Osheroff v. Rhodes-Burford Co.

• Decision Date: 27 May 1924
• Citation: 203 Ky. 408,262 S.W. 583
• Parties: OSHEROFF v. RHODES-BURFORD CO.
• Court: Kentucky Court of Appeals

262 S.W. 583

203 Ky. 408

OSHEROFF v. RHODES-BURFORD CO.

Court of Appeals of Kentucky.

May 27, 1924

Appeal from Circuit Court, McCracken County.

Action by Rose Osheroff against Rhodes-Burford Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Reed &amp Burns and C. C. Grassham, all of Paducah, for appellant.

Wheeler & Hughes and Mocquot, Berry & Reed, all of Paducah, for appellee.

HOBSON C.

On June 28, 1920, the appellant Rose Osheroff went with her husband J. Osheroff to the furniture store of Rhodes-Burford Company in Paducah, and there the husband purchased a bill of house furnishings, which amounted to about $600. The purchase included a porch swing which the vendor agreed to put up on the front porch of their house. The husband made the purchase; the goods were charged to him, and he paid for them, though the wife was with him and assisted in making the selections. The swing was sent out to the house and put up by the vendor. It was purchased by the vendee for his own use and benefit and the use and benefit of his family. It was used by the family that summer and fall without any trouble. The husband and wife sat in it together; they had three children; the children also used it. On February 5, 1921 Mrs. Osheroff, on coming from town, sat down in the swing which was still hanging on the porch, one of the hooks attaching it to the ceiling broke and she fell to the floor one foot was caught under her and her leg was broken at the ankle. She brought this suit against the Rhodes-Burford Company to recover for her injury, charging in effect that in hanging up the swing it used defective hooks and failed to use reasonable care and diligence in fastening the hooks in the ceiling of the porch.

An answer was filed controverting the allegations of the petition. On the first trial of the case there was a verdict for the plaintiff for $1,675. The court on the defendant's motion granted a new trial, and on the second trial of the case at the conclusion of the plaintiff's evidence instructed the jury peremptorily to find for the defendant. The plaintiff's motion for a new trial and her motion that judgment be entered on the verdict on the first trial having been overruled, she appeals. The proof for the plaintiff showed these facts:

The hooks were screwed into the ceiling of the porch about a quarter of an inch beyond the threads, and the break occurred in the thread of the screw. The hooks were not screwed in as far as the shank of the screw allowed and this allowed more vibration of the hooks in the movement of the swing. This caused the metal to crystallize and become more brittle. The break occurred in the thread as the hook is weaker there than in the shank.

The two hooks have been brought up with the record. They were apparently alike and only one broke. It may have been that the break was due to some hidden defect in the screw; but, however this may be, the break did not occur until the swing had been used seven months, and if it was due to the cause assigned by the plaintiff it was due to a change in the condition of the metal from the use of the swing in that seven months. Under such circumstances it cannot be maintained that the swing as put up was inherently or imminently dangerous. The rule as to the liability of the vendor to third persons in a case like this is thus stated in 24 R.C.L. 512:

"It is stated as a rule of law that a manufacturer or seller is not liable to third persons who have no contractual relations with him for negligence in the construction, manufacture, or sale of articles manufactured or sold."

"To this rule, however, the courts have very generally recognized an exception in the case of articles of sale that are 'inherently' or 'imminently' dangerous. As it ordinarily is stated, an act of negligence of a manufacturer or seller which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third persons who suffer from the negligence regardless of privity of contract."

This rule has been followed by this court in the following cases: Heindirk v. Louisville Elevator Co., 122 Ky. 675, 92 S.W. 608, 29 Ky. Law Rep. 193, 5 L.R.A. (N. S.) 1103; Berger v. Standard Oil Co., 126 Ky. 156, 103 S.W. 245, 31 Ky. Law Rep. 613, 11 L.R.A. (N. S.) 238; Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S.W. 1047, 37 L.R.A. (N. S.) 560, Ann.Cas. 1913B, 689; Pullman Co. v. Ward, 143 Ky. 727, 137 S.W. 233.

It is earnestly insisted that as the swing was bought for the use of the family the contract was made for the benefit of the wife as a member of the family and that she may sue upon...