Triplett v. American Creosote Works, Inc., 43182

• Decision Date: 01 February 1965
• Docket Number: No. 43182,43182
• Citation: 171 So.2d 342,251 Miss. 727
• Parties: Cleveland TRIPLETT v. AMERICAN CREOSOTE WORKS, INCORPORATED.
• Court: Mississippi Supreme Court

Page 342

171 So.2d 342

251 Miss. 727

Cleveland TRIPLETT v. AMERICAN CREOSOTE WORKS, INCORPORATED.

No. 43182.

Supreme Court of Mississippi.

Feb. 1, 1965.

J. P. Coleman, Ackerman, J. Hoy Hathorn, Louisville, for appellant.

Thomas A. Bell, Daniel, Coker & Horton, Jackson, for appellee.

KYLE, Presiding Justice.

This case is before us on appeal by Cleveland Triplett, plaintiff in the court below, from a judgment of the Circuit Court of Choctaw County sustaining the demurrer of American Creosote Works, Incorporated, defendant in the court below, in an action for damages for personal injuries received by the plaintiff on March 7, 1961, as a result of a shock and burns suffered by the plaintiff when he came in contact with an electric power line which had fallen on or across a public road known as the Liberty Cutoff Road in Winston County, about ten miles southwest of the City of Louisville. The electric power line was owned and maintained by the East Misissippi Electric Power Association which was named a codefendant in the plaintiff's declaration, but after the filing of the plaintiff's declaration, the Power Association settled its case with the plaintiff.

The plaintiff's declaration charged that the high voltage line of the East Mississippi Electric Power Association involved in this case was constructed during the year 1948, and that the posts supporting the line were supplied by the defendant American Creosote Works, Inc., and were stamped with American Creosote Works' trade name and the date they were supplied, and that the posts had been processed and treated with creosote material by the defendant American Creosote Works.

The pertinent parts of the plaintiff's declaration alleged as grounds of liability on the part of American Creosote Works, Inc., are as follows: That common care and prudence required that the defendant, American Creosote Works, Inc., in treating, processing and furnishing the creosote poles used in constructing the high voltage uninsulated line running along the Liberty Cutoff Road, knowing that the poles would be used to support high voltage uninsulated electric lines, which at times would cross over and above public roads and highways, see that the materials, creosote and wood were of sufficient quality and stability that the poles would perform the function for which they were intended and would sustain and support the high voltage uninsulated electric power wires in such manner as to protect the traveling public having occasion to use the road, one of which was the plaintiff.

The plaintiff further alleged in his declaration 'that notwithstanding the said duties and said facts, the said defendant, American Creosote Works, Inc., did negligently and carelessly furnish creosoted poles used in the construction and maintenance of the high voltage uninsulated electrical line running along the Liberty Cutoff Public road, that failed to meet said requirements in that they were of poor quality, and had not been impregnated with creosote, or the said material was of such poor quality that it did not preserve said wood, or that the wood was of such poor quality that it could not be preserved, so much so that the offset post that fell across the Liberty Cutoff Road causing the injuries herein complained of was rotten and decayed, and bits and pieces of said post fell and were shattered from said post like a rotten corn stalk broken apart, and a casual examination of the same showed that said post was rotten and decayed and did not contain creosote as represented and warranted, and that as a direct and proximate result of such negligence and carelessness and failure the plaintiff did sustain the injuries herein complained of.'

The allegations of the declaration charging negligence on the part of the East Mississippi Electric Power Association will be referred to later.

The defendant, American Creosote Works, Inc., filed a demurrer to the plaintiff's declaration alleging as grounds therefor the following:

1. That the declaration failed to state a cause of action against the defendant, American Creosote Works, Inc.

2. That the plaintiff's cause of action against the defendant, American Creosote Works, if any, was barred by the statute of limitations.

3. That the declaration alleged matters ex delicto and matters ex contractu, which constituted a misjoinder of causes of action.

4. That there was a misjoinder of parties defendant in the declaration.

5. That the plaintiff did not allege any privity of contract between him and the defendant.

6. That the plaintiff alleged in his declaration an efficient, independent, intervening cause of action against the codefendant Power Association which insulated the negligence, if any, of the defendant American Creosote Works.

The demurrer was sustained on the ground that the declaration stated no cause of action against the American Creosote Works, Inc., and on the ground that the declaration did not allege privity of contract between the plaintiff and the defendant. The demurrer was overruled as to all other grounds.

The appellant has assigned and argued two points as grounds for reversal of the judgment of the lower court.

It is first argued that the declaration stated a valid cause of action in tort for the negligent manufacture and sale of a product imminently dangerous to others, and that under the facts alleged in the declaration privity of contract was wholly immaterial on the issue as to the defendant's liability; and the appellant's attorneys cite in support of their contention on that point Holmes v. T. M. Strider & Co., 186 Miss. 380, 189 So. 518, 519, 123 A.L.R. 1190 (1939), in which this Court held that, while a contractor for the reconstruction of a highway bridge was under no duty to maintain the work performed, he was not relieved from liability to a traveler for personal injuries resulting from the negligent manner in which the work was done. The appellant's attorneys also cite in support of their contention that the declaration stated a valid cause of action in tort for the negligent manufacture and sale of an imminently dangerous product the landmark opinion of Justice Cardozo in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas. 1916C, 440 (1916).

It is next argued that, if the court should be of the opinion that a defective electric light pole, as a matter of law, cannot be classified as an imminently dangerous manufactured product, the court should hold, as many courts have held during the last three decades, that, in a tort action for negligence against a manufacturer or supplier, the question whether or not privity of contract existed between the plaintiff and the defendant is wholly immaterial, and that the liability of such manufacturer or supplier should be made to rest upon traditional principles of tort liability, as set forth in Carter v. Yardley & Co., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559 (1946), in which the court abandoned entirely the general rule requiring privity of contract in tort actions against a manufacturer or seller for injury caused by the manufactured product.

We think there was no...