Poplar v. Bourjois, Inc.

Decision Date11 June 1948
Citation298 N.Y. 62,80 N.E.2d 334
PartiesPOPLAR et al. v. BOURJOIS, Inc. et al.
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, First Department.

Action by Myrtle B. Poplar for injuries, and by James R. Poplar, for loss of services and for medical expenses, against Bourjois, Inc., which impleaded Lorscheider Schang Co., Inc. From a judgment in favor of the defendant Bourjois, Inc., entered April 24, 1947, upon an order of the Appellate Division of the Supreme Court, first judicial department, 272 App.Div. 74, 69 N.Y.S.2d 252, which reversed, on questions of law, that part of a judgment of the Supreme Court in favor of plaintiffs and affirmed that judgment insofar as it dismissed the defendant's cross-complaint against the impleaded defendant, entered in New York County, upon a verdict rendered at Trial Term, and which directed a dismissal of plaintiffs' complaint, the plaintiffs appeal. From that part of the judgment of the Appellate Division which affirmed the dismissal of the cross-complaint against the impleaded defendant, the defendant, Bourjois, Inc., appeals. The Appellate Division affirmed the facts.

Affirmed. Chester B. McLaughlin, Lester D. Stickles and Rodger Whelan, all of New York City, for appellants.

Patrick E. Gibbons, of New York City, for defendant-respondent-appellant.

Arthur W. Graef and Louis W. Arnold, Jr., both of New York City, for respondent.

FULD, Judge.

A day or two after Christmas, 1940, as Myrtle Poplar was showing her sister perfumes and cosmetics which her husband had given her, she pricked her finger on the point of a silvery metal star that adorned the gift box in which they were contained. A serious streptococcus infection developed, she became gravely ill, and the infected finger had to be amputated. Following an unsuccessful suit in Maryland for breach of warranty against the Baltimore department store where the article had been purchased (Poplar v. Hochschild, Kohn & Co., 180 Md. 389, 24 A.2d 783), this negligence action was brought against Bourjois, Inc., by Mrs. Poplar to recover for her injuries and by her husband for the loss of her services and for medical expenses.

Bourjois is a producer of perfumes, cosmetics and kindred articles. In 1940, it bought a large quantity of boxes from Lorscheider Schang Co., Inc., which manufactured them according to the former's specifications. Each was of cardboard overlaid with a silk fabric, about a foot square and three inches deep; the two cover lids were quilted, and to each was glued a thin and sharply pointed metal star some three inches from point to point. In anticipation of the 1940 Christmas trade, Bourjois packed about 10,000 of these cardboard boxes with its products, stamped its name prominently upon the cover, and marketed the entire package as its own. It sold some of them to a department store in Baltimore, Maryland, and it was one of those that Mr. Poplar, living in nearby Havre de Grace, bought for his wife.

The charge of negligence leveled at Bourjois was that it had failed to have the injury-producing star fastened securely to the box, and there was evidence that the point of the star had become sligtly upturned so that it was not flush with the cover. It was claimed that defendant Bourjois' carelessness rendered the article ‘dangerous to life and limb’. For its part Bourjois denied the charge of negligence and impleaded the manufacturer Lorscheider, charging it with liability over. A trial was held; the jury returned a verdict in favor of plaintiffs against Bourjois and in favor of Lorscheider on the cross complaint. The Appellate Division reversed the judgment in plaintiff's favor and dismissed the complaint.

Whether defendant, as manufacturer for so Bourjois must be treated (Armour & Co. v. Leasure, 177 Md. 393, 412, 9 A.2d 572;Commissioners of State Ins. Fund v. City Chemical Corp., 290 N.Y. 64, 69, 48 N.E.2d 262, 265) owed a duty of care to any one other than its immediate purchaser is the problem for determination, and since the wrong occurred that is, plaintiff was injured and the harmful force took effect in the State of Maryland, decision must be made according to the law of that jurisdiction. (See Benton v. Safe Deposit Bank, 255 N.Y. 260, 265, 174 N.E. 648, 649;Hunter v. Derby Foods, Inc., 2 Cir., 110 F.2d 970, 971, 972, 133 A.L.R. 255;Openbrier v. General Mills, Inc., 340 Pa. 167, 169, 16 A.2d 379; see, also, Restatement, Conflict of Laws, s 377, pp. 454-455; s 384.) We are not called upon to consider or decide whether recovery would be permitted under the common law of New York by either application or extension of the rule announced in MacPherson v. Buick Motor Co. 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916 F. 696, Ann. Cas. 1916 C, 440:

We turn, then, to the law of Maryland. The courts of that State have made it clear that no recovery may be had against manufacturers for injuries caused to third persons with whom they have no direct dealings unless they are ‘manufacturers or compounders of articles or substances which in themselves are imminently and inherently dangerous' when defectively made. (State v. Consolidated Gas Co., 146 Md. 390, 399, 126 A. 105, 42 A.L.R. 1237; see, also, State v. Katcef, 159 Md. 271, 278, 150 A. 801). In Maryland, as elsewhere, whether a particular article is or is not capable of being characterized as inherently dangerous is determined as each case is presented, without exact yardstick or precise definition. (See Russell, Manufacturers' Liability to the Ultimate Consumer, 21 Ky.L.J. 388, 405-406). In general, though, the injury-producing article may not be considered inherently dangerous within the rule unless it is generally and commonly regarded as one which, ‘when defectively made’ is ‘a menace to the health and lives of any person’ who might use it. State v. Consolidated Gas Co., supra, 146 Md. at page 399, 126 A. at page 109, 42 A.L.R. 1237. Study of the few Maryland cases in point demonstrates that the...

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64 cases
  • Jamieson v. Woodward & Lothrop
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • April 16, 1957
    ...which, without fault on her part, could give her a black eye or a cut lip or any facial injury. As was said in Poplar v. Bourjois, 1948, 298 N.Y. 62, 80 N.E.2d 334, where the plaintiff pricked her finger on an insecurely fastened metal star on a perfume box, infection developed, and the fin......
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    ...by inherently dangerous, courts must rely upon the circumstances of each case without precise definition. See Poplar v. Bourjois, Inc., 298 N.Y. 62, 66, 80 N.E.2d 334 (1948).8 Based upon the record, parties have stipulated here that:when a building or apartment is not undergoing repair, ren......
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    • April 30, 1985
    ...the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred (see, Poplar v. Bourjois, Inc., 298 N.Y. 62; Conklin v. Canadian-Colonial Airways, 266 N.Y. 244, 194 N.E. 692; Hunter v. Derby Foods, 110 F.2d 970 [2d Cir.] ). Thus, the loc......
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    ...courts invariably applied lex loci delicti--the law of the place of the tort--to all substantive issues (see, e.g., Poplar v. Bourjois, Inc., 298 N.Y. 62, 66, 80 N.E.2d 334; Restatement of Conflict of Laws §§ 377-390), while contract cases generally invoked the law of the place where the co......
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