Moll v. Bester

• Decision Date: 10 May 1929
• Docket Number: No. 27254.,27254.
• Citation: 225 N.W. 393,177 Minn. 420
• Parties: MOLL v. BESTER et al.
• Court: Minnesota Supreme Court

225 N.W. 393

177 Minn. 420

MOLL v. BESTER et al.

No. 27254.

Supreme Court of Minnesota.

May 10, 1929.

Appeal from District Court, Dakota County; Albert Johnson, Judge.

Action by August C. Moll against William Bester and the Farmers' Manufacturing Corporation. From an order denying its alternative motion for judgment notwithstanding the verdict against it or for a new trial, defendant last named appeals. Reversed.

Clapp, Richardson, Elmquist, Briggs & Macartney, of St. Paul, for appellant.

Willard Converse, of South St. Paul, for respondent.

DIBELL, J.

Action by plaintiff against William Bester and the Farmers' Manufacturing Corporation to recover damages for injuries sustained while he was helping erect a silo sold in a knocked-down condition to Bester and erected by the latter on his farm. The action was dismissed as to Bester at the close of the testimony. There was a verdict for $1,800 against the manufacturing corporation. It appeals from the order denying its alternative motion for judgment notwithstanding or a new trial.

1. On March 2, 1927, the defendant ordered a silo of the defendant Farmers' Manufacturing Corporation which was shipped to him by freight C.O.D. in a knocked-down condition. The company did not erect it. It was understood that it would not. It agreed to send a man from the factory to supervise its erection. He was to be paid by Bester.

The defendant Bester testified: "After we had gotten together on the price of the silo I says to him: `I don't understand a thing about erecting the silo — I never seen one go up in my life, and I don't think that I can build one.' Then he says to me: `We have six or seven men at the factory who don't do nothing but go out and erect silos.' Then he says: `We send them out to the farmers and the farmers are to pay for them.' I says to him that the last silo I had built the company paid the man, and he says: `We don't do that for the reason that if we furnish the man the farmers generally don't furnish no help, and if the farmer has to pay the man he will get more help.' Then he says: `There is plenty of men around here that I could get to help,' and that he would send a man at any time I would want him."

The important thing was that the man sent be a competent man. If competent, it did not matter whether he was from the factory. The statement that he was to come from the factory that made the silo, and was one of a number that did nothing but erect silos, was an assurance of competency and an indication that he was an expert. Further it was not important.

The defendant company sent a man, one Arnold, who undertook to supervise the erection. He was a structural iron worker, and had never worked in the defendant's factory. The plaintiff, a neighboring farmer, was employed by Bester to help. The defendant corporation necessarily knew that men would be employed and would work with and under the direction of Arnold. When the silo was up 22 feet, it collapsed; the plaintiff who was on top fell with it, and he was injured.

There was no privity of contract between the plaintiff and the defendant corporation. There was privity between the two defendants. The plaintiff claims that the defendant corporation was negligent in sending an incompetent man to supervise the erection of the silo. The absence of privity between the manufacturing corporation and the plaintiff is not controlling here. If the corporation furnished a man who was not competent, it breached its contract with Bester. He would have an action for the breach. The plaintiff would not. If, knowing as it did, that others would work with Arnold and would be imperiled by his lack of skill or fault, it negligently sent an incompetent man, it would be liable to the plaintiff, if he sustained an injury as a proximate result, though there was no privity of contract. Negligence arises from a breach of duty. A contract relation, as that between employer and employee, creates a situation to which the law attaches a duty or obligation the breach of which is negligence or other tort as respects an employee. And, if the defendant owes a duty recognized by law to one person or a class, a breach of it is negligence, though there be no contract relation.

The principle of liability in negligence without contract is illustrated in various situations. In the familiar ladder case, Schubert v. J.R. Clark Co., 49 Minn. 331, 51 N.W. 1103, 15 L.R.A. 818, 32 Am. St. Rep. 559, the court said, in relation to the plaintiff: "He did not stand in any relation of privity with the contracting parties — the retail merchant, who purchased, and the defendant, who sold, the ladder. The contract was not entered into nor executed for his benefit; and, if there was any breach of the contract, the plaintiff has no right of action merely for that. If the defendant is liable, it must be on the ground that the circumstances under which the ladder was manufactured and delivered were such that the neglect to disclose the existence of the defect was a wrong — a neglect of a duty recognized by law independent of contract."

So in Brown v. Smith, 121 Minn. 165, 141 N.W. 2, Ann. Cas. 19...