the refunding of the purchase price of the machine pro rata. If there was a defect occasioned by the negligent construction of the Gullett Gin Company and if the saws struck against the ribs in such a manner as to cause the gin to set fire to cotton, it is clear that there was a failure of the warranty. It certainly cannot be said that a gin that sets fire to cotton that it is ginning, "performs well," however the bill of complaint showed on its face that there was no notice to the Gullett Gin Company within the ten days of any defect and the complainant had agreed in his contract that such ten days' use without notice was conclusive that the Gin was satisfactory.

"A provision is frequently inserted in a contract especially in the sale of a machine when it also contains a warranty that it will work properly, that notice of its failure to work properly will be given the seller, the purpose of which is to enable him to remedy the defect or furnish another machine. It is well settled that such an agreement is binding on the party." 24 R. C. L., section 522, 50 So. 308; 18 A. S. R. 348; 50 L. R. A. (N. S.) 783; 119 A. S. R. 956; Threshing Machine Company v. McCoy, 111 Miss. 715, 72 So. 138. We contend that this contract is not against public policy and is not void. That it is not a contract exempting the vendor from liability for his own negligence. The contract merely provides what the measure of damages shall be and the method of ascertaining whether or not the machine shall be considered satisfactory to the purchaser.

Argued orally by P. H. Lowery for appellant and R. E. King and Luther Manship for appellees.

OPINION

SYKES, P.J.

This is an attachment suit in the chancery court, instituted by the appellant, McPherson, as complainant, against the Gullett Gin Company and others. In his bill McPherson seeks to recover damages against the appellee Gullett Gin Company for the burning of a lot of cotton alleged to have been caused by the negligence of the gin company in the improper construction and assembling of a gin. The bill alleges that appellant purchased of appellee two gins on or about the 11th day of October, 1920; that the gin company, in constructing and assembling the gins, carelessly and negligently so arranged the saws and ribs as to cause the saws to come in contact with the ribs, thereby producing friction and heat, resulting repeatedly in setting fire to cotton that was being ginned that, beginning soon after the gins were installed, cotton being ginned was frequently set on fire, which fact was usually discovered in time to prevent loss and damage; that appellant was not able...