Sam Shainberg Co. of Jackson v. Barlow, 46513

• Decision Date: 15 February 1972
• Docket Number: No. 46513,46513
• Parties: SAM SHAINBERG COMPANY OF JACKSON, a Corporation, and Sam Shainberg Company, a Tennessee Corporation, v. Mrs. Carrie M. BARLOW.
• Court: Mississippi Supreme Court

Page 242

258 So.2d 242

SAM SHAINBERG COMPANY OF JACKSON, a Corporation, and Sam Shainberg Company, a Tennessee Corporation, v. Mrs. Carrie M. BARLOW.

No. 46513.

Supreme Court of Mississippi.

Feb. 15, 1972.

Watkins & Eager, Hassell H. Whitworth, Jackson, for appellant.

Rufus Creekmore, E. Michael Marks, Jackson, for appellee.

ROBERTSON, Justice:

The complainant, Mrs. Carrie M. Barlow, recovered a judgment for $23,044.35 on an attachment in chancery against Sam Shainberg Company of Jackson, a Mississippi corporation, and Sam Shainberg Company, a Tennessee corporation, jointly and severally, in the Chancery Court of the First Judicial District of Hinds County, Mississippi. No process was had on Loree Footwear Corporation, the munufacturer of the pair of shoes complained of, and no indebtedness to Loree was admitted, so the suit against Loree was dismissed, without prejudice.

After a full trial judgment was rendered against Shainberg-Jackson, the retailer, and Shainberg-Tennessee, the wholesaler, on the theory of strict liability in tort to the ultimate purchaser and suer of the shoes.

During the lunch hour on January 12, 1970, Mrs. Barlow purchased a pair of 'Young Set' women's shoes from Sam Shainberg Company of Jackson. Mrs. Barlow, in her bill of complaint, averred:

'The said shoes were manufactured by the principal defendant, Loree Footwear Corporation; by it were sold to the principal defendant, Sam Shainberg Company; and by its were sold to the principal defendant, Sam Shainberg Company of Jackson, Mississippi, who in turn sold the same to complainant as aforesaid. The shoes were bought and received by the defendant, Sam Shainberg Company, without substantial change in the condition in which they were manufactured; the shoes were bought and received by the defendant, Sam Shainberg Company of Jackson, without substantial change in the condition in which they were manufactured; and the shoes were bought and received by the complainant from the defendant, Sam Shainberg Company of Jackson without substantial change in the condition in which they were manufactured.'

She worked for the Illinois Central Railroad Company, on the second floor of their office building, and during the afternoon she put on these new shoes and wore them around the office. About 5:00 p.m., as she was descending the concrete steps from the second floor to the ground floor, she fell and injured herself when she reached the fifth or sixth step from the bottom. She noticed that the heel of the left shoe had come off and she found the heel close by where she fell.

Her charges against the manufacturer, Loree Footwear Corporation, were that:

'(T)he said shoes were defectively manufactured, and were not reasonably safe for normal and ordinary use as shoes and at the time said shoes were purchased by complainant as aforesaid the same were in a defective condition and were unreasonably dangerous to the user thereof in that the heel of the left shoe of said pair of shoes was not properly and safely affixed to the shoe itself.'

There was no averment in the bill of complaint as to any duty owed the appellee by Shainberg-Tennessee. The only averment of any duty owed by Shainburg-Jackson to appellee was:

'The principal defendant, Sam Shainberg Company of Jackson, is now, and at all times herein mentioned, was engaged in business in Jackson, Mississippi, and elsewhere in the operation of retail stores, wherein it offers for sale and sells to the public various and sundry articles of men's and women's apparel, including shoes; and as such it owed to the public, including complainant, the duty to sell only such articles of merchandise, including women's shoes, as are reasonably safe when used in the manner and for the purposes for which they were sold.'

The sole basis of appellee's lawsuit was set forth on the first page of her brief in this language:

'The case was predicated on the theory of strict liability in tort, i.e. that regardless of negligence on the part of the manufacturer, distributor, or retailer; regardless of warranty, vel non, either express or implied; and regardless of privity of contract, they all were liable to Mrs. Barlow if indeed the shoes were so defective as to be unsafe for their intended use, and if indeed the defect caused the injury.'

The appellants have assigned six errors which they contend were committed by the lower court. Our disposition of the following assignment of error will dispose of the whole lawsuit:

'The Chancellor committed reversible error as a matter of law in holding that Appellants, as wholesaler and retailer of the product involved, owed a legal duty to Appellee under the doctrine of strict products liability in tort under the facts and circumstances of the case.'

These facts were undisputed:

(1) The shoes in question were designed and manufactured by Loree, a nonresident corporation, not a party to this suit;

(2) The shoes were sold by Loree to Shainberg-Memphis, a wholesaler;

(3) The shoes were sold by Shainberg-Memphis to Shainberg-Jackson, a retailer;

(4) The shoes were sold by Shainberg-Jackson to Appellee;

(5) Neither Shainberg-Memphis nor Shainberg-Jackson in any wise whatsoever participated in the design or manufacture of the shoes;

(6) Neither Shainberg-Memphis nor Shainberg-Jackson altered the shoes before sale; and

(7) The shoes were in exactly the same condition when sold by Shainberg-Jackson to Appellee as they were when they left the hands of the manufacturer, Loree.

We are unwilling to extend the rule of strict products liability in tort to the wholesaler and retailer under the undisputed facts of this case. These shoes were never out of their cardboard box (original package) until the retailer transferred them from the box to a rack in the Jackson store. If there were a defect, as to which we express no opinion, it was a latent defect not discoverable by Shainbert-Jackson, or indeed by Mrs. Barlow herself when she looked at these shoes on the rack, tried them on, and decided to purchase them. Where the wholesaler or distributor purchases an article from a reputable and reliable manufacturer, sells it to a retailer in its original condition, and the retailer in turn sells the article-exactly as it came from the manufacturer-to a customer in the regular course of business, no duty devolves on the wholesaler or retailer to inspect and discover a latent defect.

In State Stove Manufacturing Company et al. v. Hodges et ux., 189 So.2d 113 (Miss.1966), even though this court found for the manufacturer, State Stove, we did announce that in a proper case we would apply the developing theory of strict products liability in tort against the manufacturer. In State Stove we said:

'(W)e conclude that the appropriate standards of responsibility are well stated in Section 402A of the American Law Institute's Restatement of Torts (Second) which we adopt insofar as it applies to a manufacturer of a product...