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 |
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.
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:
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:
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