Sterchi Bros. Stores, Inc. v. Castleberry, 8 Div. 873.

• Decision Date: 12 May 1938
• Docket Number: 8 Div. 873.
• Citation: 236 Ala. 349,182 So. 474
• Parties: STERCHI BROS. STORES, INC., v. CASTLEBERRY.
• Court: Alabama Supreme Court

182 So. 474

236 Ala. 349

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

8 Div. 873.

Supreme Court of Alabama

May 12, 1938

Rehearing Denied June 16, 1938.

Certiorari to Court of Appeals.

Petition of Mrs. J. F. Castleberry for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Sterchi Bros. Stores, Inc., v Castleberry, 182 So. 471.

Writ granted; reversed and remanded.

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

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

THOMAS Justice.

Petition for writ of certiorari to the Court of Appeals.

The trial was had upon counts A, B, C, and D, in tort. Counts A and D set up installation with knowledge of defects in refrigerator and the negligent failure to remedy, plaintiff's injury being a proximate result of said negligence. Count B avers negligent installation, etc. Count C sets up that the defendant sold a refrigerator to the husband of the plaintiff which was in a defective condition and failed to function properly; that the defendant undertook to adjust, repair, or restore said refrigerator to a proper working condition; that the defendant was negligent in and about the performance of said undertaking and did negligently fail to adjust, restore, or repair said refrigerator so that it would function properly and safely--all to the injury of the plaintiff.

In addition to the general issue, plea 4 alleged that the plaintiff was guilty of contributory negligence in that she used a defective refrigerator with knowledge of its defects. To this plea the plaintiff replied that she was ignorant of the mechanical operation of electric refrigerators and particularly this one, which fact was known to the defendant; and plaintiff was, therefore, unaware of the danger in using said refrigerator in such defective condition, and relied upon the defendant's many promises to remedy or repair said defect, which defendant did not do after being notified by said plaintiff.

The evidence and tendencies thereof being in conflict, the affirmative charges requested were properly refused. McMillan v. Aiken et al., 205 Ala. 35, 88 So. 135; Jones v. Bell, 201 Ala. 336, 77 So. 998; Anderson v. Sanders, Ala.Sup., 180 So. 295; Creamery Package Mfg. Co. v. Fields, Ala. Sup., 180 So. 275.

The evidence and argument being concluded, the court thus defined the law applicable to the several phases of the evidence under the respective pleadings. In effect the court charged:

"It would be incumbent on the plaintiff to establish what she has set up in these counts under the plea of the general issue, to your reasonable satisfaction, that is, that she bought the refrigerator from the defendant, and that the defendant installed it in her home and that it was defective. It would be incumbent under that status of the pleading for the plaintiff to prove further that they knew it was defective, and knowing that it was defective, and that they were notified that it was defective, they failed to repair it, and that by reason of the negligence of the defendant the plaintiff was damaged.

"And, if it did, was it defective? If it was defective was it known to the defendant or could it have been known by the defendant by the exercise of ordinary care and prudence? And, if it was defective and the defendant was notified of the defects, after the defendant was notified did the defendant decline to remedy the defect? If you are reasonably satisfied that the plaintiff has proven these allegations, it would be your duty to find for the plaintiff under the plea of the general issue, interposed by the defendant.

"In addition to the plea of the general issue the defendants have filed a plea of contributory negligence. In that plea the defendant sets up that she knew it was defective and knowing that it was defective she permitted it to stay in the house and used it, and that she was negligent and that her negligence contributed to her own injury. Now the burden of proof under the plea of contributory negligence is upon the defendant to establish that plea. Now there is a replication to that plea of the defendant, and if the defendant has established that plea of the defendant, and if the defendant has established that plea the burden would shift to the plaintiff to establish to your reasonable satisfaction their replication, that is, that she did not know anything about the mechanical operations of an electrical refrigerator, that the defendant knew of the defect, that the plaintiff was not aware of the defect and that she was not aware of the danger in the using of said refrigerator in its defective condition, that she relied on the representations of the defendant that it was defective in permitting it to stay in there and use it."

Were such instructions in accord with the decisions touching the facts averred and proven?

The general authorities are collected by Judge Sanborn, in Huset v. J. I.

Case Threshing Mach. Co., 8 Cir., 120 F. 865, 61 L.R.A. 303, to the effect that (1) the general rule is that a contractor, vendor, or manufacturer is not liable to third parties, who have no contractual relation with him, for negligence in the construction, manufacture, or sale of the articles he handles. It is said (page 868): "In these cases third parties, without any fault on their part, were injured by the negligence of the manufacturer, vendor, or furnisher of the following articles, while the parties thus injured were innocently using them for the purposes for which they were made or furnished, and the courts held that there could be no recovery, because the makers, vendors, or furnishers owed no duty to strangers to their contracts of construction, sale, or furnishing: A stagecoach, Winterbottom v. Wright, 10 M. & W. 109; a leaky lamp, Longmeid v. Holliday, 6 Exch. 764, 765; a defective chain furnished one to lead stone, Blakemore v. Ry. Co., 8 El. & Bl. 1035; an improperly hung chandelier, Collis v. Selden, L.R. 3 C.P. 495, 497; an attorney's certificate of title, National Sav. Bank v. Ward, 100 U.S. 195, 204, 25 L.Ed. 621; a defective valve in an oil car, Goodlander Mill Co. v. Standard Oil Co., 63 F. [ 400] 401, 406, 11 C.C.A. 253, 259, 27 L.R.A. 583; a porch on a hotel, Curtin v. Somerset, 140 Pa. 70, 21 A. 244, 12 L.R.A. 322, 23 Am.St.Rep. 220; a defective side saddle, Bragdon v. Perkins-Campbell Co., 87 F. 109, 30 C.C.A. 567, ; a defective rim in a balance wheel, Loop v. Litchfield, 42 N.Y. 351, 359, 1 Am.Rep. 513; a defective boiler, Losee v. Clute, 51 N.Y. 494, 10 Am.Rep. 638; a defective cylinder in a threshing machine, Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 615, 617, 19 S.W. 630, 15 L.R.A. 821, 33 Am.St.Rep. 482; a defective wall which fell on a pedestrian, Daugherty v. Herzog, 145 Ind. 255, 44 N.E. 457, 32 L.R.A. 837, 57 Am.St.Rep. 204; a defective rope on a derrick, Burke v. Refining Co., 11 Hun [N.Y.] 354; a defective shelf for a workman to stand upon in placing ice in a box, Swan v. Jackson, 55 Hun 194, 7 N.Y.S. 821; a defective hoisting rope of an elevator, Barrett v. Mfg. Co., 31 N.Y. Super.Ct. 545; a runaway horse, Carter v. Harden, 78 Me. 528, 7 A. 392; a defective hook holding a heavy weight in a drop press, McCaffrey v. Mfg. Co., , 50 A. 651, 55 L.R.A. 822, 91 Am.St.Rep. 637; a defective bridge, Marvin Safe Co. v. Ward, 46 N.J.Law, 19; shelves in a dry goods store, whose fall injured a customer, Burdick v. Cheadle, 26 Ohio St. 393, 20 Am.Rep. 767; a staging erected by a contractor for the use of his employes, Maguire v. Magee (Pa.) 13 A. 551; defective wheels, J. I. Case Plow Works v. Niles & Scott Co., , 63 N.W. 1013."

The general rule is subject to exceptions recognized, as follows, by Judge Sanborn:

"The first is that an act of negligence of a manufacturer or vendor which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third parties who suffer from the negligence. Dixon v. Bell, 5 Maule & Sel. 198; Thomas v. Winchester, 6 N.Y. 397, 57 Am.Dec. 455; Norton v. Sewall, 106 Mass. 143, 8 Am.Rep. 298; Elkins v. McKean, 79 Pa. 493, 502; * * * Peters v. Johnson, , 41 S.E. 190, 191, 57 L.R.A. 428 . The leading case upon this subject is Thomas v. Winchester, 6 N.Y. 397, 57 Am.Dec. 455. * * * These cases stand upon two well-established principles of law: (1) That every one is bound to avoid acts or omissions imminently dangerous to the lives of others, and (2) that an injury which is the natural and probable result of an act of negligence is actionable. It was the natural and probable result of the negligence in these cases that the vendees would not suffer, but that those who subsequently purchased the deleterious articles would sustain the injuries resulting from the negligence of the manufacturers or dealers who furnished them.

"The second exception is that an owner's act of negligence which causes injury to one who is invited by him to use his defective appliance upon the owner's premises may form the basis of an action against the owner. Coughtry v. Globe Woolen Co., 56 N.Y. 124, 15 Am.Rep. 387; Bright v. Barnett & Record Co., , 60 N.W. 418, 420, 26 L.R.A. 524; Heaven v. Pender, L.R. 11 Q.B.Div. 503; Roddy v. Railway Co., 104 Mo. 234, 241, 15 S.W. 1112, 12 L.R.A. 746, 24 Am.St.Rep. 333. In Coughtry v. Globe Woolen Co., 56 N.Y. 124, 15 Am.Rep. 387, * * * the court held that the act of the owner was an implied invitation * * * and imposed upon him a liability for negligence in its erection. * * *

"The third exception to the rule is that one who sells or delivers an article which he knows to be imminently

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