Windram Mfg. Co. v. Boston Blacking Co.

• Decision Date: 02 June 1921
• Parties: WINDRAM MFG. CO. v. BOSTON BLACKING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 123

131 N.E. 454

WINDRAM MFG. CO.

v.BOSTON BLACKING CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 2, 1921.

Appeal from Superior Court, Suffolk County.

Action by the Windram Manufacturing Company against the Boston Blacking Company. From a decree for defendant on demurrer, plaintiff appeals. Affirmed.

The action was brought against a manufacturer of paste or cement used in pasting linings to fabrics for negligence in its manufacture by one who purchased the cement from a third person and not from the manufacturer. The demurrer was on the grounds that no cause of action was stated, and that there was no relation between plaintiff and defendant, and the cause of action, if any, was against the person from whom plaintiff purchased.

G. Philip Wardner, of Boston, for appellant.

Sherman L. Whipple, Lothrop Withington, and William J. Pike, all of Boston, for appellee.

DE COURCY, J.

The first count in the amended declaration alleges in substance that the plaintiff was engaged in the business of pasting linings to fabrics by means of machinery, using in the process a paste or cement, which it purchased from one Ellis; that the defendant manufactured the cement for Ellis, and was aware that it was to be so used by the plaintiff; and that said blacking company negligently manufactured and mixed the paste, so that it injured the fabrics on which it was used, to the pecuniary loss of the plaintiff.

The allegation that the defendant ‘carelessly and negligently’ manufactured and mixed the cement is equivalent legally to a statement that the defendant owed to the plaintiff a duty to exercise reasonable care in making the cement, and failed to perform that duty. Bergeron v. Forest, 233 Mass. 392, 399, 124 N. E. 74. The long-established general rule is that the manufacturer of an article is not liable for negligence in its manufacture to a third person with whom he has no contractual relations. Winterbottom v. Wright, 10 M. & W. 109; Huset v. J. I. Case Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303;Davidson v. Nichols, 11 Allen, 514;Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N. E. 482;Tompkins v. Quaker Oats Co., 237 Mass. --, 131 N. E. 456. See cases collected in 1 Ann. Cas. 755, note; 24 R. C. L. 512; 48 L. R. A. (N. S.) 213, note. Whatever legal obligation the defendant may be under to its customer, Ellis, does not extend to subvendees. See Leavitt v. Fiberloid Co., 196 Mass. 440, 444, 82 N. E. 682,15 L. R. A. (N. S.) 855;Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481,15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436;Gearing v. Berkson, 223 Mass. 257, 260, 111 N. E. 785, L. R. A. 1916D, 1006. The plaintiff has not stated a cause of action in the first count.

The second count contains an allegation that--

‘The defendant in such a way manufactured and mixed and put such materials into the cement * * * that said cement was, as the defendant was well aware, of a deleterious and dangerous character and certain to injure the fabrics and linings to which it should be applied by the plaintiff.’

Apparently it is sought thereby to bring the case within a recognized exception to the above general rule. As that exception ordinarily is stated:

‘An act of negligence of a manufacturer or seller 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 persons who suffer from the negligence regardless of privity of contract.’ 24 R. C. L. 512; Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682;Wellington v. Downer Kerosene Oil Co., 104 Mass. 64;Wilson v. J. G. & B. S. Ferguson Co., 214 Mass. 265, 101 N. E. 381;Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N. E. 474; 1 Ann. Cas. 755, note.

A tendency appears in some recent cases to extend the class of ‘inherently dangerous' articles, so as to include not only those that in their ordinary state are dangerous to health and safety, such as poisons and explosives, but also those that are reasonably certain to place life and limb in peril because of negligent preparation. MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440;Johnson v. Cadillac Motor Car Co., (C. C. A.) 261 Fed. 878, 8 A. L. R. 1023;Krahn v. J. L. Owens Co., 125 Minn. 33, 145 N. W. 626,51 L. R. A. (N. S.) 650; Ann. Cas. 1917E, 584, note. No authority has been called to our attention which imposes a common-law duty of care toward strangers to the contract, upon the maker of an article which is not inherently dangerous, but is likely to cause a loss to property because of careless preparation. See Lukens v. Freiund, 27 Kan. 664, 51 Am. Rep. 429.

The second court also includes an element distinct from negligence, and quite apart from the contract of sale, namely, that of scienter. For the purposes of the demurrer we must assume that the defendant knew that this product was made for the sole use of the plaintiff, and was aware that by reason of its (the defendant's) carelessness in the process of manufacture the cement was certain to injure the fabrics of the plaintiff. This has some of the characteristics of an intentional tort, for which a wrongdoer is liable unless he has a legal justification; but the...