Sterchi Bros. Stores, Inc. v. Castleberry

• Decision Date: 26 October 1937
• Docket Number: 8 Div. 557.
• Citation: 28 Ala.App. 281,182 So. 471
• Parties: STERCHI BROS. STORES, INC., v. CASTLEBERRY.
• Court: Alabama Court of Appeals

182 So. 471

28 Ala.App. 281

STERCHI BROS. STORES, INC., v. CASTLEBERRY.

8 Div. 557.

Court of Appeals of Alabama

October 26, 1937

Rehearing Denied Jan. 11, 1938.

Affirmed on Mandate June 30, 1938.

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

Action for damages by Mrs. J. F. Castleberry against Sterchi Bros Stores, Incorporated. From a judgment for plaintiff defendant appeals.

Affirmed.

Certiorari granted by Supreme Court in Sterchi Bros. Stores v Castleberry (8 Div. 873) 182 So. 474.

L. A. May and Bradshaw & Barnett, all of Florence, for appellant.

R. T. Simpson and R. T. Simpson, Jr., both of Florence, and Ben F. Ray, of Birmingham, for appellee.

RICE Judge.

Appellee, plaintiff in the court below, brought suit (successful, as appears) against appellant, claiming damages for personal injuries received as the result of the "bursting" or "exploding" of a mechanical refrigerator sold by appellant to the husband of appellee.

The refrigerator in question was a Kelvinator, a nationally advertised product of a manufacturer who is not a party to the suit; and it was sold by the appellant in the condition in which it was bought from the manufacturer.

The refrigerator was placed with the Castleberrys "on approval," and was purchased by Mr. Castleberry, the husband of plaintiff, appellee, after a trial of ten days or two weeks in his home.

It had been used by the Castleberrys for more than a year when a small pipe cracked and a gas escaped. This escaping gas is alleged to have caused the injuries for which damages are claimed.

The negligence relied upon is the negligent failure or refusal to repair, the negligent installation of the refrigerator, and the negligence in selling the refrigerator.

"It frequently has been declared to be a rule that no cause of action in tort can arise from the breach of a duty existing by virtue of contract, unless there be between the defendant and the person injured what is termed privity of contract." 20 R.C.L. p. 49, § 44.

Of course the action here is founded in tort. 24 R.C.L. 514; Jones v. Gulf States Steel Co., 205 Ala. 291, 88 So. 21.

And the fact that "a seller warrants the condition or quality of a (the) thing sold does not in itself * * * impose any liability on him (it) to third persons who are in no way a party to the contract. In such a case there is no privity of contract between the seller and such third person, and this precludes any right on his (her) part to any advantage or benefit to be derived from the warranty." 24 R.C.L. 158; State of Maryland, to Use of Winfield H. Bond, v. Consolidated Gas, Electric Light & Power Company of Baltimore, 146 Md. 390, 126 A. 105, 42 A.L.R. 1237.

And we think, and hold, that "in order to make a vendor liable (in such a case as this) who sells an article not in itself of an imminently dangerous character, it must be averred that he had actual knowledge of the defect or danger." Huset v. J. I. Case Threshing Machine Company, 120 F. 865, 57 C.C.A. 237, 61 L.R.A. 303.

The rule is well established that where the injury is the result of an act, the cause of which is not in itself imminently dangerous to life and limb, nor based upon fraud or deceit, nor implied invitation, and where the plaintiff is not a privy of the contract with the defendant, an action for negligence will not lie. Laudeman v. Russell & Co. et al., 46 Ind.App. 32, 91 N.E. 822.

It has been said that, "ordinarily, where a vendee accepts the purchased article, the vendor becomes, by reason of such acceptance, relieved from liability to third parties with respect to it." Bragdon v. Perkins-Campbell Company, 87 F. 109, 110, 30 C.C.A. 567, 66 L.R.A. 924.

And we are of the opinion, moreover, that the fact that the Kelvinator was used by appellee for more than one year from the date of its purchase, before the occurrence made the subject of the suit, is conclusive evidence that same was not--even if same had been averred, which it was not--imminently dangerous when sold. Lynch v. International Harvester Co. (C.C.A.) 60 F.2d 223.

We concede it to be the law that "one who sells article known to be imminently dangerous to another, without notice of its qualities, is liable to any person who suffers injury therefrom which might have been reasonably anticipated, whether there were contractual relations between parties or not." Lynch v. International Harvester Co., supra.

But we find nothing in the evidence indicating that a Kelvinator such as the one involved in this case, is an article inherently dangerous; or that the one here...