Robichaud v. Owens-Illinois Glass Co.
| Decision Date | 26 April 1943 |
| Citation | 313 Mass. 583,48 N.E.2d 672 |
| Parties | IDA ROBICHAUD v. OWENS-ILLINOIS GLASS COMPANY (and a companion case [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 22, 1942.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, DOLAN, COX, & RONAN, JJ.
Deceit. Negligence Bottle, Vendor, Dangerous article.
Pleading, Civil Declaration, Demurrer.
An action of deceit cannot be maintained if based solely on a representation that was not directed to the plaintiff.
A demurrer properly was sustained to a count in a declaration which was cast in deceit but, respecting reliance by the plaintiff on an alleged false representation made by the defendant, contained only an allegation that the plaintiff "relied" on it without any allegation as to what he did or did not do in reliance.
A declaration in an action of tort containing allegations that the plaintiff was injured by the explosion of a bottle manufactured by the defendant for sale to dealers for use as a container for carbonated beverages, making it "highly dangerous," and that it was the defendant's duty "to use due care" in such manufacture "but that the defendant failed in this duty," did not set forth a cause of action because it did not point out the cause of the explosion of the bottle.
Allegations in a declaration for personal injuries sustained when a bottle containing a carbonated beverage exploded, to the effect that the defendant manufactured bottles for sale for the purpose of being used as such containers; that the bottle which exploded had been sold to a bottler who used it for the purpose intended; that the plaintiff's injuries were due to the fact that the bottle was dangerous when so used, which the defendant knew; and that the defendant, having no reason to believe that the plaintiff would realize the dangerous condition of the bottle, failed "to take any steps to inform" him thereof, did not state a cause of action in that they failed to set forth facts casting upon the defendant any duty to see that the bottler should warn anyone or to show that the defendant would be liable if the bottler failed so to warn.
TWO ACTIONS OF TORT. Writs in the Superior Court dated October 8, 1941. Demurrers were sustained by Dillon, J. The plaintiffs appealed.
The cases were argued at the bar in September, 1942, before Field, C.J., Donahue, Dolan, Cox, & Ronan, JJ., and afterwards were submitted on briefs to all the Justices.
S. M. Salny, for the plaintiffs. C. W. Proctor, for the defendant.
The demurrers to the declarations in these two actions of tort were sustained, and each plaintiff appealed. The first action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff as a result of the explosion of a bottle containing a carbonated beverage, and the second action is brought by the husband of the plaintiff in the first action to recover his consequential damages. Inasmuch as the material allegations in each count of each declaration are substantially the same, we shall, for purposes of convenience, consider the declaration in Mrs Robichaud's case, referring to her hereinafter as the plaintiff.
1. The first count alleges that the defendant, a manufacturer of glass bottles that are used for the purpose of holding and storing carbonated beverages, sold such bottles to a bottler, with the knowledge that the bottler would fill and deliver them to retail dealers, who, in turn, would resell them, and that while the plaintiff was standing nearby, one of these bottles exploded, causing her injuries. Further allegations are that the defendant, "in putting said bottle or bottles upon the market represented to any persons, including this Plaintiff, who might come in proximity to said bottles containing said carbonated beverage, that the said bottles were safe and reasonably fit for use as a container for carbonated beverages and that the said bottles were of sufficient strength and of proper structure to hold said carbonated beverage and keep same from exploding"; that the bottle which exploded was not reasonably fit for the purpose for which it was used; that the plaintiff relied upon these representations of the defendant; and that the defendant made such representations as of its own knowledge, and knew, or had reasonable cause to know, that the representations were false.
This count is cast in deceit, the five elements of which must be well pleaded. Windram v. French, 151 Mass. 547 . Alpine v. Friend Bros. Inc. 244 Mass. 164, 167. The defendant is not charged with making any express representations directly to the plaintiff, the allegation being that the representation consisted "in putting said bottle or bottles upon the market." A fraud, however, may be perpetrated by an implied as well as by an express representation. Lobdell v. Baker, 1 Met. 193, 201. Hecht v. Batcheller, 147 Mass. 335 , 339. Watson v. Silsby, 166 Mass. 57 , 58. But whatever form the representation may take, the burden is upon a plaintiff to show that it was made with the intention of inducing him to act upon it. In the case at bar, in so far as it is a question of law whether any representation arises from the mere fact of putting such a bottle on the market, there is no admission of this by demurrer, and, in so far as any representation arises as a conclusion of fact, it is not admitted by demurrer, unless the conclusion follows, as a necessary one, from the specific facts well pleaded. Johnson v. East Boston Savings Bank, 290 Mass. 441, 446-447, and cases cited. Comerford v. Meier, 302 Mass. 398 , 402. It is true that a representation may be made to a class, and that anyone within the class may rely upon it, but there is no allegation in the case at bar that brings the plaintiff any nearer to the bottle that is alleged to have exploded, other than the allegation that she "was standing nearby." There is no suggestion that she purchased the bottle, made any use of it, or entered into any transaction concerning it.
The alleged implied representations cannot be said to have been made to one who stood in any relation other than that alleged of the plaintiff. See Pitman v. Lynn Gas & Electric Co. 241 Mass. 322 , 324. One cannot maintain an action of deceit merely by acting upon a representation that was not directed to him. Hunnewell v. Duxbury, 154 Mass. 286 , 288. Beaman v. Gerrish, 235 Mass. 79 , 86-87, and cases cited. Even if it be assumed that it is sufficiently alleged that the representations were made to the plaintiff, there is no allegation of what the plaintiff did, or did not do, in reliance thereon. On the contrary, there is the mere bald allegation of reliance without any averments to support that conclusion, and such an allegation is not sufficient when challenged by demurrer. Morley v. Police Commissioner of Boston, 261 Mass. 269, 281. Dealtry v. Selectmen of Watertown, 279 Mass. 22 , 26-27. Fleming v. Dane, 298 Mass. 216 , 218. Wesalo v. Commissioner of Insurance, 299 Mass. 495, 498. Comerford v. Meier, 302 Mass. 398 , 402. Stockus v. Boston Housing Authority, 304 Mass. 507 , 511. The demurrer was rightly sustained as to the first count.
2. The second count of the declaration contains...
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