W. T. Pate Auto Co. v. W. J. Westbrook Elevator Co.

• Decision Date: 29 March 1926
• Docket Number: 25114
• Citation: 107 So. 552,142 Miss. 419
• Court: Mississippi Supreme Court
• Parties: W. T. PATE AUTO CO. v. W. J. WESTBROOK ELEVATOR CO. [*]

107 So. 552

142 Miss. 419

W. T. PATE AUTO CO. v. W. J. WESTBROOK ELEVATOR CO. ^[*]

No. 25114

Supreme Court of Mississippi

March 29, 1926

Division A

NEGLIGENCE. Liability of seller of manufactured article to third person is dependent on some fraud or negligence.

Any liabilty of seller of manufactured article for damage from defect therein to a third person with whom he has no contractual relations, is dependent on some fraud, deceit, or concealment, or on some negligence, or omission of duty, such as reasonable inspection to discover defects in material or workmanship, so that no cause of action is stated by mere general charge that elevator, sold by defendant to plaintiff's lessor, was of defective and inferior material and workmanship, and by reason thereof it fell.

HON. V J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, First district, HON. V J. STRICKER, Chancellor.

Suit by the W. T. Pate Auto Company against the W. J. Westbrook Elevator Company. From a decree dismissing the bill, after the sustaining of demurrer thereto, complainant appeals. Affirmed.

Affirmed.

Green Green & Potter, for appellant.

The averments of the bill are a plain statement "in ordinary and concise language under section 338, Hemingway's Code, and maintainable if the cause of action was upon an implied warranty, or if it was upon a breach of duty to the public, or if it was upon negligence of the manufacturer in constructing an elevator with such defective parts as to make it dangerous to operate and whereby the injury complained of, was caused. An elevator in a building is an instrument of transportation or carriage as much so as a railroad train or a bridge. It furnishes transportation of persons and things throughout the length of its operation, and the manufacturer and vendor of the elevator designs it to be used by the public as well as the vendees, and especially by persons who are called upon in the course of business to use the elevator in the building; and as it moves up and down a distance of thirty feet, as averred, it is an instrumentality dangerous in its operation; and that it is dangerous in its operation, if defectively constructed, is known to all men, and especially to the manufacturer thereof.

It is immaterial under the allegations of this bill, which is drawn so as to cover every aspect of liability whether the liability arises to third persons from an implied warranty or negligence or breach of duty. Davis v. Van Camp Packing Co., 17 A. L. R. 650; Boyd v. Coca Cola Bottling Co., 132 Tenn. 23; Pillars v. R. J. Reynolds Tobacco Co., 78 So. 365. It will be perceived from the last case cited that this court sanctions the proposition that the manufacture and sale of a dangerous instrumentality imposes liability upon the manufacturer for injury to the ultimate consumer and the concealed and decaying toe in the plug of tobacco is not nearly so dangerous an agency as defective cogs and appliances in an elevator which are concealed and of which the user has no possible means of detection. See, also, Rainwater v. Hattiesburg Coca Cola Bottling Co., 95 So. 444; Jackson v. Chapman, 64 So. 791.

Mayor, etc. , v. Holmes, 63 So. 454, the case which, we understand, controlled the chancellor in sustaining the demurrer in the case at bar, is inapplicable in its principles to the case of an elevator dangerous in its operation if defectively constructed. There a church was raised by the city through a contractor, and suit was brought by persons who were injured by the giving way of the foundation, and the court held that the responsibility to persons injured, if any, was by the city as it had accepted the building from the contractor. It is to be noted that the court held that before the city, the person who did the work; that is, the manufacturer, could be held liable, there must be some element of deceit or concealment of the dangerous instrumentality, and that the bill of complaint may reasonably be construed to mean that the negligent construction and poor material used in the building were obvious, and that the owner accepted the work without demur; and if this be true, it follows that the owner knew of the defect when it accepted the building. It must be shown that the owner was unaware of the danger, and that the city or its agent concealed the defective material and workmanship. O'Brien v. American Bridge Co., 110 Minn. 364, cited in the Holmes case, is directly in point and substance with the case at bar. In that case, it was a defective bridge, a means or instrumentality to carry persons over a place of danger. An elevator performs the same function; and if it falls, it has the same effect as a bridge falling. This case collects many authorities on different aspects of liability. Bright v. Barnett & Record Co., 26 L. R. A. 524, is directly in point. See, also, Johnson v. Cadillac Motor Car Co., 8 A. L. R. 1023.

If liability is imposed upon a manufacturer for the defective construction of an automobile used for transportation of persons and things, it certainly would be applicable to an elevator which is very much more dangerous in operation than an automobile, the one passing through the air, and the other over land. One of the latest cases reviewing the subject is Heckel v. Ford Motor Co., 128 A. 242, holding: "The manufacturer of an appliance that will become highly dangerous when put to the uses for which it is designed and intended, because of defects in its manufacture, owes to the public a duty, irrespective of any contractual relation, to use reasonable care in the manufacture of such appliances, and such duty calls for and requires the exercise of reasonable care in applying reasonable tests to detect defects and deficiencies in the appliances." See, also, Tom v. Nichols Shoe Mfg. Co., 215 F. 881; Garland v. R. R. Co., 76 N.H. 556; Hakner v. Otis Elevator Co., 89 N.Y.S. 185-7; Kuellin v. Roderick Loan Mfg. Co., 183 N.Y. 78, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691, 75 N.E. 1098; Quitman Co. v. Stritze, 69 Miss. 460; Jones v. Jones, 99 Miss. 600; N. O. & N. E. R. R. Co. v. N. O. G. N. R. R. Co., 107 Miss. 453.

George Butler, for appellee.

In its last analysis the effect here is to make the manufacturer of a freight elevator an absolute insurer of all persons or property using the elevator and, as a consequence, liable in tort or implied warranty for all damages to such persons or property by reason of a defect in the construction of the elevator; notwithstanding the manufacturer is not guilty of any negligence whatsoever in the construction thereof; knows of no defect; made reasonable inspections; was guilty of no fraud or concealment; and did nothing it should not have done and failed to do nothing which it should have done. It seems to us that to state the proposition advanced in this case is sufficient to show there is no liability.

Counsel have cited no cases except those regarding foods, beverages, etc., in which the manufacturer where he was not guilty of negligence or some active willful wrong, has been held liable. In each case cited by appellant, the court found as a fact that the defendant knew of or concealed the defect or was guilty of negligence in the manufacture or construction of the instrumentality which caused the injury. The manufacturer of such instrumentality is liable to third persons only where he knows of the defect in an imminently dangerous product; and in the absence of knowledge of such defect, is liable only to persons in privity of contractual relation. Burkett v. Stubaker Bros., 150 S.W. 421; Pillars v. Reynolds Tobacco Co., 117 Miss. 490; Curtain v. Somerset, 12 L. R. A. 322; Nat'l Savings Bank v. Ward, 100 U.S. 195; Marshall Field v. French, 80 Ill.App. 79; Zeiman v. Keicheifer Mfg. Co., 63 N.W. 1021; Cooley on Torts (3rd Ed.), p. 1486; Husset v. Case Threshing Machine Co., 61 L. R. A. 303; Simon v. Gregory, 120 Ky. 1116; Hudspeth v. Elevator Co. , 122 Ky. 675, 5 L. R. A. (N. S.) 1103.

One of the leading cases on the subject of liability in cases of this kind is Husset v. Case Threshing Machine Co., 51 L. R. A. 303. The court there lays down the general rule to the effect "that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him, for negligence in the construction, manufacture or sale of the articles he handles," and cites cases showing liability was denied to third parties where defects existed in a stage coach, a leaky lamp, a defective chain furnished, improperly hung chandelier, defective valve in an oil car, defective porch on a hotel, defective side saddle, defective rim in balance wheel, defective boiler, defective cylinder in a threshing machine, defective rope on a derrick, defective shelf for a workman to stand upon in placing ice in a box, defective hoisting rope of an elevator, runaway horse, a defective hook holding a heavy weight in a drop press, a bridge, a defective shelf in a dry goods store, a staging erected by a contractor for the use of his employees, and to these may be added cases holding that there is no liability in the case of a defective elevator. Simion v. Gregory, 120 Ky. 116; Hudspeth v. Elevator Co., 122 Ky. 675, 5 L. R. A. (N. S.) 1103; Field v. French, 80 Ill.App. 78; Zieman v. Kieck Elevator Co., 90 Wisc. 497, 63 N.W. 1021.

The same rule has been applied in Ford Motor Co. v. Linsely, 61 Okla. 231, 160 P. 901; and the court in Woods v. Clement, 113 Miss. 720, has adopted the Oklahoma rule that an automobile is not an imminently dangerous agency. One of the most recent cases upon this subject is Windrum Mfg. Co. v. Boston Blacking Co., 17 A. L. R. 669, to which is appended a copious note.

The general rule...