Ringstad v. I. Magnin & Co.

• Decision Date: 17 January 1952
• Docket Number: No. 31824,31824
• Court: Washington Supreme Court
• Parties: RINGSTAD et ux. v. I. MAGNIN & CO.

Page 923

39 Wn.2d 923

239 P.2d 848

RINGSTAD et ux. v. I. MAGNIN & CO.

No. 31824.

Supreme Court of Washington, Department 2.

Jan. 17, 1952.

Dodd & Russell, Seattle, for appellants.

Skeel, McKelvy, Henke, Evenson & Uhlmann and Altha P. Curry, all of Seattle, for respondent.

HILL, Justice.

The question presented is, Does the plaintiffs' amended complaint state a cause of action on the theory of either negligence or breach of warranty of fitness?

The facts, unmixed with conclusions of law, as garnered from the allegations of the amended complaint, are that Emery T. Ringstad purchased from I. Magnin & Co. a summer cocktail robe for his wife, Helen Louise Ringstad. Two days later, while she was preparing food in the kitchen, the robe came into 'casual contact' with a burner of an electric stove 'and it instantaneously burst into a sheet of flame which spread with explosive rapidity.'

This action was commenced to recover damages for the injuries sustained by Mrs. Ringstad, on the theories that: (1) I. Magnin & Co. had been guilty of negligence which was a proximate cause of the injuries; and (2) there had been a breach of an implied warranty of fitness. The trial court, concluding that there could be no recovery on either theory, sustained a demurrer to the amended complaint and dismissed the action. This appeal followed.

The general rule as to liability for tort in such a case is:

'A vendor of a chattel manufactured by a third person [which category would include retail dealers handling wearing apparel, such as I. Magnin & Co.], who neither knows nor has reason to know that it is, or is likely to be, dangerous, is not subject to liability for harm caused by the dangerous character or condition of the chattel even though he could have discovered it by an inspection or test of the chattel before selling it.' Restatement of the Law, 1948 Supp., 716, Torts, § 402.

Appellants have relied upon and quoted extensively from the original § 402 of Restatement of the Law of Torts and the comment thereon. It is conceded in the 1948 supplement that the original § 402 was misleading. We prefer the rule as restated in the supplement and quoted supra; it is consistent with reality and common sense, and represents the overwhelming weight of authority. The following quotation from the comment contained in the 1948 supplement expresses our views: 'There is a clear distinction between the liability of a manufacturer and that of a vendor for harm caused by a chattel made by the former and sold by the latter. The manufacturer of a dangerously defective chattel is the creator of something which is foreseeably dangerous when it is used for the purpose for which it is manufactured. The constructing of the chattel defectively, with knowledge it is to be sent out to be used, is an unreasonably dangerous activity. On the other hand, the vendor who reasonably believes that the chattel he is selling is safe for use is not, in selling and delivering the chattel, doing anything which is foreseeably likely to cause harm. The slight risk inherent in the possibility the chattel may be defective is not sufficient to constitute an unreasonable risk. The burden on the vendor of requiring him to inspect chattels he reasonably believes to be free from hidden danger outweighs the magnitude of the risk that a particular chattel may be dangerously defective (See §§ 291-293). Negligence is determined in the light of the facts known to the actor.'

The negligence alleged is that I. Magnin & Co. offered the robe for sale '* * * without testing and examining the material used in the manufacture of the fabric for resistance to flame or heat and without warning the buying and consuming public, and particularly the plaintiffs herein, as to the inherent danger of explosive ignition upon casual contact with flame or heat. The resistance of materials used in said robe to flame and heat was subject of easy determination and could have been ascertained had the employees, agents and representatives of the defendant used the proper care and skill customarily employed by such retail organizations for the protection of the consuming public.'

Nowhere in the amended complaint is there any allegation that I. Magnin & Co., as the 'vendor of a chattel manufactured by a third person,' knew or had reason to know that the garment sold was or was likely to be dangerous, as required by the rule quoted supra, in order to establish liability for negligence. The allegation, as noted, is that if I. Magnin & Co. had made a test it would have discovered the inherent danger of explosive ignition; but the general rule is that there is no obligation on the retailer to make such a test in the absence of some circumstance suggesting the necessity therefor. So far as appellants' cause of action is predicated upon negligence, the demurrer was properly sustained.

But the amended complaint was drafted with the intent to state a cause of action based upon a breach of an implied warranty of fitness, in reliance upon the uniform sales act and specifically Rem.Rev.Stat. § 5836-15(1), which is as follows: '(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.'

Under that subsection there are two prerequisites to an implied warranty of fitness: First, the buyer must make known to the seller, expressly or by implication, the particular purpose for which the article is required; and second, the buyer must rely upon the seller's skill and judgment when he purchases the article. Cochran v. McDonald, 1945, 23 Wash.2d 348, 161 P.2d 305.

It is obvious that an article of wearing apparel is to be worn, and that purpose must have been known to the seller. The fact of the sale itself is sufficient to indicate that the seller knew the particular purpose, and thereby satisfies the first prerequisite.

The amended complaint states that the buyer examined the robe '* * * for color, texture, size, style and design, but was totally and wholly uninformed as to the safety factor of the fabric from which the garment was manufactured and the resistance of said fabric to flame or fire; and said plaintiff [buyer, appellant] relied wholly and exclusively upon the defendant [seller, respondent] * * * to market merchandise which was fit for the purposes for which it was intended and safe for public use.'

That is a sufficient allegation of reliance by the buyer on the skill and judgment of the seller on an essential point in determining whether the garment in question was reasonably fit for the required purpose. We therefore hold that the amended complaint sufficiently alleges the two prerequisites to a breach of warranty of fitness as set forth in Rem.Rev.Stat. § 5836-15(1).

Respondent urges that prior to the uniform sales act the rule of caveat emptor would have applied to a sale such as that alleged here, and that it was not intended by the uniform sales act to extend the implied warranty of fitness to merchandise sold over the counter, inspected and selected from a quantity stock. Respondent concedes that we have applied the implied warranty of the statute to sales of food, but insists that food cases represent an exception to the rule.

Appellants rely upon the case of Deffebach v. Lansburgh & Bro., 1945, 80 U.S.App.D.C. 185, 150 F.2d 591, 168 A.L.R. 1052, in support of their claim to a right to recover on an implied warranty of fitness. That case is squarely in point, the only distinctions being that the garment was a lounging robe and not a cocktail robe, and that it was ignited when the wearer waved, or 'fanned,' a match after lighting a cigarette instead of by 'casual contact' with a burner on an electric stove. The court in that case said: 'The robe was bought, as appellee concedes, for use as a lounging robe. This purpose was obvious and therefore known to the seller. Since the buyer was not expert in textiles, we cannot agree with the view that her examination of the robe ought to have revealed the fact that it would burn up in an instant if it came in contact with flame. We think she clearly relied on the seller's judgment that it was fit for use. In fact, appellee now concedes that the only question in the case was whether or not the robe was reasonably fit for use as a robe. Since outer garments intended for domestic wear are not unlikely to come into momentary contact with lighted matches, tobacco, or stoves, it seems to us clear that a robe which, when this contact occurs, instantly bursts into flame and inflicts severe injury is unreasonably dangerous and unfit for use.'

In conformity with its primary contention, respondent takes the position that the Deffebach case is bad law and that we should disregard it. However, some attempt is made by the respondent to distinguish that case from the present one. The distinguishing feature relied upon is that, while it might be expected that a lounging robe or cocktail robe would be subjected to flame and hear hazards that come from cigarette lighting and smoking (and indeed, according to our current mores, what garment is not subject to that hazard?), it is not to be expected that it would be subjected to the hazard of 'casual contact' with a burner...